Religion Law Commons^™

The Problem Of Religious Learning, Marc O. Degirolami

Faculty Publications

The problem of religious learning is that religion—including the teaching about religion—must be separated from liberal public education, but that the two cannot be entirely separated if the aims of liberal public education are to be realized. It is a problem that has gone largely unexamined by courts, constitutional scholars, and other legal theorists. Though the U.S. Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence, and scholars frequently urge policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has been paid to …

Lifting The Veil: Women And Islamic Law, Christie S. Warren

Faculty Publications

No abstract provided.

When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck

Faculty Publications

This article sets forth five rules with respect to what government may do to accommodate religious practice and five rules with respect to what government may not do. As it turns out the Supreme Court has said that most religious accommodations are left to the broad discretion of legislators and public officials. So long as the object of the accommodation is to protect or expand religious freedom, as distinct from expanding religion, the accommodation will be permitted.

Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Symposium Introduction: The Religion Clauses In The 21st Century, William P. Marshall, Vivian E. Hamilton, John E. Taylor

Faculty Publications

No abstract provided.

Recoiling From Religion, Marc O. Degirolami

Faculty Publications

This is an essay reviewing Professor Marci A. Hamilton's book, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (Cambridge Univ. Press 2005).

Professor Marci Hamilton has written a forceful and obviously heartfelt book that should give pause to committed champions of religious free exercise. She argues convincingly that religious freedom is too often invoked to shield opprobrious and socially harmful activity, and she describes numerous examples of such abuses that make any civilized person's blood run cold. Her avowed aims are to debunk the “hazardous myth” that religion is “inherently and always good for society” and to increase …

Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen

Faculty Publications

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.

To what extent …

Play In The Joints Between The Religion Clauses' And Other Supreme Court Catachreses, Carl H. Esbeck

Faculty Publications

Consistent with its fumbling of late when dealing with cases involving religion, the U.S. Supreme Court has taken to reciting the metaphor of play in the joints between the Religion Clauses. This manner of framing the issue before the Court presumes that the Free Exercise and Establishment Clauses run in opposing directions, and indeed will often conflict. It then becomes the Court's task, as it sees it, to determine if the law in question falls safely in the narrows where there is space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause. The …

Governance And The Religion Question: Voluntaryism, Disestablishment, And America's Church-State Proposition, Carl H. Esbeck

Faculty Publications

The quandary over how to structure the relationship between religion and the civil state is an ancient one. From the perspective of political philosophy this is the religion question, and events over many centuries have proven that the answer is easy to get wrong. Religion, by its very definition, is the fixed point from which all else is surveyed. It is about ultimate matters, both micro and macro. Hence, religion addresses the irreducible core of personhood and its meaning, while at the same time religion embraces a worldview that transcends and encompasses everything else. Religion generates intense emotions that when …

Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill

Faculty Publications

The Supreme Court's jurisprudence concerning public displays of religious symbols is notoriously unpredictable. In this Article, Professor Hill argues that the instability and apparent incoherence of the Supreme Court's religious symbolism jurisprudence is due to certain difficulties inherent in discerning the "meaning" or "message" of a religious display. In particular, she attributes the unpredictability of the jurisprudence to the fact that the meaning of the display is dependent on the "context," which is itself an unmanageable and unformalizable concept. This Article, which draws on insights from literary and linguistic theory, breaks with previous commentators' claims that the difficulties with the …

International Law And Religion In Latin America: The Beagle Channel Dispute, M C. Mirow

Faculty Publications

In 1978, an Argentine diplomat proposed a method of defusing a territorial dispute that very nearly sparked off a war between Argentina and Chile, It,was an offer calculated to be rejected by Chile, and yet Chile’s immediate response was “Agreed” - a response so unthinkable to Argentina that within hours its military Junta revoked the power of the Foreign Minister and the President to sign the agreement it had just proposed. In December 1978, the countries were quickly moving towards a war that, if waged, would most likely have engulfed much of Latin America. The Vatican, however, intervened and brought …

Dissent And Disestablishment: The Church/State Settlement Of The New American Republic, Carl H. Esbeck

Faculty Publications

This paper has two aims. They are more in the nature of history than law. The first aim is to show that since the fourth century Western civilization has presupposed that there are not one but two sovereigns. Each has a jurisdiction of legitimate operation, and while there are areas of shared cognizance, there are other subject matter areas in which each is noncompetent to perform the tasks of the other. The second aim of this paper is to uncover historical figures that advanced a proposition concerning religious freedom that became the American church-state settlement.

Wagering On Religious Liberty, Nathan B. Oman

Faculty Publications

No abstract provided.

Book Review: Law And Religion: Current Legal Issues 2001 - Volume 4, S. I. Strong

Faculty Publications

As volume four of Current Legal Issues demonstrates, commentary on the interplay between law and religion in the UK is growing, although the subject still attracts nowhere near the level of attention it does in other countries. The newest addition to the literature constitutes a welcome advance to lawyers working or interested in the field. For example, many existing collections of essays on law and religion focus primarily on sociological issues. This compilation, on the other hand, contains many essays that stress truly legal dilemmas, although sociological, philosophical and other approaches to the question are still well represented among the …

Book Review: Freedom Of Religion Under The European Convention On Human Rights, S. I. Strong

Faculty Publications

Oxford University Press has initiated a new series on the European Convention on Human Rights and, in light of recent world events, could not have found a more timely first installment than Carolyn Evans's book on freedom of religion. However, the choice of topics is sound even when one sets aside the current interest in the interplay between law and religion.

The Story Of A Forgotten Battle, Nathan B. Oman

Faculty Publications

No abstract provided.

Book Review: Faith In Law: Essays In Legal Theory, S. I. Strong

Faculty Publications

The essays collected in this book arise out of a series of seminars exploring the relationship between law and faith, broadly defined, and investigate "the many varied links between law and faith", particularly as those links relate to legal theory. While the editors intended to demonstrate the diversity of ways in which the topic can be viewed, this very diversity causes some problems for the reader.

Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck

Faculty Publications

The purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter "respecting an establishment of religion." The powers that fall within the scope of the foregoing clause (denied to government, hence within the sole province of religion) and the powers outside this clause (hence, authority vested in …

Charitable Choice And The Critics, Carl H. Esbeck

Faculty Publications

First, the statute prohibits the government from discriminating with regard to religion when determining whether providers are eligible to deliver social services under these programs. Second, the statute imposes on government the duty not to intrude into the religious autonomy of faith-based providers. Third, the statute imposes on both government and participating FBOs the duty not to abridge certain rights of the ultimate beneficiaries of these programs. I will touch on these three principles below, and do so in reverse order.

State Regulation Of Religious Education, Neal Devins

Faculty Publications

No abstract provided.

Myths, Miscues, And Misconceptions: No-Aid Separationism And The Establishment Clause, Carl H. Esbeck

Faculty Publications

In neutrality theory the recipients of vouchers, grants, and purchase-of-service contracts are eligible to participate as providers in government social service programs without regard to their religious character. Indeed, religious beliefs and practices are prohibited bases for screening out those who want to be welfare program providers. Notable examples of congressional social service legislation conforming to the rule of religious neutrality are the ‘charitable choice‘ feature imbedded in the Welfare Reform Act of 1996 and the Community Services Block Grant Act of 1998, as well as the provision allowing issuance of child care vouchers to indigent parents in the Child …

Tax Exemptions And The Establishment Clause, Erika Lietzan

Faculty Publications

Churches are exempted from a variety of taxes collected by the various levels and jurisdictions of government in the United States. For instance, they are almost always exempt from payment of property tax at the local level and from payment of income tax to both state and federal government. They are often exempt from payment of state sales tax on the products they sell. A person making a contribution to a religious organization is usually entitled to deduct the contribution from his income when calculating both his state and his federal income taxes at the end of the taxable year. …

The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck

Faculty Publications

This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters "respecting an establishment of religion." Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.

Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong

Faculty Publications

The first area of discussion is the structure of each government system. This analysis not only sets the legal framework for later analysis, but demonstrates how both Israel and Iran have brought religion into the very fabric of their legal institutions.The second area of analysis in Part II focuses on the principles of sovereignty and constitutional interpretation utilized by each State. Familiarity with these concepts is necessary in order to learn which religious principles, if any, are incorporated into each nation's general legal environment. These principles, which are implicitly understood by members of the society, are often unstated in judicial …

A Constitutional Case For Governmental Cooperation With Faith-Based Social Service Providers, Carl H. Esbeck

Faculty Publications

This Article will refer to separationism as based on "older assumptions." The Court's presuppositions concerning the nature and contemporary value of religion and the proper role of modem government underlie what will be referred to as a "traditional analysis" of the case law. Part I is a partial overview of the Supreme Court's cases since Everson, and has the goal of making the strongest arguments-within the framework of separationism-for the constitutionality of governmental welfare programs that permit participation by faith-based social service providers.

Part II is about separationism's major competitor, a theory centered on the unleashing of personal liberty to …

Christian Constitutions: Do They Protect Internationally Recognized Human Rights And Minimize The Potential For Violence Within A Society? A Comparative Analysis Of American And Irish Constitutional Law And Their Religious Elements, S. I. Strong

Faculty Publications

Section II of this Article studies in greater detail the religio-legal debate currently being waged in American courts and legislatures, including a brief discussion of the religio-legal history of the United States. Section II also describes how the United States resembles and differs from Ireland such that subsequent comparisons will be more accurate. Section III compares the two constitutions by analyzing the provisions and policies most influenced by religion. First, general principles of sovereignty and constitutional interpretation are reviewed to understand the general constitutional framework of each nation. Second, the manner in which personal rights are treated by each nation's …

Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Carl H. Esbeck

Faculty Publications

It is often said that America's founding was an experiment in government. Certainly few features of the American constitutional settlement left more to future chance--and were more of a break with existing European patterns--than the Establishment Clause set out in the First Amendment. The new Republic sought to rely on transcendent principles to justify its unpre-cedented advancements in human liberty. Concurrently, the Founders reject ed any official or fixed formulation of these principles, for no public credo was to be established by law. So it is more than just a little ironic that the nation's most cherished human rights depend …

The Failure Of The Religious Freedom Restoration Act Under Section 5 Of The Fourteenth Amendment, William W. Van Alstyne

Faculty Publications

No abstract provided.

A Symposium Precis, Thomas E. Baker

Faculty Publications

No abstract provided.

A Restatement Of The Supreme Court's Law Of Religious Freedom: Coherence, Conflict Or Chaos?, Carl H. Esbeck

Faculty Publications

Religious freedom as guaranteed in the First Amendment makes religious pluralism more likely, while pluralism makes the maintenance of religious freedom as a fundamental civil right more necessary. It seems there is a limit, however, to the expansion of America's religious pluralism that, when exceeded, shatters cultural consensus thus rendering impossible the political and civil discourse necessary to sustain democratic institutions.1 This follows because pluralism promises freedom but exacts a price in civic disunity and moral confusion. The question thereby resolves itself into just how a religiously diverse people are to live together, despite their deepest differences, while sharing in …