Law Commons^™

The Religious Freedom Restoration Act, Trinity Lutheran, And Trumpism: Codifying Fiction With Administrative Gaslighting, Robin S. Maril

Northwestern Journal of Law & Social Policy

This article addresses the Trump administration’s consistent misinterpretation and misapplication of legal precedent to support unnecessary religious exemptions that exceed Constitutional mandates and impair the rights of third parties to access federal services and programs. Proponents of this routinized repeal of civil rights protections argue that the Trump administration is merely restoring the correct balance of religious liberties in the federal government. However, the regulations and policies included in this campaign unconstitutionally broaden the already robust religious protections provided by statutes and court decisions and have the effect of dismantling the civil rights infrastructure of the past 50 years.

Despite …

Charity Disparity: The Challenge Of Applying Religious Law On Zakāt In The United States, Ahmed E. Taha, Sohaib I. Khan

Northwestern Journal of Law & Social Policy

No abstract provided.

Revisiting Erisa’S Church Plan Exemption After Advocate Health Care Network V. Stapleton, Emily Morrison

Northwestern University Law Review

For much of the last forty years, ERISA’s church plan exemption has existed quietly without much fanfare. But increased litigation over the last five years has dragged the exemption into the spotlight. The litigation focuses on religiously affiliated hospital systems and whether their pension plans have been correctly classified as church plans exempt from ERISA.

This Note examines the history behind the church plan exemption, including statutory modifications made in 1980 and the IRS’s longstanding interpretation of these changes, which precipitated the dispute at issue in the current wave of litigation. While the U.S. Supreme Court’s recent decision in Advocate …

The Democratic First Amendment, Ashutosh Bhagwat

Northwestern University Law Review

Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five …

Doe V. Elmbrook School District And The Importance Of Refocusing Establishment Clause Jurisprudence, Julie M. Karaba

Northwestern University Law Review

No abstract provided.

Ties That Bind? The Questionable Consent Justification For Hosanna-Tabor, Jessie Hill

NULR Online

No abstract provided.

Phony Originalism And The Establishment Clause, Andrew M. Koppelman

Faculty Working Papers

The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

The New American Civil Religion: Lesson For Italy, Andrew Koppelman

Faculty Working Papers

American civil religion has been changing, responding to increasing religious plurality by becoming more abstract. The problem of increasing plurality is not only an American one. It is also presented in Italy, where civic identity has been centered around a Catholicism that is no longer universal. Perhaps Italy has, in this respect, an American future.

How Shall I Praise Thee? Brian Leiter On Respect For Religion, Andrew Koppelman

Faculty Working Papers

In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the "thick" sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In this paper, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter's analysis.

No Respect: Brian Leiter On Religion, Andrew Koppelman

Faculty Working Papers

In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the "thick" sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In this paper, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter's analysis.

Corruption Of Religion And The Establishment Clause, Andrew Koppelman

Faculty Working Papers

Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This paper explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion.

If the religion-protective argument for disestablishment is to be useful today, it cannot …