Religion Law Commons^™

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Respondents: St. Mary Catholic Parish V. Roy, Catherine Smith, Tanya Washington, Robin Walker Sterling, Suzette Malveaux, Barbara Bennett Woodhouse, Sara S. Hildebrand, Abigail L. Fleming, Jeremiah Chin

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This Court should consider those most directly impacted by the decision in this case: the intended beneficiaries of Colorado’s Universal Preschool Program (“UPK”), Colorado’s children. To paraphrase Shakespeare, though they be but little, they are constitutional rights-bearers and are thus entitled to be free from state-funded discrimination.

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the significant harms children in the LGBT community would bear should Colorado be compelled to allow state-funded religious schools to discriminate against preschoolers. Exempting religious schools from the State’s equal-opportunity and antidiscrimination …

Religious Exemptions To Anti-Discrimination Law: Children's Rights In The Constitutional Calculus, Tanya Washington, Catherine Smith, Robin Walker Sterling

Scholarly Articles

Increasingly, religious actors in the public sphere--whether in the provision of goods and services (Masterpiece Cakeshop) or in government contracting (Fulton)--are simply invoking a person's sexual orientation as inconsistent with their religious tenets to benefit from a legal doctrine that shields them from the requirement that they offer an underlying rationale for LGBTQ discrimination. Over the past decade, we have filed amicus briefs in United States Supreme Court cases advancing children's constitutional rights, including briefs providing a check on these religious-based arguments when they adversely impact children's rights in the familial and child regulation contexts and …

Race Without Racism: Religious School Curricula And The Race-Neutral Legacy Of Brown, Vania Blaiklock

Scholarly Articles

Current conversations about race and equity curricula in primary and secondary education exclude examining religious curricula because of their private classification. Yet, this omission prevents us from exploring how religious curricula might mirror the legal transformation of Brown’s racial equality legacy to constitutional race neutrality. This Article brings religious curricula into these conversations by specifically linking the Court’s race-neutral transformation of Brown to the way religious curricula frame discussions about race without racism. Throughout the Article, I argue that the Court’s transformation of Brown is not just a top-down legal framework but also a bottom-up educational ideology. By making …

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

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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.

A License To Discriminate: The Risky Next Step Of Religious Charter Schools, Vania Blaiklock

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From 2017 to 2022, the Supreme Court strengthened its First Amendment Free Exercise jurisprudence by deciding that states can provide aid to religious educational institutions through general benefit programs. Six months after the Court’s most recent religious aid case, Carson v. Makin, Oklahoma’s Attorney General stated that he would no longer enforce the nonsectarian provision of the state’s public charter statute because it was unconstitutional under Carson and its progeny. That opinion initiated the application and 2023 approval of the first religious charter school, St. Isidore of Seville Catholic Virtual School by Oklahoma’s Virtual Schoolboard. Immediately, state litigation ensued, …

The Bare Necessity Of Natural Law, Adam J. Macleod

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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 …

Mysterizing Religion, Marc O. Degirolami

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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 …

Two Sides Of The Same Token: An Examination Of Segregation, Memory, And White Supremacy In Contemporary Church Schools, Vania Barbriana Blaiklock

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A Thesis presented to the Graduate Faculty of The College of William & Mary in Candidacy for the Degree of Master of Arts

This thesis is a portfolio containing two essays about private Christian church schools with an introductory essay to connect both projects. The first essay, “A Convergence of Purpose: Segregation and White Supremacy in Contemporary Church Schools,” is a comprehensive examination of the development and creation of church schools that first looks at the distinction between church schools and segregation academies, and then assesses the relevance that the distinction, or the lack thereof, plays in maintaining white supremacy …

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, …

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

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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

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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

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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 …

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

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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

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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 …

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

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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 …

Two Aspects Of Liberty, John H. Garvey

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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 …

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

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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 …

Rluipa: Re-Aligning Burdens Of Proof, Clarifying Freedoms, And Re-Defining Responsibilities, George P. Smith Ii, Philip M. Donoho

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Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of Human Resources v. Smith in 1990, Congress plunged headlong, dragging along with it a judiciary charged with enforcement of a mandate only defined ambiguously. Thus, in 2004 the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed and heralded as a legislative sum certain — a “clear” articulation of Congress’ balancing of local zoning prerogative with idiosyncratic religious use. It has proved anything but; for, since its passage, the results of litigation have remained resolutely immune to coherent explanation, as the Federal Circuit courts …

“A Witness First Lives The Life He Proposes:” Evangelization And The Catholic Lawyer, Lucia A. Silecchia

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This essay was presented at the lecture for legal professionals in Baltimore, Maryland, on May 21, 2015. The roots of the word evangelization are, literally, in the words that mean “to bring good news.” We live in a world that craves good news and, by virtue of our Baptism, all of us – lawyers included – are called to bring good news to a world that, despite all appearances to the contrary, aches for good news and deeply yearns to know the God from whom all good news comes, and to whom all good news leads. I am convinced that …

Pope Francis And The Vocation Of The Lawyer: Reflections On Service And Responsibility, Lucia A. Silecchia

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Through the years, Catholic lawyers have had many opportunities and invitations to reflect on their profession as a vocation due to the guidance that can be found in Sacred Scripture, the examples of saints who were themselves members of the legal profession, the teachings of church leaders, and the insights of religious writers on the vocation of the lawyer, to name but a few.

More recently, Pope Francis has also offered guidance as to what a life in the law might mean and what might characterize the vocation to practice law today. This guidance is not to be found in …

On "Unease" And "Idealism": Reflections On Pope Benedict Xvi's Educating Young People In Justice And Peace And Its Message For Law Teachers, Lucia A. Silecchia

Scholarly Articles

Pope Benedict XVI recently wrote about the challenges facing those who have the responsibility for the education of the next generation. His insights, expressed last year, were addressed not simply to a Catholic audience but to all who look to the future and see the obligation to train young people "in justice and peace" to be a noble vocation and one solution to some of the difficulties that face the modern world. Although it was not directed to, or intended primarily for, law professors, the document has much to say to those whose vocation lies in legal education. This essay …

Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi

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Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services ("HHS") has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act ("RFRA"). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six. Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking RFRA's …

God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi

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Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many …

Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi

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When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine were used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech, and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex.

Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been broader …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien

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This Article argues that challenges made to family law structures have provoked a significant reaction from persons and religious organizations advocating a distinctive worldview based on religious and historical values. Additionally, as family law changes from being a product of a religioushistorical worldview to being a product of private-ordering, the religious liberty of worldview adherents has been challenged. The struggle is apparent in the debates during the 2012 presidential election and is evidenced in government mandates that include, among other requirements, that employersincluding religious organizations-provide insurance coverage for employees that include contraception. Although many aspects of family law have been …

The Constitutional Right Not To Kill, Mark L. Rienzi

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Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings. The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the …

The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

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The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in …

Intellect And Virtue: The Idea Of A Catholic University, John H. Garvey

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No abstract provided.

Insubstantial Burdens: The Case For Government Employee Exemptions To Same-Sex Marriage Laws, Robin Fretwell Wilson

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The case for accommodating religious objectors to same-sex marriage has met significant resistance on a number of fronts. Some believe that religious exemptions permit objectors to dodge legal duties to serve same-sex couples that would otherwise apply. Critics charge that, if extended to public employees, such exemptions would burden the ability of same-sex couples to marry. Others argue that exemptions coddle wrong-headed people who really do not have a legitimate reason for objecting and who, therefore, should not be legally excused. A review of the nearly half-dozen new same-sex marriage laws enacted in the past year suggests that the least …