Religion Law Commons^™

Ulama's Resistance To The Closing Of Worship Places During The Covid-19 Pandemic In Indonesia, Luthfi Hadi Aminuddin, Isnatin Ulfah, Siti Rohmaturrosyidah Ratnawati, Chafid Wahyudi

The Qualitative Report

PPKM Darurat (the implementation of community activity restrictions) is one of the policies implemented by the Indonesian government to control the spread of COVID-19. PPKM Darurat received opposition from ulama (Islamic religious leaders) because all places of worship had to be closed. Our qualitative study explores the forms, factors, and impacts of ulama’s resistance to the closing of worship places during the COVID-19 pandemic. This research data were collected through interviews with participating ulama. This study indicates that ulama’s resistance to the closure of places of worship during the PPKM Darurat period manifested in discourse and action. In …

Contingency And Contestation In Christianity And Liberalism, Michael P. Moreland

Faculty Publications

No abstract provided.

The Urgency And Strategic Role Of Maqasid Shari'ah And Maslahah In Responding To The Legal And Economic Challenges Of Muslim Business, Fadhli Suko Wiryanto

Journal Of Middle East and Islamic Studies

The study of maqashid shari'ah began to receive intensive attention after the Prophet's death, especially when the Companions were faced with new problems and social changes that had never occurred when the Prophet Muhammad was still alive. With the existence of social changes as a result of the demands of the times and the dynamics of society, thus demanding the creativity of the friends seriously to conduct a study of the maqashid shari'ah as an effort to make legal breakthroughs to anticipate social changes that occur. Maqashid shari'ah and maslahat have a very urgent and strategic role to be used …

Transforming Natural Religion: An Essay On Religious Liberty And The Constitution, Steven J. Heyman

BYU Law Review

Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding–era Americans thought when they incorporated the First Amendment’s Free Exercise Clause into the constitutional order that they were creating. Contrary to the views taken by many judges and scholars, …

A Juror’S Religious Freedom Bill Of Rights, Antony Barone Kolenc

BYU Law Review

The prosecution of Democrat Congresswoman Corrine Brown for campaign corruption was perhaps the most significant and dramatic political trial ever to hit Northeast Florida—and that was before the Holy Spirit showed up and spoke to Juror 13 during deliberations. The Brown case is the springboard for the article’s focus on a juror’s right to religious liberty, one of the nation’s most precious constitutional rights. The Article addresses first principles behind the process of jury selection in the United States, as well as the importance and safeguarding of religious liberty in the U.S. Constitution. It then proposes six tenets to be …

Walls Or Bridges: Law’S Role In Conflicts Over Religion And Equal Treatment, Martha Minow

BYU Law Review

Presented as the Bruce C. Hafen Lecture, Brigham Young University Law School January 18, 2023

“[D]o you see religion as a club or do you see religion as a path? Do you see it as a wall that separates you or do you see it as a bridge that connects you to God and other people?

— Keith Ellison1

Property And Moral Responsibilities: Some Reflections On Modern Catholic Social Theory, Lucia A. Silecchia

Texas A&M Journal of Property Law

Professor Eric Claeys’s forthcoming book, Natural Property Rights, offers a deep perspective on property rights principles. However, while the law tends to focus—as I believe it must—on property rights, rights are inextricably intertwined with duties or responsibilities. The natural rights framework for property is, as Claeys says, “good enough for government work.” It reflects a principled way for the government to allocate property rights and use the law to protect them.

However, it is necessary to look beyond what is desirable for government to protect through law. Other sources propose parameters for reasoned use of property with an emphasis …

Sacred Spheres: Religious Autonomy As An International Human Right, Diana V. Thomson, Kayla A. Toney

Catholic University Law Review

How should courts resolve thorny human rights disputes that arise within religious groups? According to an emerging international consensus, they shouldn’t. When a case involves sensitive internal decisions by a religious organization, such as choosing who is qualified to teach the faith, courts are increasingly taking a hands-off approach. This global consensus has formed across international treaties, tribunals, and domestic courts in European and American nations. Every major human rights instrument and many international and domestic courts recognize that religious freedom must extend to religious communities, especially houses of worship and schools where believers gather to practice their faith and …

Appellant's Opening Brief, Zack Greenamyre, W. Gerald Weber, John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 23-10332
Rev. Stephen Jarrard v. Sheriff of Polk County

Appeal from the United States District Court for the Northern District of Georgia No. 4:20-cv-00002-MLB

From the Summary of the Argument

This is an unusual appeal. Sheriff Johnny Moats and Chief Jailer Al Sharp all but admitted that they retaliated against Jarrard and barred him from Polk County Jail’s volunteer ministry program because they disagree with his religious belief that baptism is required for salvation. Indeed, Moats told Jarrard in writing that Jarrard’s beliefs are “contrary to the teaching of the Bible” and that he would not be allowed to …

When Life Begins: A Case Study Of The Unitarian Universalism Faith And Its Potential To Combat Anti-Abortion Legislation, Jennifer O'Rourke

University of Cincinnati Law Review

No abstract provided.

Clark Memorandum: Spring 2023, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Fidei Defensor: Defending Faith to Enable Communities of Reconciliation
• Conscience, Peacebuilding, and Faith-Based Law Schools
• Elvis Was Right: The Unavoidable Intersection Between Personal Values and a Fulfilling Practice of Law
• The Future of the Establishment Clause: Implications of Kennedy v. Bremerton School District

Christians And/As Liberals?, Steven D. Smith

Notre Dame Law Review

Christianity and liberalism were made to fit each other, like hand and glove. According to some interpretations, anyway. Liberal constitutionalism, with its commitments to freedom and equal human dignity, is the political system that reflects and embodies Christian commitments; and the constitutional legal order that accompanies liberalism, centrally including legally enforced rights of religious freedom, is the mode of government that best permits Christians to live in accordance with their faith in a fallen and deviant world. Thus, a couple of decades ago, Robert Kraynak reported that “[a]lmost all churches and theologians now believe that the form of government most …

"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan S. Chapman

Notre Dame Law Review

This Essay first attempts to understand how a contested Christian doctrine found its way into constitutional law. It does so through a reverse genealogy of ideas—an archaeology, perhaps. The Essay begins by sketching how U.S. constitutionalism, in both theory and doctrine, reflects the belief that the “arc of the moral universe is long, but it bends toward justice.” It then suggests that underlying this constitutional theme is a merger of two features of American civil religion: the tradition of treating the Declaration of Independence and the Constitution as the central texts of a sacred canon and the belief that America …

Catholic Liberalism And The Liberal Tradition, Kathleen A. Brady

Notre Dame Law Review

Criticisms of liberalism are nothing new. All political traditions have their detractors, and as in the past, today’s critics of liberalism include those on the left and right as well as religious believers and those without religious affiliations. However, in very recent years, far-reaching and deepening critiques have been emerging from an unlikely source. Throughout American history, the nation’s religious communities have been among the strongest defenders of religious freedom as well as other fundamental liberal values such as limited government, democratic institutions, civic equality, and other civil freedoms. Conservative Christians have been no exception. With other Americans, they have …

"It Is Tash Whom He Serves": Deneen And Vermeule On Liberalism, Andrew Koppelman

Notre Dame Law Review

I worry that some recent Christian criticisms of liberalism are the kind of fantasy that Murdoch warned about, caricaturing what they purport to oppose. They are also ominously vague about what would replace it. Both writers echo earlier Christian flirtations with Marxism: philosophical errors lead idealists to gullibly embrace authoritarian kleptocrats who do not give a damn about the people the idealists are trying to help.

I will focus on the work of Patrick Deneen, with some reference to the more abbreviated but similar critiques of liberalism by Adrian Vermeule. Both claim that liberalism’s relentless logic tends to destroy communities …

Natural Law, Parental Rights, And The Defense Of "Liberal" Limits On Government: An Analysis Of The Mortara Case And Its Contemporary Parallels, Melissa Moschella

Notre Dame Law Review

This Article explores parallels between integralists’ defense of the Mortara case (in which Pius IX removed a child from his parents’ care in order to provide him with a Catholic education) and contemporary progressive arguments for overriding the authority of parents who do not want their gender-dysphoric children to undergo social or medical gender transition. In Part I, I offer an overview of the natural law case for limited government, then in Part II I turn more specifically to a natural law defense of parental rights as an essential aspect of limited government. In the following Part, I return to …

The Primacy Of Free Exercise In Public-Employee Religious Speech, Nicholas J. Grandpre

Notre Dame Law Review

This Note addresses the question left open by the Court and highlighted by Justice Thomas: under what standard of review should courts review public-employee religious expression protected by both the Free Speech and Free Exercise Clauses? This Note begins by introducing the doctrine of government-employee speech. Then, this Note surveys proposals within existing scholarship that address how courts ought to treat public-employee religious expression. In doing so, this Note evaluates the following proposals: (1) applying Pickering balancing as is; (2) applying a modified version of Pickering balancing; (3) replacing Pickering balancing with intermediate scrutiny; (4) the Holmesian approach: deeming public-employee …

The Rise Of Public School Prayer With The Demise Of Lemon V. Kurtzman, Samantha Thompson Lipp

Mercer Law Review

The Supreme Court of the United States has officially overturned Lemon v. Kurtzman. The controversial and heavily criticized Lemon opinion sets forth the primary test courts used for over fifty years in analyzing claims under the Establishment Clause. The official overruling of Lemon signals the Supreme Court’s embrace of a more accommodating approach toward religion in the public sphere. This Comment predicts how, in Lemon’s absence, the Supreme Court will likely reassess precedent in the context of public school prayer and become more accommodating of religion.

In Part II, this Comment addresses the three approaches to interpreting the …

Religion As Disobedience, Xiao Wang

Vanderbilt Law Review

Religion today offers plaintiffs a ready path to disobey laws without consequence. Examples of such disobedience abound. In the past few years alone, courts have enjoined vaccine mandates, invalidated stay-at-home orders, and set aside antidiscrimination laws protecting same-sex couples. During the 2021-2022 Term, plaintiffs relied once again on free exercise to subvert laws governing public education, capital punishment, and school prayer. Some hospitals have begun denying fertility treatment to LGBTQ employees on this same basis.

How did religion become a skeleton key for lawbreaking without repercussion? The conventional wisdom is that, after decades of neglect, the Supreme Court finally began …

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

Court Briefs

No. 23-131
Franklin Loving v. Robert Morton

Appeal from the United States District Court for the Southern District of New York, No. 3:20-cv-11135

From the Summary of Argument

The Second 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 availability of free exercise claims, free …