Religion Law Commons^™

Federalist Politics And The Elusive Original Meaning Of The Free Exercise Clause, Jack Thorlin

Catholic University Law Review

Originalism requires interpreting the Constitution by reference to a provision’s original public meaning. But there is very little evidence of original public meaning for some constitutional provisions, most notably the Free Exercise Clause. Originalists have splintered into several different methodological approaches toward the Clause. Justices Scalia and O’Connor staked out opposing originalist views on the Clause thirty years ago in Employment Division v. Smith and City of Boerne v. Flores. In the Roberts Court, some of the conservative justices have attempted to apply a simple textualist interpretation of the Clause, but those efforts have not attracted most of the …

What’S History Without Tradition?, Richard C. Osborne Iii

Catholic University Law Review

For many decades, the Establishment Clause had been a thorn in the Supreme Court’s side. Indeed, no other constitutional provision in recent memory has provided the Court with more trouble than the Establishment Clause. In its efforts to decide whether government conduct violated the Establishment Clause, the Court had applied no less than six tests. And as if that were not bad enough, many of these tests co-existed with one another, leaving government actors left to guess at their own peril which one controlled their fate.

But that officially changed when the Supreme Court decided Kennedy v. Bremerton School District …

Re-Evaluating Fulton V. City Of Philadelphia: A “Narrow” “Wisp” Of A Decision Or Free Exercise “Bedrock?”, Mark Rienzi

Catholic University Law Review

In Fulton v. City of Philadelphia (2021), a unanimous Supreme Court held that Philadelphia violated the Free Exercise Clause by excluding Catholic Social Services from participating in its foster program because CSS would not certify same-sex couples. Both supporters and critics of the Court’s decision publicly characterized the decision as “narrow” and noted that Philadelphia (and other governments) can easily sidestep Fulton and continue excluding religious providers from foster and adoption programs.

Four years later, the evidence shows that Fulton is anything but narrow. In Philadelphia and in other jurisdictions, Fulton has played a strong role in ending litigation against …

Foundations Of The Right Of Charitable Uses, Adam J. Macleod, Mark David Hall

Scholarly Articles

In recent years, municipalities around the United States have enacted ordinances that prohibit or restrict food-sharing in public places. These ordinances make it difficult for charitable souls to share food with those most in need. In one case, a town in Arizona arrested a woman under an ordinance that prohibits sharing food in public for charitable purposes.
The closest analogs to these laws are the English anti-almsgiving acts of the fourteenth and sixteenth centuries. One must look that far back in history because infringements of the right of charitable uses of property are exceedingly rare. Indeed, throughout the history of …

Group Ownership And The Ends Of Legal Fictions, Adam J. Macleod

Scholarly Articles

The march of the progressive societies was, as we all know, from status to contract. And now? And now that forlorn old title is wont to introduce us to ever new species and new genera of persons, to vivacious controversy, to teeming life; and there are many to tell us that the line of advance is no longer from status to contract, but through contract to something that contract cannot explain, and for which our best, if an inadequate, name is the personality of the organized group.

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 …

The Bare Necessity Of Natural Law, Adam J. Macleod

Scholarly Articles

According to legend, someone asked literary giant Samuel Clemens, better known as Mark Twain, whether he believed in infant baptism. He replied that, not only did he believe in it, he’d seen it done. Hundreds of generations of lawyers and jurists, including many of the most influential legal scholars and judges in history, have believed in natural law for the same reason. And many still do.

Natural law and natural rights are not “nonsense on stilts,” as Jeremy Bentham famously dismissed them.1 Natural law reasoning is what lawyers and judges do every day. Today, many people tend to think of …

Playing God In The 21st Century: How The Push For Human Embryonic Germline Gene Editing Sidelines Individual And Generational Autonomy, Anna E. Melo

Catholic University Journal of Law and Technology

Every four and a half minutes a child with a genetic birth defect is born in the United States. For some, these conditions are treatable and manageable, but sadly for others, they are a death sentence. Congenital malformations and chromosomal abnormalities are the leading cause of infant mortality. CRISPR-Cas9 presents hope for the future, a liberation from the heritable genetic shackles that a child would otherwise be trapped in. With such optimism for future applications of germline gene editing, there are also great concerns with what national and global limitations and auditing must be in place to permit “genetic hedging.” …

Mysterizing Religion, Marc O. Degirolami

Scholarly Articles

In this short essay, I suggest that "mysterizing" religion may change the stakes in some of the most controversial contemporary conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above-to develop and press the view that a certain subject or phenom-enon is not merely unknown, but unknowable by human beings. At the very least, such mysteries are unknowable by those human beings who have charge of the secular legal order of earthly human affairs, Paul's "princes of this world." That is what I propose to …

New Light On The History Of Free Exercise Exemptions: The Debates In Two Eighteenth-Century State Legislatures, Stanton D. Krauss

Catholic University Law Review

As Justice Gorsuch pointed out in his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1734 (2018), there is an ongoing debate about whether the First Amendment ever requires the recognition of religion-based exemptions to neutral and generally applicable laws. The leading proponent of such exemptions has argued that the original understanding of the Free Exercise Clause supports his claim, and that the existence of such exemptions in preconstitutional American statutes – which he believed to have been granted because legislators thought them mandated by “the free exercise principle” – is one factor …

Subsidiarity & Vulnerability Theory: A Case Study For Deepening The Relationship Between Catholic Social Teaching And The Responsive State, Nathaniel Romano

Catholic University Law Review

Religion and religious voices have long had a role to play in shaping community norms and values and public policy; this role continues in contemporary America. Yet, legitimate questions arise about the extent of this role and its place in a pluralist and democratic state. These questions are particularly pronounced when religion is perceived as partisan, a situation that seems apparent in contemporary America. Hoping to combat this perception, this paper explores the relationship between Catholic Social Teaching and Vulnerability Theory, aiming to show how religious values can inform legal theory across the political spectrum. This paper surveys both Catholic …

Church And State And Child Endangerment, Raymond C. O'Brien

Scholarly Articles

As media in the United States revealed the number of minors sexually abused by clergy, the gravity of the offenses, and the inability to prosecute the offenders, a second offense was revealed. Gradually it was illustrated that bishops and their diocesan administrators knew of credible sexual crimes against children committed by clergy and they responded by protecting offenders, ignoring victims, and knowingly reassigning credibly accused clergy to other placements where they could endanger additional minors. In response to these developments the United States Conference of Catholic Bishops published policies to protect children, enacted norms to be followed in each diocese, …

At The Intersection Of Due Process And Equal Protection: Expanding The Range Of Protected Interests, Vincent J. Samar

Catholic University Law Review

Are the Due Process and Equal Protection clauses interconnected? Justice Kennedy in Obergefell v. Hodges, the Supreme Court case holding the fundamental right to marry includes the right to a same-sex marriage, stated that they are profoundly connected in that each clause “may be instructive as to the meaning and reach of the other.” But exactly what instruction each doctrine might afford the other, Justice Kennedy did not say. An earlier Supreme Court decision, Plyler v. Doe, also suggested a connection, when the Court held unconstitutional a Texas statute baring funding for the education of undocumented children. But …

The Religious Roots Of The Progressive Income Tax In America, Joshua Cutler

Catholic University Law Review

I examine the debate over the first peacetime income tax in the United States in 1894 to investigate the role of religion in enacting the tax and providing moral legitimacy. I find that congressional proponents repeatedly and explicitly argued that a progressive income tax was a biblical tax that best conformed to Judeo-Christian teachings on economics and fundraising. I discuss the history of American religious fundraising practices, including the trend leading up to 1894 that advocated for proportionate giving of income as the best method of giving, as well as the related tithing movement. I document that congressional income tax …

Introduction: The Future Of Religious Liberty In America, Mark L. Rienzi

Catholic University Law Review

No abstract provided.

Recognizing Anti-Zionism As An Attack On Jewish Identity, Alyza D. Lewin

Catholic University Law Review

This article answers the false assertion that Zionism is nothing more than a political movement that should be abandoned by Jewish students on American university campuses. Yearning for the Land of Israel and Jerusalem is, in fact, a deep spiritual integral part of Jewish identity. It dates back 3000 years to Biblical times. The connection of Jews to Zion is a key component of Jews' shared ancestry and ethnicity and has persisted throughout Jewish history. This dedication is demonstrated today by the custom that concludes a Jewish wedding ceremony and by the declaration ending the Passover Seder. Harassment of students …

A Hollow History Test: Why Establishment Clause Cases Should Not Be Decided Through Comparisons With Historical Practices, Alex J. Luchenitser, Sarah R. Goetz

Catholic University Law Review

Some judges, scholars, and advocates have criticized the Supreme Court’s Establishment Clause jurisprudence, arguing that existing Establishment Clause tests give courts too little guidance and too much discretion, and calling on the Court to replace those tests with a test that compares challenged practices to long-standing historically accepted ones. But such a historical-practice test would be much more difficult to apply than the Court’s current jurisprudence and would engender greater confusion among lower courts than there is now.

That’s because there are very few long-standing historical practices that are legitimate candidates for serving as evidence of the intent of the …

Mastering Masterpiece, Kristen K. Waggoner

Catholic University Law Review

Religious freedom ensures that every person has the right to explore life’s deepest questions and to live out their religious convictions in public life. Free speech similarly ensures that all have the liberty to express their views and pursue truth without fear of government punishment. Free exercise of religion and free speech are durable rights that do not turn on cultural popularity or political power; these freedoms enable us to coexist peacefully with each other despite deep differences. Yet these freedoms are being sorely tested today by government efforts to suppress the rights of creative professionals—painters, filmmakers, printers, and many …

Administrative Power And Religious Liberty At The Supreme Court, Mark L. Rienzi

Scholarly Articles

The Supreme Court has recently seen an increase in the number of religious exercise cases in which the conflict was caused by an act of administrative power, rather than an act of legislative power. There are probably several reasons for this increase, including the growth, size, and flexibility of the administrative state, political convenience, and the fact that administrators tend to be specialists who may be unaware of or undervalue competing interests like religious liberty.

While the sheer size, reach, flexibility, and specialization of the administrative state means we will likely continue to see more religious exercise conflicts caused by …

Religious Organizations As Partners In The Global And Local Fight Against Human Trafficking, Mary Graw Leary

Scholarly Articles

This paper explores the role of religious organizations as effective partners in the fight to end modern day slavery. As a crime with both global and local dimensions, trafficking must be combatted with tools that are both global and local. Such tools include the world’s religions and religious organizations. They have been addressing human trafficking for decades, and through their work with the poor, immigrants, and sexually exploited, they possess significant knowledge of the manifestations of this form of exploitation and can be important stakeholders in combating it. The paper concludes by offering several recommendations for how policymakers can deepen …

Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi

Scholarly Articles

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme …

Tears In Heaven: Religiously And Culturally Sensitive Laws For Preventing The Next Pandemic, Eloisa C. Rodriguez-Dod, Aileen Maria Marty, Elena Maria Marty-Nelson

Catholic University Law Review

This Article argues that laws created to curtail the spread of deadly contagious diseases need to be drafted and implemented in ways that maximize acceptance of an affected communities’ cultural and religious beliefs. When laws are put in place that are inconsistent with community mores, the overall goal of stopping an epidemic is threatened. Communities often distrust government and other relief organizations who mandate rules and regulations that impinge their religious and cultural beliefs; thus, these regulations geared at helping communities can paradoxically undermine the goal of preventing the spread of infectious disease.

This Article focuses on the need for …

Exceptionalism Unbound: Appraising American Resistance To Foreign Law, Mark C. Rahdert

Catholic University Law Review

In a statewide referendum, voters approved a change to the Oklahoma state constitution, adopting restrictions on state judges’ ability to use of foreign law. Dubbed the “Save Our State” (“SOS”) Amendment, the measure forbade Oklahoma state judges from considering or using international or foreign law, except where required to do so by federal statutes or treaties. The SOS Amendment particularly prohibited the use of Sharia law. Similar measures (usually without specific references to Sharia law) have been proposed or adopted elsewhere.

These Amendments, as well as other developments in American politics, reflect a vigorous new strain of a deep-seated tendency …

At The Intersection Of Religious Organization Missions And Employment Laws: The Case Of Minister Employment Suits, Jarod S. Gonzalez

Catholic University Law Review

Reviewing the intersection of a religious organization’s right to select employees based on their goals and mission and modern employment law, this article argues that the analysis of the ministerial exception will depend on the type of suit brought. Specifically, the Article identifies five analytical categories: (1) employment discrimination/employment retaliation claims; (2) breach of employment contract claims; (3) whistleblower claims; (4) tort claims; and (5) miscellaneous claims.

The Article begins by describing the ministerial exception and ecclesiastical abstention doctrines that exist under the First Amendment through the lens of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School …

Fool Me Twice: Zubik V. Burwell And The Perils Of Judicial Faith In Government Claims, Mark L. Rienzi

Scholarly Articles

This article proceeds in three parts. Part I examines the three government concessions that made the Supreme Court’s Zubik decision possible and how those concessions ultimately revealed that it is possible to protect both contraceptive access and religious liberty. Part II discusses how the circuit courts were brought to emphatically adopt positions the government would ultimately abandon under the slightest pressure. Part III concludes with some key lessons lower courts should take from Zubik to better protect the integrity of both the court system and religious-liberty laws.

“Social Love” As A Vision For Environmental Law: Laudato Si’ And The Rule Of Law, Lucia A. Silecchia

Scholarly Articles

In the years of his still-young papacy, Pope Francis has often spoken and written about ecological responsibility, addressing both the Catholic and global communities in his exhortations on environmental matters. In June of 2015, he released his most extensive exposition on these issues in his encyclical letter, Laudato Si: On Care for Our Common Home.In this wide-ranging encyclical, Pope Francis expressed a fascinating paradox with respect to law and ecology. On the one hand, Laudato Si’ contains a stunningly enthusiastic endorsement of a strong local, national and, in particular, international legal system empowered to impose strict environmental and economic controls …

Two Aspects Of Liberty, John H. Garvey

Scholarly Articles

Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do …

Laudato Si’ And Care For Our Common Home: What Does It Mean For The Legal Profession?, Lucia A. Silecchia

Scholarly Articles

Pope Francis’s recent encyclical, Laudato Si’ (“Praised Be You”), has been one of the most widely anticipated papal documents in recent memory. It has also received far more popular commentary than would be expected of a papal encyclical. Yet, while Laudato Si’ has been widely dubbed “the climate change” encyclical, it is far broader than that. It is also a far-reaching analysis of a number of political, economic, social and legal issues, in addition to being an extensive exposition on human duties toward creation.

In the text of this encyclical, there are also some important lessons to be gleaned for …

The Catholic Law School & Constitutional Self-Government, The Honorable Diarmuid F. O'Scannlain

Catholic University Law Review

Diarmuid F. O’Scannlain serves as a Circuit Judge of the United States Court of Appeals for the Ninth Circuit. This talk was delivered at the Columbus School of Law, The Catholic University of America on September 15, 2014 for the 2014 Brendan F. Brown Lecture and has been adapted and updated for this article format.

Substantive Due Process As A Two-Way Street: How The Court Can Reconcile Same-Sex Marriage And Religious Liberty, Mark L. Rienzi

Scholarly Articles

Last month, the potential conflict between same-sex marriage and religious liberty prompted death threats, arson threats, and the temporary closure of a small-town pizzeria in Indiana. The restaurant’s owner had admitted to a reporter that she could not cater a hypothetical same-sex wedding because of her religious beliefs (even though she otherwise serves gay customers in her restaurant). Threatened with violence over her unpopular religious belief, the owner was forced to close the restaurant, uncertain if she could ever reopen.

Leading up to oral argument in the same-sex marriage cases, it was reasonable to wonder whether the Indiana episode was …