Religion Law Commons^™

Introduction, Legal Scholarship In Jewish Law, Samuel J. Levine

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In recent years, Jewish law has gained significant prominence in American legal scholarship, producing a substantial body of literature exploring the Jewish legal system, both on its own terms and in comparative perspective. In particular, the past few decades have seen a marked increase in the number of articles published in American law reviews addressing substantive, procedural, and conceptual aspects of Jewish law, often in the context of broader considerations of important, unsettled, and controversial issues in American legal thought.

In the past, a number of scholars have compiled bibliographies collecting and, at times, briefly annotating, lists of selected works …

The Forest And The Trees: What Educational Purposes Can A Course On Christian Legal Thought Serve?, Randy Beck

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In this short essay, I want to consider the educational purposes a course in Christian legal thought might serve. How could having such a course in the curriculum help accomplish the goals of legal education? One can understand why a law school with a Christian identity would want to offer this sort of course. Such law schools embrace a theology that helps adherents make sense of the world, including the world of human law. The less obvious question I want to consider is why a law school that does not subscribe to a particular theological understanding of the world (or …

Adjudicating Religious Sincerity, Nathan Chapman

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Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility …

Why Some Religious Accommodations For Mandatory Vaccinations Violate The Establishment Clause, Hillel Y. Levin

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All states require parents to inoculate their children against deadly diseases prior to enrolling them in public schools, but the vast majority of states also allow parents to opt out on religious grounds. This religious accommodation imposes potentially grave costs on the children of non-vaccinating parents and on those who cannot be immunized. The Establishment Clause prohibits religious accommodations that impose such costs on third parties in some cases, but not in all. This presents a difficult line-drawing problem. The Supreme Court has offered little guidance, and scholars are divided.

This Article addresses the problem of religious accommodations that impose …

Beyond The Basketball Court: How Brittney Griner's In My Skin Illustrates Title Ix's Failure To Protect Lgbt Athletes At Religious Institutions, Leslie C. Griffin

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Symposium: Playing with Pride: LGBT Inclusion in Sports.

Unlike schoolteachers, janitors, coaches, food-service directors, organists, and other workers, professional athletes usually command center stage in society. Their successes and failures loom larger than life. Sometimes their prominent lives highlight themes hidden from public discussion or neglected by the majority. Professional basketball player Brittney Griner's autobiography does just that, by illuminating how "religious freedom" can undermine equality, especially LGBT equality.

To Accommodate Or Not To Accommodate: (When) Should The State Regulate Religion To Protect The Rights Of Children And Third Parties?, Hillel Y. Levin, Allan J. Jacobs, Kavita Arora

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When should we accommodate religious practices? When should we demand that religious groups instead conform to social and legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion.

Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, scholars, courts, ethicists, and medical practitioners have not offered a consistent way to analyze such cases and the law is inconsistent. This Article suggests that the lack of consistency is a troubling …

Defending American Religious Neutrality, Mark Goldfeder

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Scholars who write about the US Supreme Court's religious liberty jurisprudence typically lambaste the Court for its supposedly secularist or allegedly religious sympathies, or for inconsistencies in its rulings and norms. Andrew Koppelman takes a different approach in this aging but still timely book about the tradition and enduring relevance of religious "neutrality" in American constitutional law.

A Word Of Warning From A Woman: Arbitrary, Categorical, And Hidden Religious Exemptions Threaten Lgbt Rights, Leslie C. Griffin

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Religious exemptions have already undermined women’s rights. Now exemptions threaten gays and lesbians. The Constitution protected women’s equality and liberty until religious exemptions eroded them. Today, as gays and lesbians stand on the threshold of marriage equality, religious exemptions threaten to diminish their hard-earned constitutional right. For this reason, I argue it is past time to reject the religious exemption theory of religious liberty, which privileges religion over civil and constitutional rights, in favor of neutral laws that govern all. Religious exemptions pervade American law in numerous ways that are harmful to civil rights.

In this essay, I identify three …

Hobby Lobby: The Crafty Case That Threatens Women's Rights And Religious Freedom, Leslie C. Griffin

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Despite the pro-religion rhetoric surrounding it, Hobby Lobby marks a loss of religious freedom. Missing from the majority's opinion is the core concept that religious freedom is necessary to protect the rights of all Americans, and that a religious belief must not be imposed on citizens through the force of law. Any interpretation of the First Amendment or the Religious Freedom Restoration Act ("RFRA")' that imposes one citizen's religious faith upon another must be rejected. This Article defends this non-imposition model of religious freedom and describes why and how Hobby Lobby incorrectly departed from it.

Catholic Social Thought And Human Rights, Zachary R. Calo

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As the dominant moral vocabulary of modernity, the language of human rights establishes significant points of contact between the religious and the secular. Yet, the human rights movement increasingly finds itself in a contested relationship with religious ideas and communities. Even as it draws on the inherited moral resources of religion, the human rights movement, at least in its dominant institutional and intellectual expressions, presents itself as a totalizing moral theory that challenges countervailing theological accounts of human rights. This article considers the distinctive account of human rights that has emerged within Catholic social teaching. Particular attention is given to …

Rethinking Religious Minorities' Political Power, Hillel Y. Levin

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This Article challenges the assumption that small religious groups enjoy little political power. According to the standard view, courts, because of their countermajoritarian qualities, are indispensable for protecting religious minority groups from oppression by the majority. But this assumption fails to account for the many and varied ways in which the majoritarian branches have chosen to protect and accommodate even unpopular religious minority groups, as well as the courts’ failures to do so.

The Article offers a public choice analysis to account for the surprising majoritarian reality of religious accommodationism. Further, it explores the important implications of this reality for …

The Establishment Clause, State Action, And Town Of Greece, Nathan Chapman

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The Establishment Clause forbids the government from engaging in the same religious exercise that the law protects when performed by a private party. Thus, an establishment case often turns on whether religious activity is "state action." Too often, however, courts ignore the state action analysis or merge it with the substantive Establishment Clause analysis. This muddles both doctrines and threatens individual religious liberty.

This Article argues that the state action doctrine should account for the government's distribution of private rights. Accordingly, the Constitution applies to the government's distribution of rights, but not to a private party's use of those rights. …

When Faith Falls Short: Bankruptcy Decisions Of Churches, Pamela Foohey

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What does a church do when it is about to go bust? Religious organizations, like any business, can experience financial distress. Leaders could try to solve their churches’ financial problems on their own. Perhaps leaders do not view the problems as addressable with law. Or perhaps they do not think, as a moral or spiritual matter, that they should resort to the legal system, such as bankruptcy, to deal with their churches’ inability to pay its debts. Yet about ninety religious organizations seek to reorganize under the Bankruptcy Code every year. This Article relies on interviews with forty-five of these …

Secured Credit In Religious Institutions' Reorganizations, Pamela Foohey

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Scholars increasingly assume that most businesses enter Chapter 11 with a high percentage of secured debt, which leads to a high percentage of cases ending in the sale of the debtor’s assets under section 363 of the Bankruptcy Code rather than with confirmation of a reorganization plan. However, evidence and discussions about “the end of bankruptcy” center on secured creditors’ role in the reorganizations of very large corporations. The few analyses of cross-sections of Chapter 11 proceedings suggest that secured creditor control is not nearly as omnipresent as asserted and that 363 sales are not as dominant as assumed.

This …

Complicity And Collection: Religious Freedom And Tax, Jennifer Carr

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This Article focuses on how the Religious Freedom Peace Tax Fund Bill might be improved so that members of Congress enact it. The bill would allow war tax resisters who qualify as pacifists to direct their tax money to a separate fund not to be used for military spending. At present, the IRS is expending time and resources trying to track down tax resisters, which results in loss of revenue for the government. This Article argues that passage of an amended version of the Religious Freedom Peace Tax Fund Bill would eliminate the tension between the IRS and war tax …

The Story Of Jewish Polygamy, Mark Goldfeder

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This Article examines the intersection of law, religion, and culture in the evolution of polygamy in the Jewish tradition. It traces the development of Jewish thought on polygamy over time by assembling and analyzing relevant discussions, arguments, decisions, and biblical interpretations from the time of the Hebrew Bible passages, when plural marriage was an accepted part of Jewish society, to the early Middle Ages when the practice was formally and conclusively rejected. In doing so, the Article attempts to untangle the various influences-both practical and doctrinal, internal and external-on the evolution of marriage law in Jewish communities. These findings highlight …

Who Should Be A Jew? Conversion In The Diaspora And In The Modern Nation-State, Mark Goldfeder, Michael J. Broyde

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No abstract provided.

Religion And The Restatements, Ian C. Bartrum

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This essay is a contribution to the symposium entitled "Restatement of ..." held at Brooklyn Law School in January of 2013. It examines the role that conceptions of religious liberty play in the various Restatements, and suggests a few places where the ALI might consider expanding its discussion of these principles.

The Curious Case Of Legislative Prayer: Town Of Greece V. Galloway, Ian C. Bartrum

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This essay explores the Supreme Court's decision to reenter the debate over legislative prayers, and the Solicitor General's curious decision to enter the case in defense of Greece, New York's (somewhat dubious) practice. I suggest that the Court's decision, and the Solicitor's brief, can best be understood as part of larger conflict over Establishment Clause doctrine moving forward.

Foreword: Conference On Religious Legal Theory: Rlt Iv: Expanding The Conversation, Samuel J. Levine

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In this article, the author introduces the articles published in the Symposium Issue of the Touro Law Review, which is a compilation of selected excerpts from the fourth annual Conference on Religious Legal Theory (“RLT”) held April 10-12, 2013. By introducing each article, the author shows a sampling of the variety of topics and disciplines explored and the range of perspectives represented at the Conference, which revolved around the theme RLT IV: Expanding the Conversation. The author provides the background of the panelists to give context to each article, and then briefly discusses the relevance and main ideas.

When Churches Reorganize, Pamela Foohey

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This Article combines an analysis of documents submitted in connection with Chapter 11 cases filed by religious organizations with the results of in-depth interviews with these organizations’ leaders and their bankruptcy attorneys to assess whether reorganization has the potential to offer an effective solution to these debtors’ financial distress. In doing, it makes three contributions. First, it identifies a subset of organizations that seemed more likely to turn to bankruptcy: small congregationalist and non-denominational churches, often with predominately African-American membership. The Article pinpoints salient questions about these churches’ access to credit and use of bankruptcy for future study. Second, it …

Faithful Presence And Theological Jurisprudence: A Response To James Davison Hunter, Zachary R. Calo

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This paper considers how James Hunter’s arguments, presented both in his address and his book To Change the World, might inform the development of a constructive religious legal theory based in the particular resources of Christian theology. In speaking of religious legal theory, I mean something quite different than a theory of law and religion. For some time, the academic conversation about law and religion has centered around issues concerning church-state relations and, more broadly, the place of religion within the liberal political order. Yet, the regnant methodological concerns that have shaped this discourse reflect the boundedness of law to …

The State Of Israel’S Constitution; A Comparison Of Civilized Nations, Mark Goldfeder

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The art of constitution-making is never one-dimensional. In regard to the United States' model, it has recently been argued that "[d]espite the enormous literature on the critical period, including the foreign affairs imperatives behind the movement for reform, it is not fully understood that the animus behind the reform effort that culminated in the new Constitution was a desire to ensure that the United States would be in a position to meet its international commitments and thereby earn international recognition."' While there are obvious differences, and while this concept is perhaps of even greater importance and more poignantly felt for …

Law, Religion, And Culture Intertwined: A Case Study In The Development Of American Jewish Law, Mark Goldfeder

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Law and religion share an underlying structure built on commandments and corresponding commitments. They also share a space in the formal regulation of a person's daily life. Oftentimes, they attempt to legislate in the same specific areas, and oftentimes they come to different final conclusions, or to similar conclusions, but for very different reasons. This article explores the concept of child support in Jewish and American law, respectively, noting how the standards that Jewish law courts impose are actually governed by the hybrid and sometimes competing claims of religious law, secular law, and contemporary cultural norms. In some times and …

The Sins Of Hosanna-Tabor, Leslie C. Griffin

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The Supreme Court has lost sight of individual religious freedom. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court for the first time recognized the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Court ruled unanimously that Cheryl Perich, an elementary school teacher who was fired after she tried to return to school from disability leave, could not pursue an antidiscrimination lawsuit against her employer.

This Article criticizes Hosanna-Tabor as a profound misinterpretation of the First Amendment. The Court mistakenly protected religious institutions' …

Book Review: "The Tragedy Of Religious Freedom", Ian C. Bartrum

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Ian Bartrum reviews Marc DeGirolami's The Tragedy of Religious Freedom (Harvard University Press 2013).

When Fear Rules In Law’S Place: Pseudonymous Litigation As A Response To Systematic Intimidation, Benjamin P. Edwards

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When reprisals and intimidation make certain types of cases too risky for most plaintiffs to file, courts should preserve access to justice by allowing more plaintiffs to proceed pseudonymously. As it stands, courts may be deciding requests to proceed under a pseudonym without understanding the full scope of possible retaliation risks, including that past retaliation may work continuing harm through the stress created by fear.

Unusually heightened retaliation risks may be best exemplified by the nasty reprisals befalling plaintiffs in separation of church and state cases. Although multiple books addressed the issue in the mid-90s, the violent trend has continued …

Christianity, Islam, And Secular Law, Zachary R. Calo

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No issue is more central to theological engagement with law than the meaning of the secular. Indeed, the capacity of constructive religious thought to inform the modern legal order depends in large measure on developing a theological account of the secular and secular law in particular.

Disentangling Conscience And Religion, Nathan Chapman

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What does “liberty of conscience” mean? Religious liberty? Freedom of strong conviction? Freedom of thought? Since the Founding Era, Americans have used liberty of conscience to paper over disputes about the proper scope of religious, moral, and philosophical liberty. This Article explores the relationship between conscience and religion in history, political theory, and theology, and proposes a conception of conscience that supports a liberty of conscience distinct from religious liberty. In doing so, it offers a theoretical basis for distinguishing between conscience and religion in First Amendment scholarship and related fields. Conscience is best understood, for purposes of legal theory, …

Bankrupting The Faith, Pamela Foohey

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This Article presents the results of a comprehensive empirical study of religious organizations that filed bankruptcy under Chapter 11 from the beginning of 2006 to the end of 2011. It examines the institutions’ characteristics, reasons for filing, and case outcomes to investigate whether Chapter 11 is an effective solution to their financial problems. In investigating the religious organizations’ cases, the Article also assesses the role of bankruptcy courts in adjudicating Chapter 11 cases and places the cases within theories about the larger purposes of Chapter 11.

The study finds that the vast majority of debtors are small organizations that operate …