Religion Law Commons^™

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.

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 …

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 …

(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 …