Religion Law Commons^™

Christianity And The Legal Status Of Abandoned Children In The Later Roman Empire, Joshua C. Tate

Faculty Journal Articles and Book Chapters

Late Roman imperial legislation relating to abandoned or exposed children has been the subject of much debate. Some have argued that the constitutions of Constantine relating to abandoned children marked a new Christian influence, and that the years between Constantine and Justinian merely refined and explained Constantine's legislation. This paper argues that the legislation of Constantine was not distinctly Christian in content, but that some Christian influence can be seen in the rhetoric of imperial constitutions beginning in the fifth century, and that Christian ideas seem to have affected both the substance and the rhetoric of Justinian's legislation. The paper …

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

Scholarly Works

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 …

Shifting Out Of Neutral: Intelligent Design And The Road To Nonpreferentialism, Kelly S. Terry

Law Faculty Scholarship

No abstract provided.

The Problem Of Religious Learning, Marc O. Degirolami

Faculty Publications

The problem of religious learning is that religion—including the teaching about religion—must be separated from liberal public education, but that the two cannot be entirely separated if the aims of liberal public education are to be realized. It is a problem that has gone largely unexamined by courts, constitutional scholars, and other legal theorists. Though the U.S. Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence, and scholars frequently urge policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has been paid to …

Unleashing Or Harnessing "Armies Of Compassion"?: Reflections On The Faith-Based Initiative, Linda C. Mcclain

Faculty Scholarship

A central tenet of President George W. Bush's faith-based initiative, launched in 2001, is that the federal government, by entering into more partnerships with religious and community organizations, should put the power of faith to work to solve pressing social problems. Proponents of the initiative have invoked the eighteenth-century French writer Alexis de Tocqueville's famous observations about the American propensity to join various voluntary associations as well as the Catholic principle of subsidiarity. Seven years into the faith-based initiative, challenging questions remain about what, exactly, it means to put faith to work. Such questions deserve attention, given the institutionalization of …

Norming "Moderation" In An "Iconic Target": Public Policy And The Regulation Of Religious Anxieties In Singapore, Eugene K. B. Tan

Research Collection Yong Pung How School Of Law

The maintenance of a “moderate mainstream” Muslim community as a bulwark against the fraying of harmonious ethnic relations has become a key governance concern post-September 11. In light of the global concern—and often paranoia—with diasporic Islam, Islamic religious institutions and civil society have been portrayed in the popular media as hotbeds of radicalism, promoters of hatred, and recruiters for a “conflict of civilization” between the Muslim world and the modern world. Having declared itself a terrorist's “iconic target,” Singapore has taken a broad-based community approach in advancing inter-religious tolerance, including a subtle initiative to include the “Muslim civil society” in …

Locating Authority In Law, And Avoiding The Authoritarianism Of 'Textualism', Patrick Mckinley Brennan

Working Paper Series

Much modern jurisprudence attempts to move the locus of authority away from people with authority in order to locate it instead, for example, in rules or texts. This article argues that authority, wherever it exists, is a quality of the actions of persons. The article mounts this argument by showing how Justice Scalia's textualism is the legal analogue of a largely discredited form of "Christian positivism," one that leads to a form of authoritarianism. The article goes on to argue that authorianism can be avoided only by individuals' and their communities' becoming authoritative, including in the making and enforcement of …

Giving Voice To The Religious, Seow Hon Tan

Research Collection Yong Pung How School Of Law

The relevance of moral values endorsed by religious persons in public decision-making has often been debated. The issue comes to the fore again in relation to the debate on Section 377A of the Penal Code dealing with acts of gross indecency between males. With the flourishing of diverse viewpoints that is a natural consequence of a liberal democratic society, and with greater participation by an increasingly sophisticated citizenry online and in the media, particularly in a nation in which those without religious affiliations make up only 15 per cent of the population, the ground rules of public discourse must be …

Norming "Moderation'' In An "Iconic Target'': Public Policy And The Regulation Of Religious Anxieties In Singapore, Eugene K. B. Tan

Research Collection Yong Pung How School Of Law

The proposed research will examine Singapore’s response to terrorism post September 11, in particular the maintenance of a “moderate mainstream” Muslim community as a bulwark against the fraying of harmonious ethnic relations. In light of the global concern—and often paranoia—with diasporic Islam, Islamic religious institutions and civil society have been portrayed in the popular media as hotbeds of radicalism, promoters of hatred, and recruiters for a ‘conflict of civilization’ between the Muslim world and the modern world. Islamist attacks in Madrid and London have since brought increased urgency to the question of how to contain or moderate Islamic radicalism among …

Giving Voice To The Religious, Seow Hon Tan

Research Collection Yong Pung How School Of Law

The relevance of moral values endorsed by religious persons in public decision-making has often been debated. The issue comes to the fore again in relation to the debate on Section 377A of the Penal Code dealing with acts of gross indecency between males. With the flourishing of diverse viewpoints that is a natural consequence of a liberal democratic society, and with greater participation by an increasingly sophisticated citizenry online and in the media, particularly in a nation in which those without religious affiliations make up only 15 per cent of the population, the ground rules of public discourse must be …

Jesus’ Legal Theory—A Rabbinic Interpretation, Chaim Saiman

Working Paper Series

This article locates the ancient debates between Jesus and the Talmudic rabbis within the discourse of contemporary legal theory. By engaging in a comparative reading of both Gospel and rabbinic texts, I show how Jesus and his rabbinic interlocutors sparred over questions we now conceptualize as the central concerns of jurisprudence. Whereas the rabbis approach theological, ethical and moral issues through an analytical, lawyerly interpretation of a dense network of legal rules, Jesus openly questions whether law is the appropriate medium to structure social relationships and resolve interpersonal conflicts. Through an examination of Talmudic sources, this paper argues the controversies …

Legal Theology: The Turn To Conceptualism In Nineteenth-Century Jewish Law, Chaim Saiman

Working Paper Series

This Article is a first-ever attempt to introduce the Briskers—an influential school of late nineteenth century Talmudic interpreters—to the legal academy. The paper describes how at the very moment that secularization and assimilation undermined the traditional legitimizing narratives of Jewish law, the Briskers fused law, theology and science to offer an alternate “scientific” vision of halakha (Jewish law). By recasting the multitude of detailed rules comprising halakha into a system of autonomous legal constructs, the Briskers revolutionized Jewish self-understanding of the halakhic system, and developed a jurisprudence that was able to counteract the social, institutional and intellectual upheavals represented by …

Put That In Your Thurible And Smoke It: Religious Gerrymandering Of Sacramental Intoxication, Mark A. Levine

ExpressO

In February 2006, the Supreme Court ruled on the case Gonzales v. O Centro Beneficente Uniao do Vegetal, granting an injunction permitting the use of ayahuasca, a plant containing the Schedule I substance Dimethyltryptamine, for sacramental intoxication purposes. The unanimous Court justified this injunction by comparing the Uniao do Vegetal's use of the illegal substance with the Native American Church's use of peyote, which contains another Schedule I substance, mescaline. This ruling is incomptabile with lower court rulings rejecting the Ethiopian Zion Coptic Church use of marijuana, consistently stating that the Native American Church has rights beyond those of other …

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

Scholarly Works

No abstract provided.

Twentieth Century Approaches To Defining Religion: Clifford Geertz And The First Amendment, Barbara Barnett

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Shifting Toward Balance, Not Conservatism: The Court's Interpretation Of The Lemon Test's Legislative Intent Prong And Reaction From The Electorate, Kedrick N. Whitmore

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Legal Commitments And Religious Commitments, Jospeh Vining

Articles

In his elegant and accessible new book, Law's Quandary, Steven Smith groups our various senses of what is real for us into ontological families: the mundane; the scientific, including mathematics; and the religious. These supply "lumberyards," as it were, for thought and discussion about the world and action in it. Law itself is not one of them. Those involved in law, as citizens or professionals practicing law or speaking for or about law, are presented in the book as looking out from law to the ontological resources available in the lumberyards he describes.

Privilege Through Prayer: Examining Bible-Based Prison Rehabilitation Programs Under The Establishment Clause, Nathaniel J. Odle

ExpressO

In early June of 2006, an Iowa federal judge found a publicly-funded prison ministry to be in violation of the Establishment Clause and ordered it stopped. The program in question, the InnerChange Freedom Initiative, conceived and maintained by Prison Fellowship Ministries, utilized an overtly Christian model to rehabilitate inmates through spiritual and moral regeneration. In the eyes of the court, the failure of the state of Iowa to provide a reasonable secular alternative had the primary effect of advancing religion and fostered excessive governmental entanglement under a traditional Lemon analysis. Equally important in the court’s decision was the lack of …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Uncivil Religion: "Judeo-Christianity" And The Ten Commandments, Frederick Mark Gedicks, Roger Hendrix

ExpressO

In the recent Decalogue Cases, Justice Scalia argued that when it comes to “public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits th[e] disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” Justice Scalia's argument represents the latest attempt to insulate American civil religion from Establishment Clause attack. A “civil religion” is a set of nondenominational values, symbols, rituals, and assumptions which create both reverence of national history and formation of a communal national bond. The most recent incarnation of American civil …

Legal Consciousness And Contractual Obligations, Kojo Yelpaala

ExpressO

The Article on “Legal Consciousness and Contractual Obligations” will explore and offer an explanation of the origins of the moral foundations for contractual obligations beyond conventional analysis. Building on themes and threads across many disciplines and theories, it seeks to identify and locate certain unities and common elements that explain human consciousness in exchange relations across cultures. The term contract is used in its non-technical and most inclusive sense to cover agreements, promises, undertakings and other forms of consensus whether or not supported by consideration. Viewed within this broad conceptual framework, where do human beings get the idea that they …

Undoing The Native American Graves And Repartriation Act, Lori N. Wight

ExpressO

No abstract provided.

Legal Pluralism & Women's Rights: A Study In Post-Colonial Tanzania, Edward R. Fluet, Mark J. Calaguas, Cristina M. Drost

ExpressO

Recognizing a dearth of legal research on Zanzibar, the authors explore the complex legal and cultural landscape of this archipelago and its relationship to mainland Tanzania. The article discusses the problems that arise when multicultural societies adopt a pluralist system of justice in order to preserve the traditions of its diverse communities. Although the article focuses on Tanzania, the problems that arise from multicultural accommodations affect not only young, postcolonial nations in Africa and Asia, but also individuals in cosmopolitan, economically-developed countries such as Israel and the United States. As countries wrestle with ever diversifying ethnic and religious populations, such …

Varied Carols: Legislative Prayer In A Pluralist Polity, Robert J. Delahunty

ExpressO

The article grows out of my research in writing an amicus brief for a group of distinguished theologians and religious scholars in Hinrichs v. Bosma, a case currently pending before the Seventh Circuit. That litigation involves a challenge to the practice of the Indiana House of Representatives of inviting chaplains of various faiths to lead the House in prayer before the start of each day’s official business. The trial court interpreted the Supreme Court’s 1983 decision, Marsh v. Chambers, to prohibit “sectarian” legislative prayer, and accordingly enjoined the Indiana House’s chaplains from invoking the name of Jesus, or otherwise praying …

Liberalism And Religion, Steven H. Shiffrin

ExpressO

No abstract provided.

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendents, S. Alan Ray

ExpressO

The Cherokee Nation today faces the challenge of determining its citizenship criteria in the context of race. The article focuses on the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted into the Cherokee Nation after the Civil War pursuant to a treaty with the United States, and given unqualified rights of citizenship. The incorporation of the Freedmen into the tribe was resisted from the start, and now, faced with a decision of the Cherokee Nation’s highest court affirming the descendents’ citizenship rights, the Nation prepares to vote on a constitutional amendment which would impose an Indian …

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark

ExpressO

This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court, Marc L. Roark

ExpressO

This is the introduction to a book I am preparing on the Normative and Narrative aspects of the U.S. Sovereign Immunity Doctrine. The introduction sets up the problem of a doctrine that is not exactly coherent with the national narrative.

Thomas Aquinas And The Metaphysics Of Law, William S. Brewbaker

ExpressO

Despite modernity’s longstanding aversion to metaphysics, legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This paper examines perhaps the most famous of metaphysical legal texts– Thomas Aquinas’ still-widely-read Treatise on Law-- with a view toward tracing the influence of Thomas’ metaphysical presuppositions.

This article shows that Thomas’ account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas’ hierarchical view of reality exposes tensions between Thomas’ “top-down” account of law and his sophisticated “bottom-up” observations. For example, Thomas grounds human law’s authority in its …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

ExpressO

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories …