Religion Law Commons^™

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum

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This paper explores potential theoretical limits on the jurisdictional independence of religious sovereignty in the context of the ministerial exception.

Rights, Reservations, And Religion; International Human Rights Law And The Status Of Women, Mark Goldfeder

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While human rights law in its current form is less than fifty years old, the issues that it grapples with are much, much older. People oftentimes dismiss religion or religious norms as being out of date, close-minded, or old-fashioned, and label religious views as discriminatory in theory or even in practice. In reality, religions have been dealing with human rights issues since ancient times, and in some ways have laid the groundwork for the very modern discussions that have supplanted them. The answers that religions give, therefore, deserve at the very least a careful and respectful analysis before they are …

Higher Law Secularism: Religious Symbols, Contested Secularisms, And The Limits Of The Establishment Clause, Zachary R. Calo

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This paper considers whether religious symbols on public property might serve a permissible role within the secular polity, and whether there is a way to understand such symbols as compatible with secular commitments. While some attention will be given to constitutional issues, it is proposed that jurisprudential incoherence in this area is less the result of legal interpretation and technique than with the way in which law has framed the concept of the secular. We are not facing a crisis in the Establishment Clause so much as a crisis in the secular. The aim of the paper is thus to …

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

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This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes …

Jewish Law From Out Of The Depths: Tragic Choices In The Holocaust, Samuel J. Levine

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No abstract provided.

Hosanna-Tabor And Supreme Court Precedent: An Analysis Of The Ministerial Exception In The Context Of The Supreme Court’S Hands-Off Approach To Religious Doctrine, Samuel J. Levine

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The United States Supreme Court‘s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court‘s Religion Clause jurisprudence. On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations. The narrow issue at the center of the case is the ministerial exception, a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees. This Essay …

Religion, Human Rights, And Post-Secular Legal Theory, Zachary R. Calo

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This paper proposes that the fundamental challenge for religious legal theory is the question of the secular and, in particular, a certain mode of secular reason that has shaped the idea of law within modernity. The fundamental ambition of modern legal thought was to sever law from a connection to a sacred cosmic and intellectual order. The idea of human rights, at least in its regnant expression, embodies this project most fully in that it has increasingly been defined as a moral tradition that stands over and against religion. This paper, by contrast, argues that the destabilization of secular meaning …

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

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This essay is a contribution to the Northwestern University Law Review's colloquy on the ministerial exception, convened following the Supreme Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

The author takes the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. The author offers historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, the author suggests that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.

Law Asks For Trust, Nathan Chapman

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This Article offers a reading of chapters 1 and 2 of the book of Genesis, informed by concerns for the social effects of law. Part I considers the implications of God's method of creating the world by speech in the first chapter of Genesis. Part II turns to God's prohibition against eating the fruit of the tree of the knowledge of good and evil. The content of the prohibition and the nature of the threatened penalty suggest that the prohibition is a rule against disobedience generally, paradigmatic of a general claim by God to be the ruler. With the creation …

Fighting The New Wars Of Religion: The Need For A Tolerant First Amendment, Leslie C. Griffin

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No abstract provided.

Review Essay: Religion And Politics 2008-2009: Sometimes You Get What You Pray For, Leslie C. Griffin

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No abstract provided.

God And The Land: A Holy War Between Religious Exercise And Community Planning And Development, Patricia E. Salkin, Amy Lavine

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This article is a brief introduction to The Albany Government Law Review symposium on God and the Land. This piece sets forth a brief history of the Religious Land Use and Institutionalized Persons Act (RLUIPA) setting the backdrop for the controversy that has surrounded the Act and its impact on religious entities and municipalities. Since the enactment of RLUIPA, the floodgates have burst open with litigation in attempts to clarify many ambiguities in the statute. The remainder of the piece provides a sneak preview of the articles contained in The Albany Government Law Review by Professors Angela Carmella, Marci Hamilton, …

Faithful Hermeneutics, Francis J. Mootz Iii

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This article was presented at the Annual Meeting of the Association of American Law Schools on January 9, 2009 as part of a panel on "Scriptural and Constitutional Hermeneutics." The panel was co-sponsored by the Law and Religion Section, Section on Jewish Law, and Section on Islamic Law, and the papers will be published by the Michigan State Law Review.

My article compares legal and religious hermeneutics by exploring the dual nature of what I term "faithful hermeneutics." The ambiguity evoked by this phrase is intentional. On one hand, it suggests an investigation of the relationship between legal and religious …

Faith And Politics In The Post-Secular Age: The Promise Of President Obama, Francis J. Mootz Iii

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If the modern era is properly characterized as the 'age of secularism' - a time when constitutional democracies finally have shed the last vestiges of church authority from the political realm and embrace a rationalist and humanist perspective - then the United States appears to be outside the Western mainstream. In this paper I explore how the relationship between politics and religious faith in the United States might be seen as part of the narrative of secularism that defines most other Western countries, even as the differences in the American experience might suggest an evolution of this narrative. My thesis …

The Genesis Of Rluipa And Federalism: Evaluating The Creation Of A Federal Statutory Right And Its Impact On Local Government, Patricia E. Salkin, Amy Lavine

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In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate …

Ketubah, The Marriage Contract Under Jewish Law, And Its Application In Secular Legal Systems, Marketa Trimble

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The article presents ketubah, an institute of Jewish law that is unknown in the current Czech academic literature; it describes its evolution and content, and the manner in which secular countries with large Jewish communities deal with it. Throughout the centuries ketubah achieved a standardized format that has been adjusted to local customs. Additionally, there are attempts to use ketubah to solve the problem of agunah – the problem of parties who have obtained a secular divorce but not a divorce under Jewish law because the other party prevented it. Some legal systems, such as those of the State of …

Review Essay: Religion And Politics 2004-2007, Leslie C. Griffin

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No abstract provided.

Looking Beyond The Mercy/Justice Dichotomy: Reflections On The Complementary Roles Of Mercy And Justice In Jewish Law And Tradition, Samuel J. Levine

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In one of his earliest encyclicals, Dives in Misericordia, Pope John Paul II explored the concepts of mercy and kindness, with a focus on notions of divine love and compassion. Building upon these observations, and drawing extensively on the work of Rabbi Joseph Soloveitchik and other scholars of Jewish law and philosophy, Levine considers the complementary roles of justice and mercy in Jewish tradition. Toward that end, Levine places these concepts in a broader perspective, viewing mercy as representative of attributes such as kindness, compassion, love, and peacefulness, while understanding justice in terms of more exacting principles, such as strict …

Jesus And The Samaritan Woman: A Coda, Alan Watson

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For the final examination in my 'Law and the Gospels' class at the University of Georgia Law School, fall semester in 2004, I set essay questions, one of which was about law in the encounter between Jesus and the Samaritan woman in John 4. Several students chose that option. I had already published on the subject, claiming that the episode involved a sexual 'come-on' by the woman. 'Bucket' was a hidden -- not too hidden -- word for 'penis', 'well' likewise for 'vagina', and 'living water' for 'semen'. In antiquity, as in the modern Western world (until recently), women were …

A Monk's Musings: A Coda, Alan Watson

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I have set out this coda by my close relative and colleague with some reluctance. My reluctance has nothing to do with the quality of the peace. But Sandy is insistent. He is keen on advancement within his law school. Publications are needed. But no law review would be interested in this; it is too short, and has not enough footnotes.

My reluctance to deal with Sandy's coda increased because it contains no law. Yet, it is precisely that which brings out the importance of the episode of Jesus and the Samaritan woman in the Gospel of John. For the …

“The Indispensable Basis Of Democracy”: American Catholicism, The Church-State Debate, And The Soul Of American Liberalism, 1920–1929, Zachary R. Calo

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Several recent works of scholarship explore how Establishment Clause jurisprudence has been shaped by broader political debates over the role of religion in public life. This literature focuses on the politics of anti-Catholicism, particularly during the early years of Establishment Clause jurisprudence in the1940s and 1950s. While not questioning the centrality of this period to the historical narrative, this Note argues that the political contest over church and state took shape in an earlier debate over the compatibility of Catholicism and the Constitution during the 1920s. The Church’s response to the anti-Catholicism of this period was of particular importance. Catholic …

Suburban Sprawl, Jewish Law, And Jewish Values, Michael Lewyn

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In the second half of the twentieth century, America's cities and suburbs were engulfed by suburban sprawl - the movement of people (especially middle-class families) and jobs from older urban cores to newer, less densely populated, more automobile-dependent communities generally referred to as suburbs. Cities throughout America lost population to their outlying suburbs, and cities that gained population usually did so only because they were able to annex those suburbs. America's suburban revolution has not left Jewish communities unscathed. For example, the city of Newark, New Jersey, contained 58,000 Jews and thirty-four synagogues in the 1940s, but today has only …

Fundamentalism From The Perspective Of Liberal Tolerance, Leslie C. Griffin

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No abstract provided.

Their Own Preposessions: The Establishment Clause 1999-2000, Leslie C. Griffin

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No abstract provided.

Law, Ethics, And Religion In The Public Square: Principles Of Restraint And Withdrawal, Samuel J. Levine

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In recent years, scholars have begun to recognize and discuss the profound questions that arise in attempting to determine the place of religion in the law and the legal profession. This discussion has emerged on at least two separate yet related levels. On one level, scholars have debated the place of religion in various segments of the public sphere, including law and politics. On a second level, lawyers have expressed the aim to place their professional values and obligations in the context of their overriding religious obligations. This article explores, from both an ethical and jurisprudential perspective, the question of …

The World’S Youngest Political Prisoner, Richard Klein

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Every participant at an international human rights conference in June 1998 received a small pamphlet published by Tibetan supporters of Tibetan Buddhism's highest-ranking figure, the Dalai Lama. Entitled "The World's Youngest Political Prisoner," the pamphlet makes a plea for support for a young boy, now nine years old, who the Chinese government has allegedly kidnapped and detained. The Dalai Lama, who has been living in exile for forty years, claims the boy is the eleventh reincarnation of the Panchen Lama, the second holiest individual in Tibetan Buddhism. This battle over the identification of the reincarnation of a holy man is …

The Implications Of The Constitution’S Religion Clauses On New York Family Law, Ilene Barshay

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No abstract provided.

Good Catholics Should Be Rawlsian Liberals, Leslie C. Griffin

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No abstract provided.

Toward A Religious Minority Voice: A Look At Free Exercise Law Through A Religious Minority Perspective, Samuel J. Levine

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Legal scholars have recently advanced theories emphasizing the importance of perspectives in the law. Perspective scholarship recognizes that laws are necessarily shaped by society's dominant forces, including its biases and preconceptions. Perspective scholars attempt to understand how these forces have shaped our laws, and they suggest changes to accommodate those affected by society's biases. In this Article, Professor Levine introduces the concept of a religious minority perspective. He develops the concept of a religious minority perspective in the context of several, prominent Free Exercise cases. Professor Levine discusses these cases in his presentation of the central themes of a religious …

Review Of Winifred Fallers Sullivan, Paying The Words Extra: Religious Discourse In The Supreme Court Of The United States (1994), Leslie C. Griffin

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No abstract provided.