Religion Law Commons^™

Religious Freedom In The Courts: The 1996–1997 Term Of The United States Supreme Court, Robert A. Destro

Scholarly Articles

No abstract provided.

The Crucifix Case: Germany's Everson V. Board Of Education?, Lark E. Alloway

Penn State International Law Review (1982 - 2011)

No abstract provided.

A Constitutional Case For Governmental Cooperation With Faith-Based Social Service Providers, Carl H. Esbeck

Faculty Publications

This Article will refer to separationism as based on "older assumptions." The Court's presuppositions concerning the nature and contemporary value of religion and the proper role of modem government underlie what will be referred to as a "traditional analysis" of the case law. Part I is a partial overview of the Supreme Court's cases since Everson, and has the goal of making the strongest arguments-within the framework of separationism-for the constitutionality of governmental welfare programs that permit participation by faith-based social service providers.

Part II is about separationism's major competitor, a theory centered on the unleashing of personal liberty to …

Rethinking The Supreme Court's Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine

Fordham Urban Law Journal

Part I of this Article discusses Supreme Court cases prior to 1981, in which the Court first expressed its hands-off approach to deciding questions of religious practice and belief. This Part suggests that in these decisions, as a result of a proper concern for religious autonomy, the Court already began the process of expanding the principle of judicial non-interference, at the cost of sacrificing effective adjudication of important constitutional issues. Part II of this Article critiques the Court's approach in Free Exercise Clause cases, identifying different problems that have arisen as a result of the Court's approach. This Part argues …

The Real Reason For Religious Freedom, John H. Garvey

Scholarly Articles

No abstract provided.

The Supreme Court's Jurisprudence Of Religious Symbol And Substance, David L. Gregory, Charles J. Russo

Loyola University Chicago Law Journal

No abstract provided.

Christian Constitutions: Do They Protect Internationally Recognized Human Rights And Minimize The Potential For Violence Within A Society? A Comparative Analysis Of American And Irish Constitutional Law And Their Religious Elements, S. I. Strong

Faculty Publications

Section II of this Article studies in greater detail the religio-legal debate currently being waged in American courts and legislatures, including a brief discussion of the religio-legal history of the United States. Section II also describes how the United States resembles and differs from Ireland such that subsequent comparisons will be more accurate. Section III compares the two constitutions by analyzing the provisions and policies most influenced by religion. First, general principles of sovereignty and constitutional interpretation are reviewed to understand the general constitutional framework of each nation. Second, the manner in which personal rights are treated by each nation's …

Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Carl H. Esbeck

Faculty Publications

It is often said that America's founding was an experiment in government. Certainly few features of the American constitutional settlement left more to future chance--and were more of a break with existing European patterns--than the Establishment Clause set out in the First Amendment. The new Republic sought to rely on transcendent principles to justify its unpre-cedented advancements in human liberty. Concurrently, the Founders reject ed any official or fixed formulation of these principles, for no public credo was to be established by law. So it is more than just a little ironic that the nation's most cherished human rights depend …

The Implications Of The Constitution’S Religion Clauses On New York Family Law, Ilene Barshay

Scholarly Works

No abstract provided.

Death Penalty: A Philosophical And Theological Perspective, 30 J. Marshall L. Rev. 463 (1997), Walter Berns, Nancy Bothne, William Bowers, Richard Dieter, Richard Land, James Lund, Austin Sarat

UIC Law Review

No abstract provided.

Race, Religion, And Cultural Identity: Reconciling The Jurisprudence Of Race And Religion, Tseming Yang

Indiana Law Journal

No abstract provided.

Habermas’S Discourse Theory Of Law And The Relationship Between Law And Religion, Mark C. Modak-Truran

Journal Articles

The relationship between law and religion has become the subject of a sustained and robust debate. However, unlike earlier theological attempts to ground law in religion or the Divine, participants in the modem debate rarely, if ever, argue for a theological or religious legitimation of law. Either implicitly or explicitly, there appears to be a modem consensus among legal scholars and philosophers that the world has been disenchanted. The world can no longer be viewed as an integrated, meaningful whole under a comprehensive religious or metaphysical worldview, and law can no longer be legitimized by its religious or metaphysical foundations. …

The Child's Right To An Open Future: Yoder And Beyond, Dena S. Davis

Law Faculty Articles and Essays

Every time I teach a class on church and state, I am reminded again of how much we owe to the religious minorities in our midst. If it were not for Amish, Quakers, Jews, Santerians and especially Jehovah's Witnesses, what an impoverished understanding we would have, not only of the religion clauses of the First Amendment, but also of the Free Speech Clause. The original parents in Wisconsin v. Yoder are now grandparents, and their children, with or without the benefit of a high school education, have grown to adulthood and probably have children of their own. But 25 years …

Ancient Answers To Modern Questions: Death, Dying And Organ Transplants - A Jewish Law Perspective, Stephen J. Werber

Law Faculty Articles and Essays

Core values of the Jewish heritage are life and family, not death. An interpretation of Halachah which permits a broad definition of passive euthanasia without lapsing into acceptance of active euthanasia or its more evil cousin, assisted suicide, is consistent with these values. Also consistent with these values and the Jewish tradition is a modern definition of death which recognizes advances in medical technology that were beyond the knowledge or imagination of those who created the vast body of Rabbinic law. This approach will not only ease the suffering of families, it will allow organ transplants to save the lives …

Her Honor: An Islamic Critique Of The Rape Laws Of Pakistan From A Woman-Sensitive Perspective, Asifa Quaraishi

Michigan Journal of International Law

This article critiques the rape laws of Pakistan from an Islamic point of view which is careful to include women's perspectives in its analysis. Unlike much of what is popularly presented as traditional Islamic law, this woman-affirming Islamic approach will reveal the inherent gender-egalitarian nature of Islam, which is too often ignored by its academics, courts, and legislatures. This article will demonstrate how cultural patriarchy has instead colored the application of certain Islamic laws in places like Pakistan, resulting in the very injustice which the Quran so forcefully condemns.

Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong

Michigan Journal of International Law

Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this discussion and an overview of the history of both Israel and Iran. It explains why each nation has chosen to structure itself as it has and why the imposition of U.S.-style secularism would be an inappropriate method of dealing with the religio-legal conflict in the two societies. Part II compares the fundamental or constitutional laws of the two nations by analyzing the provisions, policies, and practices most influenced by religion. After identifying and analyzing the laws themselves in Part …

Hostile Environments And The Religious Employee, Theresa M. Beiner, John M. A. Dipippa

Law Faculty Scholarship

No abstract provided.

Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong

Faculty Articles

Because law and religion are by themselves complex cultural and historical issues, any study of the interaction between the two will be at least as complicated. If one is to understand both a State's current re­ligio-legal regime and what reform measures are most likely to succeed there, it is necessary to understand at least a little of the nation's history and majority religion. Therefore, Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this dis­cussion and an overview of the history of both Israel and Iran. It explains why …

Islam, Law And Custom: Redefining Muslim Women's Rights, Azizah Y. Al-Hibri

Law Faculty Publications

In discussing personal status codes, the article focuses on three specific issues: the right of a woman to contract her own marriage, the duty of the wife to obey her husband, and the right of the wife to initiate divorce. There are several good reasons for focusing on these issues. Foremost among them is the fact that they have been and continue to be of great concern to Muslim women. Another reason is that despite their diverse subject matter, these three issues are based on the same jurisprudential foundation. Hence, our discussion and critical analysis of that foundation will have …

Good Catholics Should Be Rawlsian Liberals, Leslie C. Griffin

Scholarly Works

No abstract provided.

Of Pandas, People, And The First Amendment: The Constitutionality Of Teaching Intelligent Design In The Public Schools, Jay D. Wexler

Faculty Scholarship

Despite the Supreme Court's 1987 decision in Edwards v. Aguillard, striking down Arkansas' statute requiring equal time for the teaching of creationism and evolution, the debate over whether some form of creationism should be taught in public schools has recently enjoyed a resurgence. In this note, Jay Wexler applies the Supreme Court's Establishment Clause to a new variant of creationism that posits the existence of an intelligent designer as an alternative to evolution. Wexler argues that teaching intelligent design theory in the public schools violates the Establishment Clause. After explaining that the Supreme Court has always applied the Establishment Clause …

Defining Religious Tolerance: German Policy Toward The Church Of Scientology, Emily A. Moseley

Vanderbilt Journal of Transnational Law

Members of the Church of Scientology face persecution from the German government and its citizens, raising international concern over the rights of religious minorities in a country determined to overcome its Nazi past. The German Constitution provides many protections for religious freedom and also allows a relatively close relationship between church and state. Historically, the German state has been closely intertwined with the traditionally dominant churches, and today Germans enjoy a great deal of freedom of religion. Until very recently, however, the Federal Constitutional Court has not upheld the similar freedom from religion guaranteed by the "establishment clause" in the …

Gluttony, William I. Miller

Articles

Gluttony does not have the grandeur of pride, the often brilliant strategic meanness of envy and avarice, the glory of wrath. It does manage to gain some small allure by its association with lust, its sexy sibling sin of the flesh. Yet there is something irrevocably unseemly about gluttony, vulgar and lowbrow, self-indulgent in a swinish way. Gluttony is not the stuff of tragedy or epic. Imagine Hamlet too fat to take revenge or Homer making his topic the gluttony of Achilles rather than his wrath. With gluttony, compare pride and anger, sins that mark the grand action of revenge, …

On Doing Justice And Walking Humbly With God: Catholic Social Thought On Law As A Tool For Achieving Justice, Lucia A. Silecchia

Scholarly Articles

The text of the 1996 “Mirror of Justice” lecture at the Catholic University of America, this article explores the potential - and the limitations - of law as a tool for achieving justice. Drawing heavily on principles of Catholic social thought, it also considers the various ways in which “justice” may be defined.

What’S Next After Separationism?, John H. Garvey

Scholarly Articles

Professor Carl Esbeck argues in his article' that the traditional theory of separationism is giving way to a theory of equality (or more accurately, protection for religious choice). The argument is very astute, and I agree with much of it. I will give my own perspective on the same two points.

Civilizing Religion, Kurt T. Lash

Law Faculty Publications

Is it appropriate to restrict abortion at any stage in pregnancy on the ground that human life is sacred? Should the public square be open to biblical arguments against homosexuality? Or, to frame the issue in a more scholarly fashion: What role may religious arguments play, if any, either in public debate about what political choices to make or as the private basis of a political choice? In his recent book, Religion in Politics: Constitutional and Moral Perspectives, Michael Perry addresses these questions as a matter of constitutional law and political morality. Perry has been down this road before, most …

"The Liberal Agenda": Biblical Values And The First Amendment, Burton Caine

Touro Law Review

No abstract provided.

The Improbability Of Religion Clause Theory, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

The Astonishing Year(S) Of 1996: A Confusion Of Tongues And Alphabetical Camels The First Time As Tragedy, Kenneth Lasson

All Faculty Scholarship

Such irreverence was nothing new to Nimrod. A half-century earlier he had encouraged [Abraham], who'd publicly renounced idolatry even though his father manufactured and sold graven images: how ridiculous, he reasoned, to worship clay figures that had been made the day before! Thus did Nimrod have Abraham thrown into a fiery furnace, from which, according to Midrashic legend, he emerged unscathed. Unlike Nimrod, Abraham eschewed power in favor of teaching ethics and morality to his people.

In the intervening years Nimrod concerned himself with the building of great cities as testimony to his own power and invincibility. And in 1996 …

The Failure Of The Religious Freedom Restoration Act Under Section 5 Of The Fourteenth Amendment, William W. Van Alstyne

Faculty Publications

No abstract provided.