Religion Law Commons^™

The Reawakening Of Marriage, Raymond C. O'Brien

Scholarly Articles

This Article contends that the convergent societal pressures from the same-sex marriage debate, the effect of the welfare legislation to define family, and the allowance of greater religious involvement in marriage preparation and divorce will precipitate a reawakening of marriage. The emergence of covenant marriage, the public debate over no-fault divorce, the resurgence of fault grounds, and Florida's enactment of its Marriage Preparation and Preservation Act are ramifications of this reawakening. Public concern over the frequency of divorce and the resulting adverse consequences for children and adults, indicate a change in attitude concerning marriage, divorce and family. Covenant marriage is …

Religious Liberty And The Politics Of Judicial Review, Robert A. Destro

Scholarly Articles

No abstract provided.

Régime Des Cultes Et Liberté Religieuse En Europe: Relectures Américaines, Robert A. Destro

Scholarly Articles

No abstract provided.

Death, Dying, And Burial: Approaches In Religious Law And Practice, William J. Wagner

Scholarly Articles

No abstract provided.

The Bishops' New Statement On Abortion: Why It Isn't Accomplishing Much Of Anything., Raymond B. Marcin

Scholarly Articles

No abstract provided.

Catholic Judges In Capital Cases, John H. Garvey

Scholarly Articles

No abstract provided.

Single Gender Marriage: A Religious Perspective, Raymond C. O'Brien

Scholarly Articles

This Article will offer a religious perspective which is a response to the legal arguments in favor of single-gender marriage. Three arguments will be made: first, that the religious perspective identified and associated with the Roman Catholic tradition offers a fundamental basis for family life that has been proven to be beneficial to society as a whole, and to the message of revelation consigned to Christians by Jesus Christ; second, inasmuch as the religious perspective is being contradicted by judicial interpretation rather than through legislative process, a tyranny of judicial activism has and is subverting a public policy consensus; and …

On Doing Justice And Walking Humbly With God: Catholic Social Thought On Law As A Tool For Achieving Justice, Lucia A. Silecchia

Scholarly Articles

The text of the 1996 “Mirror of Justice” lecture at the Catholic University of America, this article explores the potential - and the limitations - of law as a tool for achieving justice. Drawing heavily on principles of Catholic social thought, it also considers the various ways in which “justice” may be defined.

What’S Next After Separationism?, John H. Garvey

Scholarly Articles

Professor Carl Esbeck argues in his article' that the traditional theory of separationism is giving way to a theory of equality (or more accurately, protection for religious choice). The argument is very astute, and I agree with much of it. I will give my own perspective on the same two points.

The Architecture Of The Establishment Clause, John H. Garvey

Scholarly Articles

No abstract provided.

Religious Freedom In The Courts: The 1996–1997 Term Of The United States Supreme Court, Robert A. Destro

Scholarly Articles

No abstract provided.

The Real Reason For Religious Freedom, John H. Garvey

Scholarly Articles

No abstract provided.

An Anti-Liberal Argument For Religious Freedom, John H. Garvey

Scholarly Articles

I want to consider why we protect freedom of religion as a constitutional right. The commonsense answer, which I think hits close to the truth, is that we protect it because religion is important. I will try to show that this answer is better than the alternatives which liberal theory offers.

All Things Being Equal, John H. Garvey

Scholarly Articles

I will discuss the effect that the proposed Religious Equality Amendment might have on existing First Amendment law.

Developments In Liability Theories And Defenses, Robert A. Destro

Scholarly Articles

Litigators with experience in the field of religious liberty believe that courts do not seem to take religious liberty claims and defenses very seriously; however, it is difficult to know why. To be sure, the anecdotal evidence is certainly there, not only in the reported cases, but also in the actual courtroom experiences of those who attempt to raise religious liberty claims and defenses. In one Texas tort case, a trial court judge stated that she would not permit the Church "to hide behind the first amendment;" in a Maryland case a number of years ago, I was asked by …

‘By What Right?’: The Sources And Limits Of Federal Court And Congressional Jurisdiction Over Matters ‘Touching’ Religion, Robert A. Destro

Scholarly Articles

This Article examines the extent to which the Court's power "to say what the law is"" on the sensitive subject of religious liberty has been, and continues to be, constrained by the lawmaking powers of Congress and the states. Though the topic is obviously an important one, it has not been examined systematically. Most of the case law and commentary focuses on the limits which the Constitution imposes, or should be held to impose, on the powers of Congress and the states. The Court's power to define those limits appears, by contrast, to be one of those "fundamental assumptions [that] …

The Structure Of The Religious Liberty Guarantee, Robert A. Destro

Scholarly Articles

No abstract provided.

Aba And Aals Accreditation: What’S ‘Religious Diversity’ Got To Do With It?, Robert A. Destro

Scholarly Articles

The subject of this essay is whether, and under what circumstances, the religious commitment of an institution should become an issue in the law school accreditation process. Originally presented at the March 1994, Marquette University Conference on Religiously Affiliated Law Schools, this essay begins with the commonly shared assumption that some tensions do exist between religiously affiliated law schools and their accrediting agencies, the American Bar Association (ABA), and the Association of American Law Schools (AALS). For present purposes, the task will be to differentiate those tensions that arise from the accreditation process itself, and those that arise from the …

Hauerwas On Religious Freedom, John H. Garvey

Scholarly Articles

No abstract provided.

The Pending Gauntlet To Free Exercise: Mandating That Clergy Report Child Abuse, Raymond C. O'Brien, Michael T. Flannery

Scholarly Articles

This Article analyzes the conflict between statutory child abuse reporting requirements for clergy and the clergy-communicant privilege for confidential communications made within specific religious practices. The constitutional conflict arises between the state's interest in the protection of children by requiring that suspected cases of abuse be reported and the clergy's interest in the free exercise of their religious tenets by maintaining confidentiality. This analysis recognizes that state legislators have broadened reporting requirements to include more and more classes of people in an effort to arrest the tremendous increase in child abuse in the past decade. As a result, the shield …

Churches And The Free Exercise Of Religion, John H. Garvey

Scholarly Articles

The first amendment says that "Congress shall make no law . . . prohibiting the free exercise" of religion. This rule is most often used to protect individuals (religious speakers, pacifists, people claiming public benefits). This is hardly surprising. We naturally think that free exercise is an individual right, as we think that religion is a personal and private affair. I want to dispute (more modestly, to qualify) that view. I will argue that we should (sometimes) see the freedom of religion as a group right, which can conflict with, and take precedence over, individual rights.

Comment On Church And State In Seventeenth And Eighteenth Century America, John H. Garvey

Scholarly Articles

No abstract provided.

Developments In The Law Of Church-State Relations: The 1987 Term Of The United States Supreme Court, Robert A. Destro

Scholarly Articles

No abstract provided.

Pedophilia: The Legal Predicament Of Clergy, Raymond C. O'Brien

Scholarly Articles

This Article identifies the present posture of child abuse and admits that the incidence of child sexual abuse among members of the clergy is documental. Indeed, incidents of child abuse seem to be more common each day throughout all segments of the population. This has affected public trust and the public has responded by revoking such traditional clerical prerogatives as the priest-penitent privilege, developing a theory of abuse in gestation, and demanding better treatment for offenders through therapy.

The precise scope of this Article is to offer recommendations concerning the legal, medical and social predicament of pedophilia regarding issues that …

The New Reproductive Technologies And The Law: A Roman Catholic Perspective, William J. Wagner

Scholarly Articles

In the next several years, the new reproductive technologies will, for better or worse, affect the civil law governing society's most basic relationships and the rights and duties that accompany them. As lawmakers deliberate over the social choices required by technological developments in human reproduction, the soundness of their decisions will depend on their understanding of the good that is at risk, and on their commitment to the law's role in defending it. In view of the fundamental nature of the societal relationships implicated, who will deny that much currently depends on the quality of lawmakers' decisions?

This article draws …

Reflections On The Symposium: An Ordered Inquiry Into The Relation Of Civil Rights Law And Religion, William J. Wagner

Scholarly Articles

No abstract provided.

The Religious Foundations Of Civil Rights Law And The Study Of Law And Religion In An Interdisciplinary Framework, Robert A. Destro

Scholarly Articles

No abstract provided.

Rendering Unto Caesar: Legal Responses To Religious Nonconformity In The Armed Forces, Michael F. Noone Jr.

Scholarly Articles

The focus of this article is on the role of the legal system in resolving disputes regarding the accommodation of religious beliefs in the armed forces. Generally, these disputes arise when an individual's religious sensibilities make claims upon his conscience that cannot be reconciled with the demands imposed by military discipline. Although the believer may simply refuse to serve, a more difficult problem arises when the military believer does not or cannot claim the status of a conscientious objector, but seeks legal protection for his religiously motivated behavior while remaining in the service. Such a claim of protection may be …

A Comment On Religious Convictions And Lawmaking, John H. Garvey

Scholarly Articles

No abstract provided.

Free Exercise And The Values Of Religious Liberty, John H. Garvey

Scholarly Articles

One thing that has always bothered me about free exercise jurisprudence is that it rests on values we have seldom tried to state, much less justify. In a way this is not surprising. We have only recently abandoned the assumption, which may never have been true, that Americans share a common understanding of language about God and transcendent values. That understanding made it unnecessary to define for nonspeakers a meaning that even believers have trouble putting into words. But today we are probably not "a religious people whose institutions presuppose a Supreme Being-at least not if "religious" is supposed to …