Religion Law Commons^™

(Same) Sex, Lies, And Democracy: Tradition, Religion, And Substantive Due Process (With An Emphasis On Obergefell V. Hodges), Stephen M. Feldman

William & Mary Bill of Rights Journal

Substantive due process issues implicitly concern voice. Whose voice will be heard? Although such issues often remain submerged, the Justices occasionally translate them into disputes over democratic participation and power. The Supreme Court’s most important substantive due process decision in years, Obergefell v. Hodges, entailed such a battle over democracy. The multiple dissenting opinions insisted that the decision demeaned the opponents of same-sex marriage, many of whom were inspired by traditional values and religious convictions. The majority explicitly disagreed, reasoning that the case resolved the rights of same-sex couples to marry and did not diminish the opponents’ voices. The dissenters …

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

William & Mary Bill of Rights Journal

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. …

Religion And Social Coherentism, Nelson Tebbe

Notre Dame Law Review

Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares …

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Notre Dame Law Review Reflection

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible—and typically necessary—for adjudication of a case involving a religious claim, and which forms of inquiry are precluded under the hands-off doctrine. Part II of this Essay applies the hands-off framework to the Hobby Lobby decision, considering the taxonomy of forms of judicial inquiry into …

Telescoping And Collectivizing Religious Free Exercise Rights, Henry L. Chambers Jr

Maryland Law Review

No abstract provided.

The Supreme Court And Religious Liberty, Joseph D. Kearney

Marquette Law Review

None

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, …

Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett

Faculty Workshops

Professor Richard Garnett, of University of Notre Dame Law School, presented on the topic Law, Religion, and Politics: Understanding the Separation of Church and State. This workshop was presented as part of the Hesburgh Lecture Series through the Alumni & Friends of University of Notre Dame and was co-sponsored by the Notre Dame Alumni Club of Miami. This workshop examined how to understand the Constitution's "separation of church and state" and what it requires of religious believers and institutions.

Religion And Social Coherentism, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Religion And Social Coherentism, Nelson Tebbe

Cornell Law Faculty Publications

Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares …

A Post-Obergefell America: Is A Season Of Legal And Civic Strife Inevitable?, Carl H. Esbeck

Faculty Publications

Obergefell v. Hodges did not extend the rigor of the Equal Protection Clause to "sexual orientation" as a protected class. The case is about the right to marry by obtaining a license from the state, not a right to be free of discrimination on the basis of sexual orientation. The Court's rhetoric, however, will boost officials eager to take the next step for sexual equality. Not only did Obergefell speak of gays and lesbians as a class and wrote empathetically about them, but in dicta twice said that being gay or lesbian is an immutable characteristic. Accordingly, it can be …

Islamic Commercial Law And Social Justice: Shari'ah-Compliant Companies, Workers' Rights, And The Living Wage, Susan C. Hascall

St. John's Law Review

(Excerpt)

The purpose of this Article is to examine workers' rights under Islamic law. Companies claiming to be in compliance with the Islamic Shari'ah must look beyond the forms of the transactions and the content of the products they sell. The companies and their Shari'ah advisors must also examine the treatment of the workers employed by the companies. If the workers are not being treated fairly, in accordance with Islamic law, the owners of these companies and their Shari'ah advisors should not claim that the companies and their products are Shari'ah-compliant. As this Article shows, the fair treatment of …

Asf Response To Requests For Admission And Iterrogatories Related To Fr. Sabine Griego, Hall & Monagle, Llc

Timelines

No abstract provided.

Clark Memorandum: Fall 2015, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• The State of Religious Freedom in the World (Katrina Lantos Swett)
• Messages from the Tiger Mother (Amy Chua)
• Gratitude for Our Rights (Justin Collings)
• On Justice, Mercy, and the Atonement (David G. Campbell)

Method Of Attack: A Supplemental Model For Hate Crime Analysis, Angela D. Moore

Indiana Law Journal

On October 28, 2009, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA) was signed into law by President Barack Obama. Two years later, between September and November of 2011, members of a Bergholz, Ohio, Amish community allegedly carried out five attacks in which they forcibly restrained, and cut the hair and beards of, members of other Amish communities. In September of 2012, a jury rendered a verdict in United States v. Mullet and found sixteen members of the Bergholz community—including Samuel Mullet, bishop of the community—guilty of HCPA violations. These were the first convictions for religion-based …

The Rule Of Liberal Legalism: The Challenge Of The Normativities Of Multiple Modernities And Religious Diversity, Noorjahan Pirani Hirji

LLM Theses

In Canada profound diversification of multiple moral, political and normative commitments of a multiplicity of communities is unstoppable. Its historically liberalized, modernized and secularized law dominates principles of procedural justice in expressing the monistic liberal theory of rights now entrenched as individual rights within its charter. For religious believers, basing legal and political life on moral behavior acquired through generations of norms is integral to both security of state, and integrity of multiple communities. Tension exists between religious rights, demands of different visions of the good life, secular politics and the slow reshaping of liberal constitutional law in recognizing religious …

Stemming The Hobby Lobby Tidal Wave: Why Rfra Challenges To Obama's Executive Order Prohibiting Federal Contractors From Discriminating Against Lgbt Employees Will Not Succeed, Kayla A. Higgins

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

An Employer's Conscience After Hobby Lobby And The Continuing Conflict Between Women's Rights And Religious Freedom, Sarah M. Stephens

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

Negative Identity, Nancy Leong

Sturm College of Law: Faculty Scholarship

This Article examines the social and legal status of “negative identity”—identity marked by indifference or antipathy to something that much of society considers fundamental. As examples of negative identity, the Article considers those who identify as atheist, asexual, single, or childfree.

The Article begins by giving content to negative identity. Atheist, asexual, single, and childfree identity consists of more than merely the respective lack of religion, sexual attraction, partnership, or children. Rather, these negative identities are meaningful to group members, add value to society, and thus deserve legitimacy and respect. Unfortunately, respect is not always forthcoming: negative identity group members …

The First Amendment Case For Corporate Religious Rights, John D. Moore

Nevada Law Journal

No abstract provided.

The Position And Authority Of The Aceh Shari'a Court On The Indonesian Justice System, Sufiarina Sufiarina

Indonesia Law Review

Article 27 paragraph (1) of Law No. 48 Year 2009 regarding Judicial Power states that special courts can only be formed in one of the court systems under the Supreme Court, which include general courts, religious courts, military courts and state administration courts. However, article 3A paragraph (2) of Law No. 50 Year 2009 concerning the Second Amendment to the Law on Religious Court places Shariah Court as a special court within the system of religious courts and as a special court within the system of general courts. Such positioning is inconsistent with Article 27 paragraph (1) of the Law …

The "Compulsory School Attendance" Case: Wisconsin V. Yoder, Michael Buchicchio

Akron Law Review

It is an important constitutional doctrine that a law generally constitutional "on its face," may be unconstitutional "as applied" in specific instances. The Amish case marks the first occasion that the Court has clearly articulated that exception in favor of a minority religious group. It would appear that compulsory education laws are-"on their face"--within a state's constitutional powers, but under the facts of this case, the First Amendment requires that the Amish be exempt.

Religious Objections To The Death Penalty After Hobby Lobby, Danieli Evans

Articles

In Glossip v. Gross, the Supreme Court held that in order to prevail on the claim that a method of execution is cruel and unusual punishment, petitioners must prove that there is an available alternative that entails a lesser risk of pain. In this case, the state was using a method that is allegedly more painful than drugs used in the past because manufacturers of the preferable drugs objected to selling them for the purpose of executions. These manufacturers are not alone in their desire to boycott the death penalty. Many religious groups have declared opposition to the death …

Representative Government And The "Bible Commonwealth" In Early Massachusetts, George L. Haskins

Akron Law Review

THE TITLE OF THIS ARTICLE may seem somewhat paradoxical, or at the very least to require some definition of terms. If the government of the colony of Massachusetts Bay in early New England was indeed a "Bible Commonwealth," or even a theocracy, as it has also been characterized, is that not inconsistent with its being a "representative government" in any broad, or even literal sense? Alternatively, even if the government contained a recognizable representative element, was its voice so small, so insignificant, or so manipulated that it merely supported an entrenched religiously inspired oligarchy? The paradox, if there is one, …

Same-Sex Marriage And Jewish Law: Time For A New Paradigm?, Doron M. Kalir

Law Faculty Articles and Essays

In recent years the Supreme Court, as well as important segments of society, has come to accept and even celebrate same-sex relations that, in the past, and for some still today, have generated contempt, hostility, and violence. This change in law and culture poses a unique challenge for those who are moved by the plight of gay people yet concomitantly feel bound by their religious convictions and therefore prevented from providing religious legitimacy to people who yearn to be part of their community. Professor Kalir meets this challenge by proposing that the Torah (and Jewish law), read in context, accepts …

Immigration Policy Of Israel: The Unique Perspective Of A Jewish State, Yehiel S. Kaplan

Touro Law Review

No abstract provided.

Prohibition Of Indoctrination In Education — A Look At The Cse Law Of The European Court Of Human Rights, Fernando Méndez Powell

Brigham Young University Education and Law Journal

No abstract provided.

Blackletter: Fiction And A Wall Of Precedent, Louis Anthony Di Leo

Dissertations

The eight stories that make up Blackletter explore situations in which people are forced to challenge the legitimacy of authority, rethink and rebuild their own identities, or confront their own involvement in human and environmental degradation. A central theme running throughout the collection is law, broadly, and the ways in which people adhere to or sometimes break from a particular rule, be it social or legislative. In each case, the role of law and its correlation to place and identity—either overt or veiled—serves as a major component of each story. In this way I locate these stories within a sociolegal …

Mergens V. Westside Community Schools At Twenty-Five And Christian Legal Society V. Martinez: From Live And Let Live To My Way Or The Highway?, Charles J. Russo

Brigham Young University Education and Law Journal

No abstract provided.

What Is Buddhist Law? Opening Ideas, Rebecca Redwood French

Buffalo Law Review

No abstract provided.