"Of Substantial Religious Importance": A Case For A Deferential Approach To The Ministerial Exception,
2020
Notre Dame Law School
"Of Substantial Religious Importance": A Case For A Deferential Approach To The Ministerial Exception, Allison H. Pope
Notre Dame Law Review
This Note argues that, in order to remain consistent with the Religion Clauses’ protection of religious autonomy, civil courts must defer to the religious group’s determination of which of its employees play a role “of substantial religious importance” within the organization in carrying out its religious mission under its tenets, and are therefore “ministers,” rather than investigate and make that determination themselves. Part I provides background information on the First Amendment and an overview of the circuit court and Supreme Court decisions that laid the foundation for, built, adopted, and applied the ministerial exception as described in Hosanna-Tabor. Part …
A Different Kind Of Prisoner's Dilemma: The Right To The Free Exercise Of Religion For Incarcerated Persons,
2020
Notre Dame Law School
A Different Kind Of Prisoner's Dilemma: The Right To The Free Exercise Of Religion For Incarcerated Persons, Daniel T. Judge
Notre Dame Law Review
Part I will lay the foundation for the constitutional right to freedom of religion in the United States. It will explain how the Framers understood the right in the lead up to, and at the time of, the ratification of the Free Exercise Clause as part of the Bill of Rights. Part I will also address more modern advances in religious liberty protections for prisoners before discussing two recent milestones: the Religious Land Use and Institutionalized Persons Act and the Supreme Court’s decision in Holt v. Hobbs. Part II addresses the right to freedom of religion internationally. It begins …
Law's Racism: The Perpetuation Of Settler Colonialism In Ktunaxa V. British Columbia,
2020
University of Alberta
Law's Racism: The Perpetuation Of Settler Colonialism In Ktunaxa V. British Columbia, Christian J. Zukowski
Gettysburg Social Sciences Review
In considering the nexus between law, religion, and settler colonialism I consider a case in which an Indigenous freedom of religion claim under section 2(a) of the Canadian Charter of Rights and Freedoms was ruled by the majority of Supreme Court of Canada as not being a valid freedom of religion claim. In examining this decision, I will construct an analytical framework by which I will examine the decision in a way that considers the legal system in which it occurs, that legal system’s culture, and the relevance of land in this case. Using this analytical framework, I will tease …
Contracts And The Constitution In Conflict: Why Judicial Deference To Religious Upbringing Clauses Infringes On The First Amendment,
2020
Pepperdine University
Contracts And The Constitution In Conflict: Why Judicial Deference To Religious Upbringing Clauses Infringes On The First Amendment, Elica Zadeh
Pepperdine Law Review
When a Hasidic person files for divorce under New York law, either party to the marriage may invoke a declaratory judgment action to establish certain rights in a settlement agreement. If children are involved, such an agreement may include a religious upbringing clause, dictating that the child is to be raised in accordance with their then-existing religion—Hasidism. Deviation from the contract risks removal from the aberrant parent who intentionally or unwittingly allows the child to wane into secularism. Although the child’s best interest is the cornerstone of custodial analysis, a problem emerges when his or her best interest is couched …
Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law,
2020
University of Washington School of Law
Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law, Jennifer Mendoza
Washington International Law Journal
Aboriginal law is a developing and emerging area of the law in Canada. In fact, Aboriginal rights were not constitutionally protected until the ratification of the Canadian Constitution in 1982. What followed was a series of precedent-setting cases that clarified what “rights” meant under Section 35 of the Constitution, how Aboriginal title and rights could be established, and what duty the federal government had to the First Nations when trying to infringe on those rights. In 2017, the Canadian Supreme Court heard Ktunaxa Nation v. British Columbia, which was the first case to interpret Aboriginal rights under Section 2(a) religious …
When Environmental Obligations Collide With State Sovereignty: An International And Sharia Law Perspective,
2020
Wilfrid Laurier University
When Environmental Obligations Collide With State Sovereignty: An International And Sharia Law Perspective, Seyed Masoud Noori, Soheila Ebrahimi Louyeh
Consensus
This article critically reviews the notion of State sovereignty under international law and argues that to achieve eco-justice as well as sustainable development goals, a restrictive and ecological approach needs to be taken toward the principle of states’ permanent sovereignty over natural resources. Environmental sustainability requires states’ environmental obligations to be identified as erga omnes so they can be addressed toward the international community as a whole and fall within the scope of article 48 of the ILC Articles on States Responsibility. Interestingly, in complete alignment with this progressive interpretation, sustainable utilization of natural resources has a longstanding foundation in …
The Clergy-Penitent Privilege: The Role Of Clergy In Perpetuating And Preventing Domestic Violence,
2020
University of Nevada, Las Vegas -- William S. Boyd School of Law
The Clergy-Penitent Privilege: The Role Of Clergy In Perpetuating And Preventing Domestic Violence, Kami Orton
Nevada Law Journal Forum
Domestic violence occurs at alarming rates in all socioeconomic levels, races, locations, sexual orientations, and professions. Domestic violence occurs at similar frequencies among religious and non-religious individuals. Clergy play an important role in religious communities. The clergy-penitent privilege was created to protect the relationship between clergy and communicant and prevents clergy from testifying about spiritual communications. However, the privilege is currently an absolute privilege which is unnecessary and hurts victims and survivors of domestic violence. Additionally, the statutorily written privilege is not aligned with the application and practice of the privilege. Practice indicates clergy tend to desire to testify and …
Is The Establishment Clause Asymmetrical?,
2020
University of Rhode Island
Is The Establishment Clause Asymmetrical?, Sam Foer
Senior Honors Projects
Through numerous Establishment Clause cases, the Supreme Court has concluded that when public educators promote or denigrate religious views in the K-12 classroom, they violate the First Amendment. The Court has found that the protection of ‘freedom of conscience’ is embedded in the purpose of the Establishment Clause, which applies most strictly to the public school setting. This is because the sphere of conscience is most vulnerable to invasion in developing minds, and children are in a captive environment at school - they cannot escape from State instruction. Thus, states, school systems, and teachers who impose their religious beliefs onto …
Can We Have Our Cake And Eat It Too?: What Masterpiece Cakeshop And Religious Refusals Mean For Texas’S Adoption Bill,
2020
St. Mary's University
Can We Have Our Cake And Eat It Too?: What Masterpiece Cakeshop And Religious Refusals Mean For Texas’S Adoption Bill, Nadeen Abou-Hossa
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming.
The Cost Of Free Speech: Resolving The Wedding Vendor Divide,
2020
Fordham University School of Law
The Cost Of Free Speech: Resolving The Wedding Vendor Divide, Victoria Cappucci
Fordham Law Review
As marriage equality becomes fully realized in the United States, business proprietors increasingly refuse to service same-sex weddings on religious grounds. However, at the same time, state laws protect same-sex couples from discrimination in places open to the public. Such competing values have resulted in a line of “wedding vendor” cases. As the cases continue to proliferate, this Note examines when, and to what extent, the otherwise equally important values of free expression and equality should trump one another. This Note analyzes First Amendment compelled speech claims within the line of wedding vendor cases: specifically, whether wedding goods and services …
In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration,
2020
Pepperdine University
In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration, Skylar Reese Croy
Pepperdine Dispute Resolution Law Journal
Arguably, binding religious arbitration agreements are constitutionally problematic because they hinder freedom of religion: They inhibit parties’ ability to change their beliefs. However, religious arbitration agreements also offer an outlet for the religiously inclined to further practice their beliefs. This Article offers a middle ground: If a party to a religious arbitration agreement changes religion, he or she can claim a “conscientious objector” status if he or she can prove the agreement violates his or her sincerely held religious beliefs. Courts are allowed to inquire into the sincerity of a person’s religious beliefs. The religious question doctrine — which restricts …
Myanmar's Genocide And The Legacy Of Forgetting,
2020
Western Sydney University
Myanmar's Genocide And The Legacy Of Forgetting, Catherine Renshaw
Georgia Journal of International & Comparative Law
No abstract provided.
Studi Maqashid Asy-Syariah Atas Peristiwa Pidana: Pelecehan Seksual Melalui Media Elektronik Dalam Penagihan Utang-Piutang Fintech Ilegal,
2020
Universitas Indonesia
Studi Maqashid Asy-Syariah Atas Peristiwa Pidana: Pelecehan Seksual Melalui Media Elektronik Dalam Penagihan Utang-Piutang Fintech Ilegal
Journal of Islamic Law Studies
The rise and implementation of Fintech is a result of the formation of lifestyle and consumptive behavior. This pattern of consumption behavior bases the use of commodities on desire and not on need. This happens because people continually want to complete their desire to own or use something that is beyond their needs even though they are still financially unable. One of the behaviors was exploited by Fintech, which provides financing services illegally. Illegal Fintechs are considered dangerous because they are not subject to and comply with existing regulations so that the potential deviation in the implementation process can be …
Hukum Kredit Kepemilikan Rumah (Kpr) Dalam Perspektif Islam,
2020
Universitas Indonesia
Hukum Kredit Kepemilikan Rumah (Kpr) Dalam Perspektif Islam, Ira Apriyanti
Journal of Islamic Law Studies
Home is one of the primary needs that must be reached. The importance of sufficing these needs causes the demand for homes is increasing every year. Compared to 2018, the growth of Home Ownership Loans (KPR) in January 2019 increased by 147 basis points (bps) from the original 10.89% to 12.36%. It is estimated that credit growth is expected to increase in line with optimism about the strengthening monetary and economic conditions, supported by the risk of lending that is relatively well maintained. But to fulfilling these needs, not every person can easily buy a house in cash. As a …
Tinjauan Hak Asasi Manusia Terhadap Perilaku Lesbian, Gay, Bisexual, Transgender, Dan Queer (Lgbtq) Dalam Perspektif Hukum Islam,
2020
Universitas Indonesia
Tinjauan Hak Asasi Manusia Terhadap Perilaku Lesbian, Gay, Bisexual, Transgender, Dan Queer (Lgbtq) Dalam Perspektif Hukum Islam
Journal of Islamic Law Studies
No abstract provided.
Investasi Syariah Dalam Rangka Menegakan Prinsip Syariah,
2020
Universitas Indonesia
Investasi Syariah Dalam Rangka Menegakan Prinsip Syariah, Nur Alim Arrazaq
Journal of Islamic Law Studies
No abstract provided.
Tinjauan Hukum Islam Terhadap Larangan Kawin Sasuku Di Masyarakat Minangkabau,
2020
Universitas Indonesia
Tinjauan Hukum Islam Terhadap Larangan Kawin Sasuku Di Masyarakat Minangkabau, Vidya Nurchaliza
Journal of Islamic Law Studies
Customs in Minangkabau are known as customs that are along with Islamic norms. Almost all cultures in Minangkabau are Islamic teachings that are followed by the majority of the Minangkabau people. However, there is one custom that causes polemic in the community, namely the prohibition of marriage of Sasuku. Whereas in Islamic Law there are no prohibition of marriage with one tribe. On the other hand, according to Indonesian marriage law, a legal marriage is a marriage made according to the religion and beliefs of the bride and groom. This research was conducted using the normative juridical method of secondary …
Tinjauan Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 Sebagai Konstitusi Yang Islami,
2020
Universitas Indonesia
Tinjauan Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 Sebagai Konstitusi Yang Islami, Raihan Hudiana
Journal of Islamic Law Studies
The Constitution as a form of collective agreement is an important document containing values to be the highest referral system in regulating the life of nation and state. Looking at the sociological fact that Muslims are the majority in Indonesia, the spirit that was built at the beginning was to ensure the absolute necessity of how the basic values and main concepts of Islam can be fulfilled, while keeping in mind the needs and ensuring the rights of people from other religions. The view of some Muslims who assume founding father Indonesia has injured the spirit of the struggle of …
Quo Vadis Hukuman Pidana Kebiri Kimia Bagi Pelaku Kejahatan Seksual Pada Anak Di Indonesia,
2020
Universitas Indonesia
Quo Vadis Hukuman Pidana Kebiri Kimia Bagi Pelaku Kejahatan Seksual Pada Anak Di Indonesia, Ainunnisa Rezky Asokawati
Journal of Islamic Law Studies
Sexual assault committed against children become one of the polemics in the society. The government as the state protector accommodates the polemic by making the law in form of Law Number 17 of 2016 concerning the Stipulation of Government Regulation in place of Law Number 1 of 2016 concerning Second Amendment to Law Number 23 of 2002 concerning Child Protection. The regulation accommodated the society’s need by arranging punishment for the perpetrators of sexual assault affecting children cases. Article 81 of Law Number 35 of 2014 in the form of first amendment to the Child Protection Law concerning criminal threats …
First Amendment “Harms”,
2020
BYU Law
First Amendment “Harms”, Stephanie H. Barclay
Indiana Law Journal
What role should harm to third parties play in the government’s ability to protect religious rights? The intuitively appealing “harm” principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in light of the Supreme Court’s pending cases in Little Sisters of the Poor and Fulton v. City of Philadelphia. While focusing on harm appears at first to provide an appealing, simple, and neutral principle for avoiding other difficult moral questions, the definition of harm …
