Religion Law Commons^™

The Propriety Of Religious Exemptions: A Response To Sager, Christopher C. Lund

Law Faculty Research Publications

No abstract provided.

Rfras And Reasonableness, Steve Sanders

Indiana Law Journal

The organized opponents of legal and social equality for gays and lesbians, particularly the foes of marriage for same-sex couples, have coalesced in recent years around the rallying cry of "religious liberty." In 2015, the conflict between LGBT rights and religious liberty intensified as legislators in seventeen states considered adopting Religious Freedom Restoration Acts (RFRAs). Most of the national attention focused on Indiana, where legislators adopted a RFRA under pressure from religious conservatives, only to later amend it under pressure from business and civic leaders over concerns that the law sent a message endorsing anti-gay discrimination.

RFRAs, which typically require …

Diy Solutions To The Hobby Lobby Problem, Kristin Haule

Loyola of Los Angeles Law Review

No abstract provided.

Multicultural Adr And Family Law: A Brief Introduction To The Complexities Of Religious Arbitration, Michael J. Broyde

Faculty Articles

Recent polls indicate that the U.S. population is getting less religious and more secular. This seems to mirror the nation’s— and its laws’—movement away from reflecting certain traditional values. While these movements have left some members of the religious population in a precarious situation, surrounded by a society whose values are changing before their eyes, it has also caused the religious to cling tighter to their respective faiths and become more entrenched in the values they assert.

As the government has, slowly but surely, aligned itself with the popular shift away from traditional religious values, the pleas of the religious …

From Dysfunction And Polarization To Legislation: Native American Religious Freedom Rights And Minnesota Autopsy Law, Gail T. Kulick, Tadd M. Johnson, Rebecca St. George, Emily Segar-Johnson

Mitchell Hamline Law Review

No abstract provided.

Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger

Articles & Book Chapters

This chapter questions the interpretation of religious ­ signs and symbols— and the interpretive possibilities that emerge when we demand more from one another in thinking about such symbols— by ­ examining the question of judges and religious dress in the particular context of the judge’s role as wielding the coercive force of the state through the exercise of criminal punishment. I advance the argument that recent debates have proceeded on a misleadingly simplistic approach to understanding the meaning of signs of religious belonging and identity in this setting and that, with this, we miss an opportunity for a deeper …

Anglim's "Encyclopedia Of Religion And The Law In America, 2nd Ed." (Book Review), John D. Laing

The Christian Librarian

A review of Anglim, C.T. (2009). Encyclopedia of religion and the law in America, 2nd ed. Amenia, NY: Grey House Publishing. 847 pp. $165.00. ISBN 9781592372980

Modernizing Pakistan's Blasphemy Law As Hate Speech, Farhan Raouf

LLM Theses

It is difficult to define blasphemy. What is regarded as blasphemous will depend on the values prevalent in a given society. In general, it includes denigrating and insulting expressions targeted toward God and other aspects of religion. My thesis is that blasphemy, to the extent it should be dealt with by the law, should be regarded a sub-category of hate speech. The law should concern itself only with those aspects of blasphemy which incite hatred against a group which is identifiable on the basis of religion. More specifically, I argue that Pakistan should repeal its blasphemy law (s. 295-c Penal …

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

Scholarly Works

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.

Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line, Kathleen Rainey Mcstravick

St. Mary's Law Journal

Obergefell v. Hodges, a United States Supreme Court case, added more fuel to the fire, leaving many to wonder how to voice religious opposition to same-sex marriages, and what are the second order effects for religious opposition in light of the new rule. The Court held the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution guarantees protection against discrimination based on sexual orientation. Obergefell, brings the conflict between freedom of religion and LGBT rights to a new level by questioning how far freedom of religion can be used to refuse anti-discrimination statutes regarding sexual …

Substantial Burdens Imply Central Beliefs, Marc O. Degirolami

Faculty Publications

Any society that is open to religious accommodation will want to know about the quality of the burden its laws impose on religious belief and exercise. This short essay reflects on the nature of that inquiry. It argues to speak of a substantial burden on religion is by implication to understand religion as constituted by a system, within which certain beliefs and exercises occupy different positions of relative importance or centrality.

Free Exercise By Moonlight, Marc O. Degirolami

Faculty Publications

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.

2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.

3. Hosanna-Tabor has shown itself to be feeble. It has …

Tax, Don't Ban: A Comparative Look At Harmful But Legitimate Islamic Family Practices Actionable Under Tort Law, Benjamin Shmueli

Vanderbilt Journal of Transnational Law

Massive migration of Muslims to the West in recent years has raised the question whether Shari'a--Islamic law--should apply to Muslim couples living in these countries. The issue is particularly acute when it comes to family life and the possibility of using tort law in cases of harmful religious practices that are permitted by Muslim law but are contrary to Western liberal values. Using tort law as a soft solution, that is, taxing that practice rather than banning it by criminal sanctions, may be a balanced and efficient solution, at least in some cases. The Article demonstrates this view--tax, don't ban--through …

Islamic Law And Constitution-Making: The Authoritarian Temptation And The Arab Spring, Mohammad Fadel

Osgoode Hall Law Journal

In the wake of the Egyptian military coup of 3 July 2013, much commentary has focused on the religious-secular divide in Egypt as the principal division that laid the groundwork for the subsequent coup. Less attention has been paid to the profound divisions within religiously-minded Egyptian political actors regarding whether democratic or authoritarian government is more desirable from a religious perspective. This article explores the division between Islamist supporters of a “republican” conception of a modern Muslim constitutional and religious order, and Islamist supporters of an “authoritarian” conception of constitutional government in alliance with a state-supported religious establishment. The article …

Religion And Child Custody, Margaret F. Brinig

Journal Articles

This piece draws upon divorce pleadings and other records to show how indications of religion (or disaffiliation) that appear in custody agreements and orders (called “parenting plans” in both states studied) affect the course of the proceedings and legal activities over the five years following divorce filing. Some of the apparent findings are normative, but most are merely descriptive and some may be correlative rather than caused by the indicated concern about religion. While parenting plans are accepted by courts only when they are in the best interests of the child (at least in theory), the child’s independent religious needs …

Law, Religion, And The Purpose Of The University, John D. Inazu

Scholarship@WashULaw

This brief essay explores the relationship between law, religion, and the university. Religion asks the fundamental questions of human existence. Law is the means through which we impose our beliefs on our fellow citizens. The particulars of law and religion expose the differences among us. We respond to those differences with chaos, control, or coexistence. Coexistence requires tolerance, humility, and patience, and it requires institutions to habituate these practices within us. It is not clear that this country presently has such institutions, but if we are discover them among us, the university is one possible contender. The people, place, and …

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

Scholarly Works

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 …

Tainted: Food, Identity, And The Search For Dignitary Redress, Melissa Mortazavi

Brooklyn Law Review

The law recognizes a right to legal redress for exposure to food that is tainted in the sense of being toxic or poisonous, but what about exposure to food products individuals find socially, morally, or religiously repugnant? Jews eating “kosher” hot dogs containing standard non-kosher meats. Vegetarians fed beef. Muslims ingesting vitamins containing pork. Aren’t these food products also “tainted”? Despite the fact that the American legal system has long recognized the need to protect individual dignitary rights, the law provides little meaningful redress in these situations or other instances of offensive food taint. So why has food autonomy, an …

Half-Baked: The Demand By For-Profit Businesses For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan

Loyola of Los Angeles Law Review

Should bakers be required to make cakes for same-sex weddings? This Article unravels the eclectic arguments that are offered in support of a religious exemption from serving gay customers in the wake of Obergefell.

Preliminary issues first consider invocations of a libertarian right to exclude. Rather than being part of our concept of liberty, this right to exclude from commercial premises is a new rule devised to prevent African Americans from participating in free society. Instead of expanding this racist rule to likewise bar gays from the marketplace, it should be reset to the antebellum standard of free access …

Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus

Articles

In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the …

Two Aspects Of Liberty, John H. Garvey

Scholarly Articles

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 …

Religion, Liberty, And The Jurisdictional Limits Of Law [Review], Edited By Iain T. Benson And Barry W. Bussey, Nicholas P. Miller

Faculty Publications

"In recent years law and religion scholarship in Canada has grown significantly. This distinctive collection of 18 papers addresses, from a variety of angles, the jurisdiction of law itself and limits of law – an important but often overlooked aspect of settling the boundaries of church and state, religion and law."

Rluipa And The Limits Of Religious Institutionalism, Zachary Bray

Utah Law Review

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Decriminalizing Polygamy, Casey E. Faucon

Utah Law Review

Polygamous families are our national outlaws. Despite the expansion of sexual rights and marriage equality in the U.S., polygamy remains a crime. Challenging that stigma is the Brown family, who star in the reality TV show “Sister Wives” and who practice polygamous marriageas a tenet of their religion. The Browns filed suit against multiple Utah state actors in federal district court, challenging Utah’s polygamy statute as unconstitutional in violation of their Free Exercise of Religion, substantive Due Process, and Equal Protection rights. The district court agreed and decriminalized informal polygamy in Utah. On appeal, the Tenth Circuit reversed the district …

Let My People Grow: Putting A Number On Strict Scrutiny In The Wake Of Holt V. Hobbs, Dana A. Schwartzenfeld

Georgia Law Review

Beards have always played an important role in human
society, especially in the religious context. One man's
beard even got him in front of the United States Supreme
Court. In Holt v. Hobbs, the Court decided that a prisoner
had a constitutional right to grow a one-half-inch beard
for religious purposes. In making the decision, the Court
made clear that the prisoner's religious interest far
outweighed any security threat that such a short beard
could pose to the prison. The Court declined to go any
further, however, in clarifying the beard length at which
the scales would begin to tip …