Law Commons^™

Religious Soft Power In Russian Foreign Policy: Constitutional Change And The Russian Orthodox Church, Robert C. Blitt

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In this policy brief, Robert C. Blitt explores how the Kremlin continues to deepen its reliance on the Russian Orthodox Church-Moscow Patriarchate (ROC) as a lever of soft power in Russian foreign policy. Constitutional amendments ratified in July 2020 suggest that this church-state partnership is poised to grow stronger in the coming years. Recognizing that the ROC’s international undertakings function to echo Kremlin objectives, policymakers should consider scrutinizing church activities and interactions with civil society and government interlocutors, with an eye toward identifying and minimizing opportunities for Kremlin influence and interference.

This policy brief was written as part of the …

Russia’S 2020 Constitutional Amendments And The Entrenchment Of The Moscow Patriarchate As A Lever Of Foreign Policy Soft Power, Robert C. Blitt

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Much has been written about the Kremlin’s embrace of the Russian Orthodox Church—Moscow Patriarchate (ROC) as a lever of soft power for advancing Russia’s foreign policy. Based on the substance of the constitutional amendments ratified in July 2020, this chapter reasons that the church-state partnership is poised to grow stronger and more entrenched in the coming years.

After briefly highlighting the energizing effect several key constitutional amendments are likely to have on existing Kremlin foreign policy objectives, this chapter offers an assessment of the ROC’s central role in disseminating and advocating these newly minted constitutional norms across its international platforms …

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

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For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, …

The Forest And The Trees: What Educational Purposes Can A Course On Christian Legal Thought Serve?, Randy Beck

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In this short essay, I want to consider the educational purposes a course in Christian legal thought might serve. How could having such a course in the curriculum help accomplish the goals of legal education? One can understand why a law school with a Christian identity would want to offer this sort of course. Such law schools embrace a theology that helps adherents make sense of the world, including the world of human law. The less obvious question I want to consider is why a law school that does not subscribe to a particular theological understanding of the world (or …

Adjudicating Religious Sincerity, Nathan Chapman

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Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility …

Beyond The Basketball Court: How Brittney Griner's In My Skin Illustrates Title Ix's Failure To Protect Lgbt Athletes At Religious Institutions, Leslie C. Griffin

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Symposium: Playing with Pride: LGBT Inclusion in Sports.

Unlike schoolteachers, janitors, coaches, food-service directors, organists, and other workers, professional athletes usually command center stage in society. Their successes and failures loom larger than life. Sometimes their prominent lives highlight themes hidden from public discussion or neglected by the majority. Professional basketball player Brittney Griner's autobiography does just that, by illuminating how "religious freedom" can undermine equality, especially LGBT equality.

The Establishment Clause, State Action, And Town Of Greece, Nathan Chapman

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The Establishment Clause forbids the government from engaging in the same religious exercise that the law protects when performed by a private party. Thus, an establishment case often turns on whether religious activity is "state action." Too often, however, courts ignore the state action analysis or merge it with the substantive Establishment Clause analysis. This muddles both doctrines and threatens individual religious liberty.

This Article argues that the state action doctrine should account for the government's distribution of private rights. Accordingly, the Constitution applies to the government's distribution of rights, but not to a private party's use of those rights. …

Rethinking Religious Minorities' Political Power, Hillel Y. Levin

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This Article challenges the assumption that small religious groups enjoy little political power. According to the standard view, courts, because of their countermajoritarian qualities, are indispensable for protecting religious minority groups from oppression by the majority. But this assumption fails to account for the many and varied ways in which the majoritarian branches have chosen to protect and accommodate even unpopular religious minority groups, as well as the courts’ failures to do so.

The Article offers a public choice analysis to account for the surprising majoritarian reality of religious accommodationism. Further, it explores the important implications of this reality for …

Book Review: "The Tragedy Of Religious Freedom", Ian C. Bartrum

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Ian Bartrum reviews Marc DeGirolami's The Tragedy of Religious Freedom (Harvard University Press 2013).

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

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This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes …

Whither Secular Bear: The Russian Orthodox Church’S Strengthening Influence On Russia's Domestic And Foreign Policy, Robert C. Blitt

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As 2012 presidential elections in Russia draw near, evidence points to a collapse in that country’s constitutional obligation of secularism and state-church separation. Although early signs of this phenomenon can be traced back to the Yeltsin era, the Putin and Medvedev presidencies have dealt a fatal blow to secular state policy manifested both at home and abroad, as well as to Russia’s constitutional human rights principles including nondiscrimination and equality of religious beliefs.

The first part of this article argues that leadership changes in the Russian government and the Russian Orthodox Church (ROC) have triggered an unprecedented deepening of state-ROC …

Defamation Of Religion: Rumors Of Its Death Are Greatly Exaggerated, Robert C. Blitt

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This Article explores the recent decisions by the United Nations (“UN”) Human Rights Council and General Assembly to adopt consensus resolutions aimed at “combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief.” These resolutions represent an effort to move past a decade’s worth of contentious roll call votes in favor of prohibiting defamation of religion within the international human rights framework. Although labeled “historic” resolutions, this Article argues that the UN’s new compromise approach endorsed in 2011 — and motivated in part by the desire to end years …

Politics Of The Headscarf In Turkey: Masculinities, Feminism, And The Construction Of Collective Identities, Valorie K. Vojdik

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No abstract provided.

Snyder V. Phelps: Searching For A Legal Standard, Leslie C. Griffin

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No abstract provided.

Review Essay: Religion And Politics 2008-2009: Sometimes You Get What You Pray For, Leslie C. Griffin

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No abstract provided.

Faithful Hermeneutics, Francis J. Mootz Iii

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This article was presented at the Annual Meeting of the Association of American Law Schools on January 9, 2009 as part of a panel on "Scriptural and Constitutional Hermeneutics." The panel was co-sponsored by the Law and Religion Section, Section on Jewish Law, and Section on Islamic Law, and the papers will be published by the Michigan State Law Review.

My article compares legal and religious hermeneutics by exploring the dual nature of what I term "faithful hermeneutics." The ambiguity evoked by this phrase is intentional. On one hand, it suggests an investigation of the relationship between legal and religious …

Pleasant Grove V. Summum: Losing The Battle To Win The War, Ian C. Bartrum

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This short essay explores the potential doctrinal implications of the Supreme Court's recent decision in Pleasant Grove v. Summum.

The Political Origins Of Secular Public Education: The New York School Controversy 1840-1842, Ian C. Bartrum

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As the title suggests, this article explores the historical origins of secular public education, with a particular focus on the controversy surrounding the Catholic petitions for school funding in nineteenth-century New York City. The article first examines the development of Protestant nonsectarian common schools in the northeast, then turns to the New York controversy in detail, and finally explores that controversy's legacy in state constitutions and the Supreme Court. It is particularly concerned with two ideas generated in New York: (1) Bishop John Hughes' objection to nonsectarianism as the 'sectarianism of infidelity'; and (2) New York Secretary of State John …

The Genesis Of Rluipa And Federalism: Evaluating The Creation Of A Federal Statutory Right And Its Impact On Local Government, Patricia E. Salkin, Amy Lavine

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In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate …

"Curst Be He That Moves My Bones:" The Surprisingly Controlling Role Of Religion In Equitable Disinterment Decisions, Peter Zablotsky

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No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981(Eighteenth Annual Supreme Court Review), Eileen Kaufman

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No abstract provided.

Political Reason, Leslie C. Griffin

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No abstract provided.

Review Essay: Religion And Politics 2004-2007, Leslie C. Griffin

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No abstract provided.

The Constitutional Structure Of Disestablishment, Ian C. Bartrum

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This article proceeds in the structuralist tradition, which Professor Charles Black describes as "the method of inference from the structure and relationships created by the Constitution." The article takes a structural approach to the Establishment Clause: it reexamines the theoretical foundations of disestablishment, and infers a constitutional structure designed to create a dialectical relationship between political institutions and social institutions. The structural thesis requires that our political institutions safeguard individual liberty of conscience by bracketing all religious questions. The antithesis ensures the existence of free and independent social organizations dedicated to building public virtue. The article then applies the structural …

The City Of God And The Cities Of Men: A Response To Jason Carter, Randy Beck

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Law school seminars sometimes educate the professor as much as the students. That proved true for me in the spring of 2004, when seventeen law students and two colleagues from other departments joined me for a seminar focused on ancient and contemporary perspectives on law found within various Christian theological traditions. One seminar student who repeatedly spurred my own thinking was Jason Carter. Particularly thought provoking was the paper Jason presented in the final weeks of the seminar.

The returns from the 2004 election suggested that Jason had been unusually prescient in his analysis of U.S. religious and political trends. …

Everything Lawyers Know About Polygamy Is Wrong, S. Crincoli (Sigman)

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No abstract provided.

Early Land Use Cases, Continued Uncertainty - The Religious Land Use And Institutionalized Persons Act, Gregory M. Stein

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No abstract provided.

Reflections On The Practice Of Law As A Religious Calling, From A Perspective Of Jewish Law And Ethics, Samuel J. Levine

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This Essay is based on introductory remarks Levine delivered at the inaugural conference of the Pepperdine Institute on Law, Religion, and Ethics, "Can the Ordinary Practice of Law be a Religious Calling?," held on February 6-7, 2004 at Pepperdine University School of Law. In thinking about the practice of law as a religious calling, Levine argues that we should first consider the broader issue of the general relevance of religion to various areas of life, including work. From a perspective of Jewish law and ethics, moral conduct comprises an imperative at home and at the workplace no less than at …

Hospital Chaplaincy Under The Hipaa Privacy Rule: Health Care Or "Just Visiting The Sick?", Stacey A. Tovino

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Approximately seventy-nine percent of Americans believe that praying can help people recover from illness, injury or disease, and nearly seventy-seven percent of American patients would like spiritual issues discussed as part of their care. Despite Americans' strong beliefs in the health-related benefits of religious and spiritual practices and traditions, the preamble to the federal Department of Health and Human Services' ("HHS") health information privacy rule (the "Privacy Rule") explains that health care "does not include methods of healing that are solely spiritual" (the "preamble"). The preamble concludes that, "clergy or other religious practitioners that provide solely religious healing services are …

Taking Prosecutorial Ethics Seriously: A Consideration Of The Prosecutor's Ethical Obligation To Seek Justice In A Comparative Analytical Framework, Samuel J. Levine

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This article examines the complex nature of the prosecutor's broad obligation to seek justice through a consideration of the similarly broad directive in Jewish law requiring that "in all [of] your ways acknowledge [God]." While many have critiqued the broad directives governing a prosecutor's ethical duties, through this comparative analytical framework it can be seen that the prosecutor's broad ethical directive to seek justice serves as a workable and appropriate standard for prosecutorial ethics. In many ways, a prosecutor faces an ethical obligation unlike other attorneys. Ethical obligations require that a prosecutor forgo conduct that would increase the likelihood of …