Religion Law Commons^™

Faith In The Public Square: Some Reflections On Its Role And Limitations From The Perspective Of Catholic Social Thought, Lucia A. Silecchia

Scholarly Articles

In recent years, there has been a renewed interest in the proper role of religion in the public square. This paper offers brief reflections on the role for religious entities to play in the process of law-making and the development of public policy. It addresses this question NOT from the perspective of the government looking at religion to see what role it should play. Rather, it examines this question from the perspective of a religious group assessing what its proper role and moral obligations might be in the public square. Much of this discussion is taken, specifically, from principles of …

Islamic Principles Governing International Trade Financing Instruments: A Study Of The Morabaha In English Law, Jason C. T. Chuah

Northwestern Journal of International Law & Business

The past years have seen a clear and incontrovertible rise in the use of international financial and commercial instruments expressed to be governed by Islamic principles. Banks and other commercial entities in Islamic and non-Islamic countries are increasingly aware of the commercial need to offer services which are specifically tailored to meet this sector of the international market. Disputes over the interpretation and application of such instruments invariably arise. English courts are not insulated from such disputes, given that the City of London is at the forefront of many international commercial and financial dealings. As a matter of law, the …

In Praise Of Contextuality - Justice O'Connor And The Establishment Clause, Marie Failinger

Faculty Scholarship

Among Justice Sandra Day O’Connor’s lasting contributions to Supreme Court Jurisprudence has been her attempt to contextualize Religion Clause jurisprudence, to move the Court in the direction of considering the circumstances surrounding government in assessing its constitutionality. Typical of this contributor has been her two decades of work in Establishment Clause law, in particular, ended by Lynch v. Donnelly, in which she introduced the “non-endorsement” test and one of the Ten Commandment cases, McCreary County, Kentucky v. American Civil Liberties Union, in which it was most recently employed. The non-endorsement test has served as one of the two commonly competing …

Law, Religion, And Medical Science: Conjunctive Or Disjunctive?, George P. Smith Ii

Scholarly Articles

No abstract provided.

Between A Man And His God: Violating The First Amendment Through Compelled Behavior Modification, Charles Davis

Seattle University Law Review

Part II of this Note discusses the facts leading up to Boone v. State and the First Amendment arguments raised by Boone. Part III offers a brief historical perspective on religion in the American legal system, emphasizing specific developments relevant to Boone's case. Part IV analyzes the court's fatally flawed analysis, and Part V addresses the ramifications of the holding and offers some suggestions.

Compassion Inaction: Why President Bush's Faith-Based Initiatives Violate The Establishment Clause, Martha A. Boden

Seattle University Law Review

The Administration's Faith-Based Initiatives would fail a constitutional challenge under the Establishment Clause of the First Amendment. Applying the three-pronged test developed in Lemon v. Kurtzman and Zelman v. Simmons-Harris, this Comment concludes that the Initiatives, (1) though purportedly secular, have been enacted for a sectarian purpose and are not neutral toward religion; (2) are coercive and fail to fulfill the condition of private choice because the rural poor, such as those in Franklin County, Washington, whom the Initiatives target, realistically cannot choose between non-religious and sectarian service providers; and (3) to the extent that Initiative funded programs can …

Context Is King: A Perception-Based Test For Evaluating Government Displays Of The Ten Commandments, Nathan P. Heller

Villanova Law Review (1956 - )

No abstract provided.

The Shattered Vessel: The Dying Person In Jewish Law And Ethics, Philip J. Bentley

Loyola University Chicago Law Journal

No abstract provided.

Christian Faith And Political Life: A Dialogue, Randy Beck

Georgia Law Review

The proper relationship of the Christian to the community's political and legal institutions has been a recurring issue since the earliest days of the church and the earliest days of our nation. The relevance of Christian faith to political participation again became a topic of conversation in this country following the 2004 presidential election. Since that election, Americans have engaged in much discussion regarding the role of religion in our nation's politics. Not all of this discussion has been productive. In the dialogue that follows, Jason Carter and Randy Beck discuss the political implications of Christian faith and prospects for …

A Reply To Professor Beck, Jason Carter

Georgia Law Review

The 2004 election reinvigorated the debate about Christianity's role in our nation's lawmaking. The election saw increased polarization between the secular left, and the politicized Christian right.' Evangelical Protestants voted overwhelmingly for the Republican candidate, George W. Bush, while the most secular voters voted overwhelmingly for John Kerry.2 The 2004 election emboldened the Christian right. In addition to what they believed was their crucial role in President Bush's victory, the Christian right celebrated the passage of constitutional amendments banning gay marriage in all eleven states where such amendments were on the ballot.? One leader of the Christian right stated that …

The Usa Patriot Act: A Policy Of Alienation, Kam C. Wong

Michigan Journal of Race and Law

This Article provides a brief overview of how Muslims were treated after 9/11. It documents how the USAPA and related measures have been used to monitor, investigate, detain, and deport Muslim U.S. citizens in violation of their civil rights. Of particular importance, is how the life circumstances of the Muslims in America have changed for the worse as a result of zealous enforcement and discriminatory application of the USAPA. In so doing, this Article seeks to provide concrete facts and a rich context to ascertain the implications of 9/11 on American society.

Jeffersonian Walls And Madisonian Lines: The Supreme Court’S Use Of History In Religion Clause Cases, Mark Hall

Faculty Publications - Department of History and Politics

In Everson v. Board of Education (1947), Justice Wiley Rutledge observed that '[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.' Scholars and activists argue about the relevance or irrelevance of the Supreme Court’s use of history in general, and the extent to which Justices are good historians. These debates have been particularly furious with respect to the Court’s use of history in religion clause cases. Although broad claims are …

Book Review, Mark C. Modak-Truran

Journal Articles

In volume 1, James Hitchcock provides a comprehensive historical treatment of all the U.S. Supreme Court cases involving the religion clauses. Volume 2 focuses on the broader “context of the continuing dialogue about the role of religion in public life” and its relationship to the Court’s interpretation of the religion clauses.

Toward A Genuine Debate About Morals, Religion, Politics, And Law: Why America Needs A Christian Response To The "Christian" Right, Jason Carter

Georgia Law Review

America's current debate about religion's role in politics offers a false choice. On one side is the politicized Christian right.' This group, loosely defined, consists of those political groups and leaders who associate themselves with traditional conservative ideas on culture and claim to represent fundamentalist or evangelical Christians. This group has been by far the most vocal advocate of the position that religion deserves an increased role in our nation's policy making. Indeed, it has come to dominate that position. The response to the Christian right has come almost exclusively from the secular left. It argues not with the Christian …

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

Articles by Maurer Faculty

No abstract provided.

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.

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.

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 …