Religion Law Commons^™

Christians And Pagans, Abner S. Greene

Faculty Scholarship

No abstract provided.

Religious Liberty For A Select Few, Sharita Gruberg, Frank J. Bewkes, Elizabeth Reiner Platt, Katherine M. Franke, Claire Markham

Faculty Scholarship

This report discusses how the Department of Justice’s guidance opens the door to an extreme rewriting of the concept of religious liberty. The guidance — and the numerous agency rules, enforcement actions, and policies that it is influencing — will shift the balance of individual religious protections across the federal government toward a new framing that allows religious beliefs to be used as a weapon against minority groups.

Bearing Faith: The Limits Of Catholic Health Care For Women Of Color, Kira Shepherd, Elizabeth Reiner Platt, Katherine M. Franke, Elizabeth Boylan

Faculty Scholarship

This study finds that in nineteen out of the thirty-four states/territories that we studied, women of color are more likely than white women to give birth at hospitals bound by the ERDs. Women of color’s disproportionate reliance on Catholic hospitals in these states increases their exposure to restrictions that place religious ideology over best medical practices.

To determine whether women of color disproportionately give birth at hospitals operating under the ERDs, we compared the percentage of births to women of color at Catholic and non-Catholic hospitals. In over half of the states we studied (19 out of 33 states plus …

Mutual Tolerance And Sensible Exemptions, Kent Greenawalt

Faculty Scholarship

This chapter focuses on three general themes that bear on the need to understand one another in society and how that understanding bears on appropriate exemptions relating to abortions and same-sex marriage, two questions that continue to divide the American people.

First, there is a need for mutual tolerance toward others who see things differently. Second, a great deal in life is not subject to rational answers. Third, people should generally not be required to do directly what they believe is deeply wrong. However, society can work only if people do not refuse to help those who, they believe, have …

Religious Freedom As A Technology Of Modern Secular Governance, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Religion And Polarization: Various Relations And How To Contribute Positively Rather Than Negatively, Kent Greenawalt

Faculty Scholarship

The theme of this Essay is that in our present culture, we need badly to understand and accept those who see things differently from ourselves, and to afford people some latitude not to directly violate their deepest convictions. For example, those with religious convictions that marriage should be between men and women need to see why those with gay sexual inclinations feel strongly they are entitled to equal treatment and the latter need not reject as deeply prejudicial all those whose religious convictions lead them to subscribe to the more limited, unwise, historical view about marriage. This understanding on both …

How To Think About Religious Freedom In An Egalitarian Age, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Liberal, Conservative, And Political: The Supreme Court's Impact On The American Family In The Uber-Partisan Era, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Religiously-Motivated Medical Neglect: A Response To Professors Levin, Jacobs, And Arora, Doriane Lambelet Coleman

Faculty Scholarship

This Response to Professors Levin, Jacobs, and Arora’s article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties? focuses on their claim that the law governing religious exemptions to medical neglect is messy, unprincipled, and in need of reform, including because it violates the Establishment Clause. I disagree with this assessment and provide support for my position. Specifically, I summarize and assess the current state of this law and its foundation in the perennial tussle between parental rights and state authority to make decisions for and about the …

Granting Exemptions From Legal Duties: When Are They Warranted And What Is The Place Of Religion?, Kent Greenawalt

Faculty Scholarship

In what follows, I focus on when exemptions from legal duties are called for and whether religion should be a crucial ingredient. I concentrate especially on the present controversy over same-sex marriage, and how far people and organizations should be required to afford those couples equal status. But other kinds of exemptions can help us understand various general questions and provide key insights about this intense concern of our time.

My basic conclusions are these: religious convictions and practices do matter but only sometimes should they be legally distinguished from other bases. Considering all that is at stake, certain exemptions …

The Women Of The Wall: A Metaphor For National And Religious Identity, Pnina Lahav

Faculty Scholarship

The Women of the Wall wish to participate in communal prayer in the women’s section of the Western Wall in Jerusalem. Their practice is to pray as a group, wrap themselves in a tallit, and read from the Torah scroll. They represent Jewish pluralism in that their group includes Orthodox, Conservative, Reform and secular women. They represent openness to change in that they base their claims on Halakhic interpretation, thereby embracing the capacity of Jewish law to evolve. This article reviews the resistance of the religious and political establishment in Israel to their claim and their struggle, unsuccessful so far, …

Religion And Social Coherentism, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Time To Lift The Veil Of Inequality In Health Care Coverage: Using Corporate Law To Defend The Affordable Care Act, Seema Mohapatra

Faculty Scholarship

No abstract provided.

People Of The Book: Judaism’S Influence On American Legal Scholarship, My Journey From Judaism To Jewish Law, Donna Litman

Faculty Scholarship

My personal study of the Torah and the Talmud as an adult has enhanced my legal scholarship and helped shape my current thinking on legal theory. At the same time, my professional legal training and experience as a law professor has shaped my understanding of Judaism and provided a legal terminology and a lens by which to view the array of Jewish laws. A confluence of events helped shape my personal and professional journey.

Women And The Free Exercise Clause: Some Thoughts About A (Religious) Feminist Reading, Marie Failinger

Faculty Scholarship

Among the dozens of Supreme Court cases on the free exercise of religion, women play a mostly invisible part. We know of Adell Sherbert and Frieda Yoder; and less famously, Alma Lovell, Lillian Gobitis, Paula Hobbie, Sarah Prince, and Lucie McClure. We know that these women go out into the streets to tell the Good News, refuse to salute idols, refuse to work on the Sabbath, and refuse to go to school in violation of their religion. But, we do not hear their voices very loudly.

At the same time, until recently, we have consistently heard only one woman's voice …

The Lutheran Lawyer: Some Reflections On The Ethics Contributions Of Susan Martyn, Marie Failinger

Faculty Scholarship

Recently, Professor Susan Martyn, who is honored in this tribute issue, contributed to a forthcoming volume on Lutheran theological views of secular law of which I am co-editor. Ever the professional, Professor Martyn expressed initial uncertainty about her ability to make a contribution to this volume without more theological expertise. Not to worry, Professor Martyn's prodigious work ethic and creative lawyering produced an insightful chapter entitled, "Can Luther Help Modem Lawyers Understand Fiduciary Duty?" As it turns out, she argued, Martin Luther can help modem lawyers because he understood the ancient roots of fiduciary law that lie at the foundation …

Professor Greenawalt's Unfashionable Idea, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Pilgrim Finally At Rest: The Journey Of Robert E. Rodes, Jr., Marie Failinger

Faculty Scholarship

90 Notre Dame Law Review 1983 (2015)

Exclusion And Equality: How Exclusion From The Political Process Renders Religious Liberty Unequal, Philip A. Hamburger

Faculty Scholarship

Exclusion from the political process is a central question in American law. Thus far, however, it has not been recognized how religious Americans are excluded from the political process and what this means for religious equality.

Put simply, both administrative lawmaking and § 501 (c)(3) of the Internal Revenue Code substantially exclude religious Americans from the political process that produces laws. As a result, apparently equal laws are apt, in reality, to be unequal for religious Americans. Political exclusion threatens religious equality.

The primary practical conclusion concerns administrative law. It will be seen that this sort of "law" is made …

Religious Freedom And (Other) Civil Liberties: Is There A Middle Ground?, Abner S. Greene

Faculty Scholarship

There appears to be an intractable debate between those who favor religious accommodations and those who favor civil liberties such as abortion rights and equality rights for same-sex couples. Many take firm positions of truth about one matter or the other. Here, I sketch a middle ground, continuing my endorsement of a robust normative or value pluralism. I canvass some arguments for this position, while also describing and critiquing some works of intellectual history that seem too wedded to one teleological posture or another. Despite my support for the Religious Freedom Restoration Act, I critique the Court’s Hobby Lobby ruling, …

Religion And Marriage Equality Statutes, Nelson Tebbe

Faculty Scholarship

No abstract provided.

The Prodigal Illegal: Christian Love And Immigration Reform, Victor C. Romero

Faculty Scholarship

Despite the impasse around immigration reform, most everyone believes the United States’ immigration system is broken. And most agree that the key issue is what to do with the eleven million or so undocumented persons currently residing in the United States. As a Christian immigration law teacher, I have been interested in the debate among the churches as to what such reform should look like. In this Article, I use Professor Jeffrie Murphy’s conception of agapic love as a lens through which to examine reform proposals. I then evaluate the two positions Christian churches have seemed to embrace—permanent legal status …

"Least Restrictive Means”: Burwell V. Hobby Lobby, Noah Marks

Faculty Scholarship

No abstract provided.

Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain

Faculty Scholarship

This Article engages with Ronald Dworkin’s final book, Religion Without God, which proposes to shrink the size and importance of the fierce “culture wars” in the United States between believers and nonbelievers – theists and atheists – by separating out the “science” and “value” components of religion to show these groups that they share a “fundamental religious impulse.” Religion Without God also calls for framing religious freedom as part of a general right to ethical independence rather than a “troublesome” special right for religious people. This article compares the argumentative strategy of Religion Without God with prior Dworkin works, such …

Press Definition And The Religion Analogy, Ronnell Andersen Jones

Faculty Scholarship

n a Harvard Law Review Forum response to Professor Sonja West's symposium article, "Press Exceptionalism," Professor RonNell Andersen Jones critiques Professor West's effort to define "the press" for purposes of Press Clause exceptions and addresses the weaknesses of Professor West's analogy to Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in drawing these definitional lines. The response highlights distinctions between Press Clause and Religion Clause jurisprudence and urges a more functional approach to press definition.

Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe

Faculty Scholarship

No abstract provided.

A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Faculty Scholarship

No abstract provided.

The Islamic Influence In (Pre-)Colonial And Early America: A Historico-Legal Snapshot, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Faculty Scholarship

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a …

Twenty-Five Years Of Law And Religion Scholarship: Some Reflections, Marie Failinger

Faculty Scholarship

In this address, the author describes some of the significant movements in law and religion scholarship over the past twenty-five years, including the dialogue between traditional church-state and international human rights scholars and outside scholars, including those writing from within American minority faith traditions.