Religion Law Commons^™

Second-Best Free Exercise, Christopher C. Lund

Fordham Law Review

The future of the Free Exercise Clause is up in the air. Thirty years ago, in Employment Division v. Smith, the Supreme Court held the Free Exercise Clause only protected against religious discrimination and did not require exemptions from neutral and generally applicable laws.

Yet despite having an official rule against religious exemptions, the Roberts Court has somehow managed to give religious exemptions in case after case. This illustrates Smith’s waning power—the case has become more of an obstacle for courts to work around than a precedent for courts to obey. But these victories have also come to …

Brief Amicus Curiae Of The Bruderhof, Clear, The Jewish Coalition For Religious Liberty, And The Sikh Coalition In Support Of Appellant, Stephanie Hall Barclay, Francesca Matozzo

Court Briefs

No. 22-30686
Damon Landor v. Louisiana Department of Corrections and Public Safety

Appeal from the United States District Court for the Middle District of Louisiana, No. 3:21-cv-733 The Honorable Shelly D. Dick, Chief Judge

From the Summary of the Argument

The Fifth Circuit should re-examine its precedent to allow for monetary damages for individual-capacity suits under the Religious Land Use and Institutionalized Persons Act (RLUIPA) for three reasons. First, RLUIPA’s text follows the same approach as 42 U.S.C. § 1983 and should be interpreted to afford the same types of broad remedies. Before Employment Division of Oregon v. Smith, …

Religious Liberty And Judicial Deference, Mark L. Rienzi

Notre Dame Law Review

Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.

The Supreme Court took a decidedly Thayerian approach to the First Amendment …

Clark Memorandum: Fall 2022, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• A Certain Idea of BYU
• Building Bridges Between the Latter-day Saint and Jewish Communities
• Exemplary Scholars, Devoted Leaders

Reclaiming Establishment: Identity And The ‘Religious Equality Problem’, Faraz Sanei

Law Faculty Scholarship

Since at least 2017, the Court has implicitly recognized a right of equal access to generally available public benefits based on the beneficiary's religious identity or status. In Carson v. Makin (2022), the Court went a step further and, for the first time, concluded that the “status-use distinction lacks a meaningful application” in both theory and practice. It then held that restrictions on the use of public benefits for sacral purposes amount to religious discrimination because they impose substantial burdens on free exercise rights. Carson's holding, and the rationale underlying it, contravene settled case law and effectively gut the Establishment …

Judging From Above: French Feminists & Their Influence On The Veil Debate, Emma Caroline Delapré

Claremont-UC Undergraduate Research Conference on the European Union

Over the past two decades, the international community has found itself questioning France’s application of laïcité and the egalitarianism it supposedly ensures, particularly regarding veils associated with the Islamic faith. Integral to the face veil debate is the advocacy of French feminists, especially those who identify as pro-ban. Overarchingly, pro-ban feminists argue that the practice of wearing face veils or coverings undermines a French citizen’s obligation to foster cohesion in the public sphere through the acceptance of republican norms. This viewpoint informs the analysis of the state of social division in France undertaken here. The tools of analysis include a …

Brief Amicus Curiae Of The Bruderhof, Clear, Muslim Advocates, And The Sikh Coalition In Support Of Appellant, Stephanie Hall Barclay, Francesca Matozzo

Court Briefs

No. 22-2342
Thomas Walker v. John Baldwin

Appeal from the United States District Court for the Northern District of Illinois, Western Division, Honorable Iain D. Johnston (3:19-cv-50233)

From the Summary of the Argument

The Seventh Circuit should re-examine its precedent to allow for monetary damages for individual capacity suits under the Religious Land Use and Institutionalized Persons Act (RLUIPA) for three reasons. First, RLUIPA’s text follows the same approach as 42 U.S.C. § 1983 and should be interpreted to afford the same types of broad remedies. Before Employment Division of Oregon v. Smith, 494 U.S. 872 (1990), reduced the …

Racecraft And Identity In The Emergence Of Islam As A Race, Cyra Akila Choudhury

University of Cincinnati Law Review

Can a religion, over time and through its social and legal resignification, come to be a race? Drawing on Critical Race Theory (“CRT”), Critical Discourse Theory, the work of Karen E. and Barbara J. Fields and Cedric Robinson, this article argues that Islam has emerged as a race and Muslims as a racial group. To support the claim, Part I examines the theoretical basis for the argument. Applying the concept of “racecraft,” the article theorizes that racism produces both the racial group and race. As many have already argued, race is not based in biology; it is not a fact …

Collaborative Constructions: Designing High School History Curriculum With The Lost & Found Game Series, Owen Gottlieb, Shawn Clybor

Articles

This chapter addresses design research and iterative curriculum design for the Lost & Found games series. The Lost & Found card-to-mobile series is set in Fustat (Old Cairo) in the twelfth century and focuses on religious laws of the period. The first two games focus on Moses Maimonides’ Mishneh Torah, a key Jewish law code. A new expansion module which was in development at the time of the fieldwork described in this article that introduces Islamic laws of the period, and a mobile prototype of the initial strategy game has been developed with support National Endowment for the Humanities. The …

Religious Liberty Interest Convergence, Asma T. Uddin

William & Mary Law Review

Americans are deeply polarized on a plethora of issues. One of the most prominent areas of polarization is religious liberty, which in recent years has increasingly pitted conservative, white Christians against a range of marginalized minorities, particularly Muslims. The divide threatens Muslims’ rights and the vitality of religious liberty more broadly. This Article assesses the extent to which self-interest— especially the self-interest of the conservative Justices of the Supreme Court—can help depolarize religious liberty.

Professor Derrick Bell’s theory of “interest convergence” helps connect different self-interests that, in turn, enable issue-specific coalitions strong enough to effect serious cultural and legal change. …

Brief Of Religious Liberty Scholars And Employment Law Scholars As Amici Curiae In Support Of Petitioner, Douglas Laycock, John A. Meiser, Richard W. Garnett

Court Briefs

No. 22-174
Gerald E. Groff v. Louis DeJoy

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit

From the Summary of Argument

This case is an ideal vehicle for correcting an error that has undermined protection for religious workers across the country, in defiance of clear statutory text and underlying principles of religious liberty.

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Clinic In Support Of Plaintiffs-Appellants, John A. Meiser, Francesca Genova Matozzo

Court Briefs

No. 22-11674
Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama

Appeal from the United States District Court for the Southern District of Alabama No. 1:16-cv-00395

From the Summary of the Argument

This Court already corrected the district court’s errant understanding of RLUIPA’s substantial-burden analysis once in this case. Unfortunately, a second correction is needed now.

In Thai Meditation Association’s first appeal, this Court explained that “the district court misread our opinion in Midrash” and, as a consequence, had erroneously required the Association to show that the government “completely prevent[ed]” its religious exercise in order to demonstrate …

The Saudi Judge's Discretion In Liquidated Damage Clauses: An Applied Analytical Study In Light Of Islamic Sharia Law, Salman Mufleh R. Al-Kahtani

Maurer Theses and Dissertations

This dissertation studies the treatment by Saudi judges under Islamic Sharia law of liquidated damages clauses in contracts, a critical part of modern commercial transactions.

After introducing the basic and secondary sources of Islamic law and discussing the current treatment of the liquidated damages clause by Saudi judges according to general Islamic rules and the four jurisprudence schools, this dissertation demonstrates that Saudi judges have broad discretion in applying jurisprudence rules, particularly Hanbali jurisprudence, the applicable jurisprudence in the Saudi courts.

Numerous interpretations of the same jurisprudential rule exist, resulting in multiple judicial rulings for the same jurisprudential rule. Among …

Parading The Horribles: The Risks Of Expanding Religious Exemptions, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

People of faith now have a constitutional right to practice their religion—even when doing so conflicts with a government law or policy — that is more rigorously protected than nearly any other right. Some states have passed bills that provide an even broader right to such “religious exemptions” from the law than provided under the U.S. Constitution. Other religious exemption bills have been introduced and await consideration.

A Religious Right To Abortion: Legal History And Analysis, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

There is a long and rich history of religious support, across a wide range of faith traditions, for the right to reproductive autonomy, including abortion. A number of religious denominations, including the Presbyterian Church, Reform and Conservative Judaism, the United Church of Christ, and the Unitarian Universalist Association, support a legal right to abortion in most or all circumstances. Several religious denominations have even — long before the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization — issued statements explaining that the right to reproductive health care is an essential aspect of their members’ religious …

Sovereign Imaginaries: Visualizing The Sacred Foundation Of Law’S Authority, Richard K. Sherwin

Articles & Chapters

If a world is to be lived in, it must be founded. This foundational function belongs to the sovereign imagination. What a polity names as sovereign in the state of exception, when the sacred irrupts anew, is a matter of individual and collective responsibility. In this dispensation, law, politics, and religion become inescapably entangled in metaphysics. It behooves us to understand the nature and consequences of this state of affairs.

The Parishioner & The Probationer: Make Probation Non-Profit Again, James Rex Lee

BYU Law Review

No abstract provided.

Upaya Pemerintah Terhadap Perlindungan Ekspresi Budaya Tradisional Batik Motif Parang Sebagai Warisan Budaya Dunia, Raden Zulfikar Supinarko Putra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Batik is not just a design on a piece of cloth, more than that, batik is a soul that blends in the procession of Indonesian society. Since the baby has been carried with a batik cloth, weddings wear batik cloth until when they die they will be covered with batik cloth too usually. This fact become a consideration for UNESCO to establish Indonesian Batik as a Masterpieces of the Oral and Intangible Heritage of Humanity in the Fourth Session of The Intergovernmental Committee. This research uses a normative legal research method that is descriptive and analytical using a statutory …

Perbedaan Akad Wakalah Bil Ujrah Dan Akad Qard Terhadap Permasalahan Akad Pembelian Barang Dalam Kehidupan Sehari-Hari, Zendy Sellyfio Ardiana

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

The wakalah bil ujrah and qard contract are contracts that often cause difficulties in implementing the purchase of goods in everyday life, both in safekeeping for purchasing goods and for buying and selling in general. Where if it is wrong in its application, it can cause income in a sale and purchase to be haraam due to an error in understanding the contract used and not describing benefit as the core of maqashid al-sharia which has an important role in determining Islamic law. The purpose of this paper is to find out how the solution to the application of …

Tinjauan Yuridis Dalam Penyelesaian Pelanggaran Ham Berat Melalui Komisi Kebenaran Dan Rekonsiliasi Di Afrika Selatan Dan Indonesia, Tshana Erfandi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Several countries are currently developing a solution to the problem by establishing a particular commission. The commission works outside the courts, parliament and executive. In Indonesia, In Indonesia. The People's Consultative Assembly set a stipulation regarding the establishment of the National Center for Truth and Reconciliation: (NCTR) in 2000. This stipulation has the intent and purpose for national unity to identify existing problems, determine the conditions that must be made in order to achieve national reconciliation and establish policy direction as a guide to carry out the consolidation of unity of a nation. Whereas in South Africa, the National …

Perkembangan Politik Hukum Islam Pasca Reformasi Dalam Perspektif Negara Hukum Hans Kelsen, Marsono Wibowo

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

As a country with the largest Muslim population in the world, it will directly or indirectly affect the development of the living order of the Indonesian people. The regimes change from time to time with policies that different from one to another, provide a variety of colors in the life of the nation and state. As a legal expert, Hans Kelsen explains the connection between law, morality and religion. How do each other influence each other, and what is the connection of that thing in the life of the nation and state in Indonesia.

Keywords: Politics, Reform, Islamic Law, …

ShīʿĪ Legal Discourses In Iraq And Lebanon: Exploring The Intersection Of Juristic Rulings And State Legal Regimes, M. Mehdi Ali

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Look Who's Talking: Conscience, Complicity, And Compelled Speech, B. Jessie Hill

Indiana Law Journal

Compelled speech claims, which arise under the Free Speech Clause, and complicity claims, which usually arise under the Religious Freedom Restoration Act (RFRA), are structurally similar. In each case, an individual claims that the government is forcing her to participate in a particular act that violates her religious or moral beliefs and imperatives, sending a false and undesired message to others and causing a form of spiritual or dignitary harm. It is therefore no surprise that compelled speech claims are often raised together with complicity claims in cases where religious individuals challenge the application of generally applicable laws to themselves. …

Ministerial Employees And Discrimination Without Remedy, Charlotte Garden

Indiana Law Journal

The Supreme Court first addressed the ministerial exemption in a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The ministerial exemption is a defense that religious employers can invoke in discrimination cases brought by employees who qualify as “ministerial,” and it is rooted in the First Amendment principle that government cannot interfere in a church’s choice of minister. However, Hosanna-Tabor did not set out a test to determine which employees are covered by this exemption, and the decision was susceptible to a reading that the category was narrow. In 2020, the Court again took up the ministerial exemption, …

A Nun, A Synagogue Janitor, And A Social Work Professor Walk Up To The Bar: The Expanding Ministerial Exception, Patrick Hornbeck

Buffalo Law Review

Some employees who hold significant positions within some religious organizations fall outside the protections of certain laws, especially employment discrimination laws. But which employees, which organizations, and which laws? In its 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court reaffirmed the “ministerial exception” doctrine, a constitutional immunity that is “extraordinarily potent” where applicable.1 The doctrine exempts religious employers from liability for nearly all forms of discrimination, some torts, and some breaches of contract, even when an employer does not act for religious reasons.

This Article argues that Our Lady of Guadalupe School marks a …

Brief Of Amicus Curiae Religious Freedom Institute In Support Of Petitioner, John A. Meiser, Nicole Stelle Garnett, Richard W. Garnett Iv, Francesca Genova Matozzo

Court Briefs

No. 21-1405
Lester J. Smith v. Timothy Ward

On Petition for Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit

From the Summary of Argument

Lester Smith comes to this Court in unusual circumstances: the district court found that the Georgia Department of Corrections offered no rationale that could justify its prohibition on beards longer than half an inch under RLUIPA, and yet— without disputing that finding—the Eleventh Circuit ruled that the State may still enforce the half-inch limitation against Smith. The Eleventh Circuit’s denial of any relief from what has been shown to be …

Liberalism, Catholic Integralism, And The Question Of Religious Freedom, Xavier Foccroulle Ménard, Anna Su

BYU Law Review

This Article investigates new Catholic integralism and its critique of liberalism and aims to answer whether a liberal idea of religious freedom is possible under an integralist regime. To do so, we first sketch the respective views of liberalism and Catholic integralism on each other, with an emphasis on integralism. For integralism, liberalism is not merely a political phenomenon, but a comprehensive worldview with hidden metaphysical and theological implications. Integralism views the function of political rule as ordering human beings to their final cause. We specifically delve in foundational Catholic principles to guide rulers when governing—prudence and subsidiarity—to establish how …

Separated At Baptism: What The Mortara Case Can Teach Us About The Rejection Of Natural Justice By Integralists And Progressives, Francis J. Beckwith

BYU Law Review

No abstract provided.

Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider

BYU Law Review

In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have …

Political Partisanship And Sincere Religious Conviction, Mark Satta

BYU Law Review

In order for a religious conviction to receive protection under the First Amendment or the Religious Freedom Restoration Act (RFRA), it must be a sincere religious conviction. Some critics of the Supreme Court’s ruling in Burwell v. Hobby Lobby have suggested that the plaintiffs in that case and in related cases were motivated more by political ideology than by sincere religious conviction. The remedy, they argue, is for courts to be quicker to scrutinize claims of religious sincerity. In this Article, I consider another possibility—namely, that current sociopolitical partisanship in the United States has eroded a clear distinction between political …