Religion Law Commons^™

Book Review. The Supreme Court And Religion In American Life, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Cutter And The Preferred Position Of The Free Exercise Clause, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s unanimous decision in Cutter v. Wilkinson (2005) allowed Congress to give religious exercise a status superior to that given to free speech. In upholding RLUIPA, a statute protecting inmate religious freedom, the Court explicitly held that statutes can allow prisoners to “assemble for worship, but not for political rallies.” Religion, which lost in Smith (1990) the traditional “preferred position” courts have accorded First Amendment rights, can now regain that position through legislation notwithstanding the Establishment Clause. Indeed, religion has not just regained parity with free speech, it now receives greater protection in the prison setting. This striking …

Religion In The Classroom In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

In this Article, Professor Eberle evaluates the relationship of religion in the classroom in Germany and the United States, as formulated by the countries' highest courts, the German Constitutional Court and the United States Supreme Court Pursuant to the German model of church-state cooperation, public finds are channeled to religious organizations, such as, for example, using the machinery of the state to rise and disperse tax monies to religious organizations. Religious groups may then use the tax monies collected to support religious education in the public schools. However, pursuant to guidelines announced by the German Constitutional Court, teaching of religious …

The Interests Of "Peoples" In The Cooperative Management Of Sacred Sites, Kristen A. Carpenter

Publications

This essay contends that there is a structural element of federal law and policy that sets up legal battles over American Indian sacred sites. The Supreme Court has held that whatever rights groups may have at sacred sites, the federal government's rights as owner and sovereign of the public lands ultimately prevails. Federal agencies can, if they choose, accommodate various interests on the public lands, but such decisions are left to fluctuating executive policy and the discretion of land managers. This approach reflects well-established doctrine in public lands law, but leaves various citizens and groups clamoring for the federal government …

The Constitutionality Of The Monkey Wrench: Exploring The Case For Intelligent Design, Johnny Buckles

Oklahoma Law Review

Teaching intelligent design in public schools has become an extremely controversial, and highly publicized, educational prospect that is just beginning to garner judicial attention. This Article argues that a proper resolution of the constitutional problems raised by teaching intelligent design requires both a precise understanding of intelligent design and evolutionary theory, and a sophisticated grasp of theological conceptions of the origin and development of life. After explaining these important foundational concepts and surveying the most relevant Supreme Court precedent, this Article discusses two important threshold questions that arise from the origins debate. First, is intelligent design theory inherently religious? Secondly, …

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

Scholarly Works

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 …

Pluralism And Public Legal Reason, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism--liberty of conscience, toleration, limited government, and the rule of law? This essay explores these questions from the perspectives of contemporary political philosophy and constitutional theory. The thesis of the essay is that pluralism--the diversity of religious and secular conceptions of the good--can and should work as a force for …

Kennewick Man And The Meaning Of Life, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

When Native Americans and scientists clashed over ownership of the ancient remains of Kennewick Man it was, in part, a dispute between the needs of the traditional culture and those of the modern research establishment. But more was at stake. The Native Americans wanted to rebury the remains because their emotional relationship with Kennewick Man is tied to their view of their origins. But the scientists also had an emotional attachment to the scientific position. The question of who were the First Americans satisfies a yearning for scientific origin stories. The dispute here parallels the controversy over evolution. Creationists care …

The City Of God And The Cities Of Men: A Response To Jason Carter, Randy Beck

Georgia Law Review

Jason initially considers and rejects philosophical positions that call for citizens to put aside their religious beliefs when they participate in the political sphere.' He advocates, instead, the freedom to live a "religiously integrated existence" in all areas of life, including political life. Here, Jason reminds me of another Carter-Professor Stephen L. Carter of the Yale Law School. In The Culture of Disbelief, Professor Carter contends that "[in our sensible zeal to keep religion from dominating our politics, we have created a political and legal culture that presses the religiously faithful to be other than themselves, to act publicly, and …

Beyond Worship: The Religious Land Use And Institutionalized Persons Act Of 2000 And Religious Institutions' Auxiliary Uses, Sara C. Bronin

Cornell Law Faculty Publications

Religious institutions have long offered their congregants services that go beyond worship. Particularly in the last two decades, they have begun expanding far beyond their traditional offerings to a wider and more diverse array of auxiliary uses - non-worship uses that are affiliated with a religious institution. (One type of large religious institution, the megachurch, is fast gaining members by offering schools, community centers, dining facilities, even movie theaters and gymnasiums.) Government has long granted special protections to the worship uses of religious institutions. A recent federal law - the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) …

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

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 …

Religious Liberty And The Law, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Democratic Virtues, Our Common Life And The Common School: Trust In Democracy: Anabaptists, Italian Americans, And Solidarity, Thomas L. Shaffer

Journal Articles

Consider two phrases in Professor Marie Failinger's charge to those of us discussing Jeffrey Stout's Democracy and Tradition, October 28, 2005, at Hamline University: (i) "How would we construct a real democratic sociality holding each other responsible for ethical life that would warrant trust in democracy? . . . and, (ii) How do the religious traditions help us reflect on this issue?"

My reflection, probably sectarian, refers more to where we come from than to what we choose. The reference here is to three communities, none of which is primarily concerned with "real democratic sociality." But none of them is …

What's Real For Law?, Jospeh Vining

Articles

Law is not academic. The univeristy if not its home. Law is in the wider world and is pervasive there, in language, thought, and action.

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 …

"Thou Shalt Not Go About As A Talebearer Among Thy People": Jewish Law And The Private Facts Tort, Elie Mischel

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Too Much, Too Little: Religion In The Public Schools, Jay D. Wexler

Faculty Scholarship

The current state of religion in the nation's public schools is odd indeed. On the one hand, the courts have consistently held that public school teachers may not lead their students in an organized prayer. Yet on the other hand, most people seem to agree that there is no problem with those same teachers leading their students in the Pledge of Allegiance, an exercise that asks students on a daily basis, not only to explicitly recognize the existence of a single god, but also to link the nation's very identity to that highly contested theological proposition. Likewise, despite the fact …

The Endorsement Court, Jay D. Wexler

Faculty Scholarship

Since 1986, when William H. Rehnquist was confirmed as the sixteenth Chief Justice of the United States, the Supreme Court has virtually rewritten the entire law regarding the First Amendment’s Religion Clauses. With respect to the Free Exercise Clause, the Court, in its 1990 Employment Division v. Smith decision, reversed years of jurisprudence and held that the First Amendment does not entitle religious believers to exemptions from neutral laws of general application. On the Establishment Clause side, the Court recently overturned a series of its earlier decisions on its way to creating a body of law quite amenable to the …

Kitzmiller And The "Is It Science?" Question, Jay D. Wexler

Faculty Scholarship

When Judge John E. Jones, III, a United States District Court judge appointed by President George W. Bush, ruled that the Dover school board's intelligent design (ID) policy violated the Establishment Clause, ID opponents were ecstatic. They had good reason to be. The opinion was a comprehensive and complete victory for ID opponents. The decision held that the policy was an unconstitutional endorsement of religion when viewed both from a reasonable Dover student's perspective as well as from the perspective of a reasonable adult in the Dover community. It also held that the policy was adopted for a religious purpose, …

Jesus And The Samaritan Woman: A Coda, Alan Watson

Scholarly Works

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

Scholarly Works

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 …

Religious Discourse In The Public Square, David Blaikie, Diana Ginn

Articles, Book Chapters, & Popular Press

Full, open, and civilized discourse among citizens is fundamental to the life of a liberal democracy. It seems trite to assert that no discourse should be prohibited or excluded simply because it is grounded in religious faith or employs religious beliefs to justify a particular position. Yet there are those who contend that it is improper for citizens to use religious arguments when debating or deciding issues in the public square, that metaphorical arena where issues of public policy are discussed and contested. In this article we challenge this position, examining the various arguments that are put forward for keeping …

Religion And State: Some Main Issues And Sources, John M. Finnis

Journal Articles

Public reason's default position is not atheism or agnosticism about the dependence of everything on a transcendent Creator. On the contrary, there is good reason to judge that there is such a transcendent cause, capable of communicating with intelligent creatures, that one of the world's religions may be essentially true and others substantially truer than atheism, and that there is a human or natural right to immunity from coercion in religious inquiry, belief (or unbelief, precisely as such), and practice so far as is compatible with public order, that is with the rights of others, public peace and public morality. …

Introduction: Religion, Division, And The Constitution, Richard W. Garnett

Journal Articles

Thirty-five years ago, in his landmark Lemon v. Kurtzman opinion, Chief Justice Warren Burger declared that state actions could "excessive[ly]"—and, therefore, unconstitutionally—"entangle" government and religion, not only by requiring or allowing intrusive monitoring by officials of religious institutions and activities, but also through their "divisive political potential." He worried that government actions burdened with this "potential" pose a "threat to the normal political process and "divert attention from the myriad issues and problems that confront every level of government." And, he insisted that "political division along religious lines was one of the principal evils against which the First Amendment was …

Vine Of The Dead: Reviving Equal Protection Rites For Religious Drug Use, David Garrett

American Indian Law Review

No abstract provided.

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 …

Old Ground And New Directions At Sacred Sites On The Western Landscape, Kristen A. Carpenter

Publications

The federal public lands contain places with both religious and secular value for American people. American Indians, in particular, hold certain natural features to be sacred, and visit them for ceremonies and worship. Simultaneously, non-Indians use the same places for economic, recreation, and many other purposes - and conflicts arise between these groups. In the past twenty years, a body of constitutional jurisprudence has developed to address questions of religious freedoms and public access rights on these lands that are owned and managed by the federal government. This article outlines the relevant First Amendment framework as well as recent statutes …

The Future Of The Lemon Test: A Sweeter Alternative For Establishment Clause Analysis, Marcia S. Alembik

Georgia Law Review

For over three decades the Supreme Court has applied the three-pronged Lemon test to determine whether state actions violate the Establishment Clause. While the Lemon test remains the most widely accepted test for Establishment Clause analysis,the recent Supreme Court decisions of Van Orden v. Perry and McCreary County v. ACLU of Kentucky have highlighted the Court's ongoing unrest with its application. Although attempts at total replacement of the test have thus far proved unsuccessful, modifications and alternatives to the test and its individual prongs are continually introduced and applied. The Court's lack of a consistent, definite test for Establishment Clause …