Law Commons^™

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

The Effect Of American Law On Creation Research And Education: Using Grassroots Organization To Respond, Steven Craig Policastro Jr.

Proceedings of the International Conference on Creationism

In recent years, there has been an increase in legal suits and other politically-motivated actions against creation scientists within America's public education system and scientific research community. This judicial action is in addition to the actions of the executive branch of the federal government. In spite of these affronts to our community, a well-organized grassroots movement can help alleviate certain risks of the pervasive hegemony of those who desire to subvert the First Amendment Rights of creation science professionals. Along with a coordinated effort to help protect said First Amendment Rights through a structured approach to advocacy, our community can …

Sacred Spheres: Religious Autonomy As An International Human Right, Diana V. Thomson, Kayla A. Toney

Catholic University Law Review

How should courts resolve thorny human rights disputes that arise within religious groups? According to an emerging international consensus, they shouldn’t. When a case involves sensitive internal decisions by a religious organization, such as choosing who is qualified to teach the faith, courts are increasingly taking a hands-off approach. This global consensus has formed across international treaties, tribunals, and domestic courts in European and American nations. Every major human rights instrument and many international and domestic courts recognize that religious freedom must extend to religious communities, especially houses of worship and schools where believers gather to practice their faith and …

When Life Begins: A Case Study Of The Unitarian Universalism Faith And Its Potential To Combat Anti-Abortion Legislation, Jennifer O'Rourke

University of Cincinnati Law Review

No abstract provided.

Serving A Country That Will Not Accommodate Our Religion: The Sikh American Struggle To Choose Between Career Or Faith, Tanveer Moundi

Golden Gate University Race, Gender, Sexuality and Social Justice Law Journal

Sikhism is the fifth largest religion in the world, with approximately thirty million followers of the faith worldwide. It is a monotheistic faith that teaches honesty, compassion, humility, universal equity, and respect for all religions. Since the 1984 genocide of Sikhs in India, many followers of the faith have immigrated to Western countries in hopes of “the American dream” and the prospect of freely practicing their faith. But as a devastating response to the tragedy of 9/11, members of the Sikh community living in the United States have become victims of hate crimes, workplace discrimination, school bullying, and …

“Do Not Ever Refer To My Lord Jesus Christ With Pronouns”: Considering Controversies Over Religiously Motivated Discrimination On The Basis Of Gender Identity, Linda C. Mcclain

Faculty Scholarship

In the by-now familiar framing “religious freedom versus LGBT+ rights,” perhaps the most visible conflicts today in the United States, and elsewhere, concern the “T”—transgender or gender identity rights. This issue of the Journal of Law and Religion includes a conversation in print between Patrick Parkinson, Laura Portuondo and Claudia Haupt, and Shannon Gilreath on this timely topic, and their contrasting perspectives mirror dimensions of the larger public controversies. Although tweets like those quoted above (by unsuccessful Republican congressional candidate Lavern Spicer) asserting that neither the Bible nor Jesus had pronouns sparked both factual corrections and comical retorts, ³ the …

To Prohibit Free Exercise: A Proposal For Judging Substantial Burdens On Religion, Eric H. Wang

Emory Law Journal

In Employment Division v. Smith, the Supreme Court famously held that the First Amendment Free Exercise Clause permits neutral laws of general applicability to incidentally burden religion without offering religious exemptions. Today, many people—including Justice Alito in his concurrence in Fulton v. City of Philadelphia—are calling for Smith to be replaced by a jurisprudence that applies strict scrutiny to neutral, generally applicable laws that place a substantial burden on religion.

Yet, both before and after Smith, what exactly has constituted a “substantial burden” on religion has been far from clear. While some courts indicate that burdens on …

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

Faculty Articles

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …

Law, Religion, And The Covid Crisis, Mark L. Movsesian

Faculty Publications

This essay explores judicial responses to legal restrictions on worship during the COVID-19 pandemic and draws two lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

Disparate Discrimination, Leah M. Litman

Michigan Law Review

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination.

The two tracks for …

Shifting Standards Of Judicial Review During The Coronavirus Pandemic In The United States, Wendy K. Mariner

Faculty Scholarship

Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve …

Our Work In The World, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

Our work is having a significant impact on the meaning of religious freedom and developments in the role of religion in public life. Read on to find out how we’re shaping the discourse around religious liberty.

The Anti-Secular Regulation Of Religious Difference In Egypt, Meriam Wagdy Azmi

Theses and Dissertations

Egyptian religious freedom activists and researchers have for decades called for more secularism to remedy the violations facing religious minorities. Those religious minorities have been subject to attacks for practicing religious rituals and suffered from lack of recognition by the government. As those activists advocated secularism, some academics critiqued it and deemed it the instigator of the very problems it claims to uproot. Saba Mahmood famously argued that secularism is a primary producer of religious tension in Egypt. In this thesis, I argue that it is not the mere regulation of religious difference as a feature of secularism that is …

Special Solicitude: Religious Freedom At America’S Public Universities, William E. Thro

Office of Legal Counsel Academic Publications

Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression …

Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, Christopher Manettas

Journal of Race, Gender, and Ethnicity

No abstract provided.

Promoting Gender Equity And Foreign Policy Goals Through Ratifying The Convention On The Elimination Of All Forms Of Discrimination Against Women, Raj Telwala

Journal of Race, Gender, and Ethnicity

No abstract provided.

Professor Fish—Why Are You Still Picking On Liberalism?, Micah Schwartzman

FIU Law Review

No abstract provided.

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

Banning The Full-Face Veil: Freedom Of Religion And Non-Discrimination In The Human Rights Committee And The European Court Of Human Rights, Sarah H. Cleveland

Faculty Scholarship

What is, or should be, the relationship between claims of violations of the right to manifest one’s religion as a result of a generally applicable law or policy, and claims of indirect discrimination on grounds of religion?

The interrelationship of human rights protections is not a new question. Just as rights may conflict, rights may also overlap. The arrest of a human rights activist for expressing her views could violate both the prohibition against arbitrary detention and her freedom of expression. Excessive use of force against peaceful demonstrators could violate their rights to freedom of assembly, freedom of expression, and …

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 …

Legal Scholars & Theologians Partner On An Ambitious Vision For Religious Liberty, Elizabeth Reiner Platt

Center for Gender & Sexuality Law

Oct. 6, 2020—To safeguard the right to religious freedom, the next presidential administration must end the hyper-surveillance of Muslims, welcome religious refugees, protect land sacred to Native communities, restore church-state separation, and withdraw policies that favor particular religious beliefs, argues a new report co-authored by the Law, Rights, and Religion Project at Columbia University (LRRP) and Auburn Seminary.

Law's Racism: The Perpetuation Of Settler Colonialism In Ktunaxa V. British Columbia, Christian J. Zukowski

Gettysburg Social Sciences Review

In considering the nexus between law, religion, and settler colonialism I consider a case in which an Indigenous freedom of religion claim under section 2(a) of the Canadian Charter of Rights and Freedoms was ruled by the majority of Supreme Court of Canada as not being a valid freedom of religion claim. In examining this decision, I will construct an analytical framework by which I will examine the decision in a way that considers the legal system in which it occurs, that legal system’s culture, and the relevance of land in this case. Using this analytical framework, I will tease …

The Balance Of Safety And Religious Freedom: Allowing Sikhs The Right To Practice Their Religion And Access Courthouses, Karamvir Dhaliwal

Seattle Journal for Social Justice

No abstract provided.

Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin

Scholarly Works

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …

"Balancing" Free Expression And Religious Feelings In E.S. V. Austria: Blasphemy By Any Other Name?, John G. Wrench

Case Western Reserve Journal of International Law

The European Court of Human Rights’ 2018 decision in E.S. v. Austria upheld an Austrian court’s conviction based on “disparaging religious doctrine.” The Court took this opportunity to reaffirm problematic, decades-old precedent, while creating new contradictions in its analysis of free expression claims. Despite the EU’s modern opposition to the criminalization of blasphemy, E.S. v. Austria in effect sends a contradictory message. This Comment explores the roots of the Court’s struggle to find an appropriate balance between the values of religious tolerance and freedom of expression, analyzes the Court’s recent decision, and suggests future paths to recalibrate the Court’s approach …

The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Historical Foundations And Enduring Fundamentals Of American Religious Freedom, John Witte Jr.

Faculty Articles

For all of their failures and shortcomings, the eighteenth-century founders did indeed begin on the right “path” toward a free society, and today, Americans enjoy a good deal of religious, civil, and political freedom as a consequence. American principles of religious freedom have had a profound influence around the globe, and they now figure prominently in a number of national constitutions and international human rights instruments issued by political and religious bodies.

To be sure, as Adams predicted, there has always been a “glorious uncertainty of the law” of religious liberty and a noble diversity of understandings of its details. …

Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin

Scholarly Works

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …

Stopping The Resurgence Of Vaccine-Preventable Childhood Diseases: Policy, Politics, And Law, Hillel Y. Levin, Stacie Patrice Kershner, Timothy D. Lytton, Daniel Salmon, Saad B. Omer

Scholarly Works

Mandatory vaccination programs in the United States are generally successful, but their continued success is under threat. The ever-increasing number of parents who opt their children out of vaccination recommendations has caused severe outbreaks of vaccine-preventable diseases. Public health advocates have pushed for changes to state laws, but their efforts have generally been unsuccessful. We suggest that their lack of success is due to public health advocates’ failures to contend with the features of the political system that impede change and to propose reforms that are ethically defensible, efficacious, and politically feasible. Based on our earlier public health studies, ethical …