A Comparative Analysis of Laws Pertaining to Same-Sex Unions

The Virtues of Law in the Politics of Religious Freedom | Journal of Law and Religion

    Berger, Benjamin L., The Virtues of Law in the Politics of Religious Freedom (2013). Journal of Law and Religion, Vol. 29, No. 3, 2014, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2409224

    The moral force and capacity for inspiration of both religion and politics alike arise in part from the sense that they authentically map the world as we find it, yielding claims about how it should be. This paper asks what role we might imagine for law in this “hyper-real” world of religion and politics, arguing that law can display distinctive virtues linked to its capacity for strategic agnosticism about the real. Applying Sunstein’s idea of “incompletely theorized agreements” to the politics of religious freedom, the paper examines the role of law as a tool of adhesion in two very different constitutional settings – Canada and Israel – and argues for modesty as a functional virtue in law and legal process. Viewed in this way, law draws its worth from its tolerance for ambiguity, its sub-theoretical nature, and its pragmatic proceduralism, seeking to sustain political community in the presence of normative diversity, rather than speaking truth to difference.


  • Posted: 03/18/2014
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  • Category: Global: Religious Liberty
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  • Source: ssrn.com

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Gender and the Institutional Nature of Marriage

Silence is Golden: Moments of Silence, Legislative Prayers, and the Establishment Clause | Northwestern University Law Review

Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others | The Modern Law Review

Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey | World Politics

Smith’s Individualized Governmental Assessment Exception and the HHS Mandate | Journal of Catholic Legal Studies

Who Decides Conscience? RFRA’s Catch 22 | Brooklyn Journal of Law and Policy

Law Review: Religious Americans substantially excluded from the political process

Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory

A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobby and Conestoga Wood | UCLA School of Law

Setting the stage for the Loving of our time | Charleston L. Rev.

Constitutional Challenges to State Sponsored Prayers at Local Government Meetings | UC Davis Law Review

Neutrality Fatality as between Government Speech and Religion and Nonreligion | Brigham Young University Law Review

    This Comment first proposes that Establishment Clause neutrality should not apply to governmental endorsements of religion in general, meaning it does not mandate absolute neutrality. This approach would be almost impossible for the government to maintain for various reasons explained below, and the government should be held to a more manageable standard, which would require it not to prefer specific religious sects over one another. Where a governmental message endorses belief generally but not a particular religion, the Establishment Clause is not violated.


  • Posted: 02/24/2014
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  • Category: Religious Liberty
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  • Source: ssrn.com

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The High Courts in Malaysia and Unilateral Conversion of a Child to Islam by One Parent | Australian Journal of Asian Law

    This article examines the recent, groundbreaking decision of the Ipoh High Court in Perak in the case of Indira Gandhi concerning the unilateral conversion of children by one parent without the consent of the other. On 25 July 2013, Judicial Commissioner Lee Swee Seng may have started a new approach towards the issue of unilateral conversion of children by one spouse. For the first time, a Malaysian High Court quashed conversions of children to Islam by one parent and ruled that both parents must consent to the conversion of their children.


  • Posted: 02/24/2014
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  • Category: Global: Religious Liberty
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  • Source: ssrn.com

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A Christian Vision of Freedom and Democracy: Neutrality as an Obstacle to Freedom

    Jordan, Karen, A Christian Vision of Freedom and Democracy: Neutrality as an Obstacle to Freedom (February 7, 2014). Available at SSRN: http://ssrn.com/abstract=2392425 or http://dx.doi.org/10.2139/ssrn.2392425 This article presents the underlying vision for the argument that principles of liberal neutrality pose a …


  • Posted: 02/17/2014
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  • Category: Religious Liberty
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  • Source: ssrn.com

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Kermit Gosnell and Uncle Tom’s Cabin | Michael Stokes Paulsen

Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion

Legal Pluralism in Canadian Religious Freedom Litigation | Queen’s Law Journal

Has the IRS Legalized Polygamy? | North Carolina Law Review

Same-Sex Divorce | California Law Review

Public Morals and the ECHR | University of Leicester School of Law

The Uneasy Relationship of Hobby Lobby, Conestoga Wood, the Affordable Care Act and the Corporate Person | St. Louis University Journal of Health Law & Policy

Religious Liberty: Between Strategy and Telos | Review of Faith in International Affairs

Rethinking the “Religious Question” Doctrine | Pepperdine Law Review

Intellectual diversity in the legal academy

Why Corporations Are Not Entitled to Religious Exemptions | American Constitution Society Issue Brief

Untangling the Debate on Sharia Councils and Women’s Rights in the United Kingdom | Journal of Religion and Society

The origins of originalism | Ilya Somin

    Ilya Somin at The Volokh Conspiracy: “Jack is right that the emergence of originalism as a “self-conscious” theory of constitutional interpretation is relatively recent. The same can be said of living constitutionalism, which did not emerge as a distinct, self-conscious school of thought until the early 20th century or even later (depending on how you define the movement). But it is also important to recognize that the idea that judicial interpretations of the Constitution should be guided by the way the document was understood at the time of ratification is not of recent origin.”


  • Posted: 01/22/2014
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  • Category: Bench & Bar
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  • Source: www.washingtonpost.com

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Why are Americans Originalist? | Jack M. Balkin

Interstate Recognition of Same Sex “Marriage” After Windsor

University of Chicago Law Review Symposium on the Work of Judge Robert Bork

Just Another Brick in the Wall: The Establishment Clause as a Heckler’s Veto | Richard F. Duncan at Tex. Rev. of L. & Pol.

From Romer v. Evans to United States v. Windsor: Law as a Vehicle for Moral Disapproval in Amendment 2 and the Defense of Marriage Act

‘Amorphous Federalism’ and the Supreme Court’s Marriage Cases | David Cruz at Loyola L. Rev.

Corporate Free Exercise: A Survey of Supreme Court Cases Applied to a Novel Question | Regent J. L. & Pub. Pol’y

Two New Essays on Post-Windsor Choice-of-Law Questions

RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion

Windsor and the Problem with Rights of Recognition

Does Windsor Require States to Recognize Out-of-State Same-Sex Marriages?

‘The Word Person…Includes Corporations’: Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations

Undermining Christian Legal Society v. Martinez

Using Malpractice Laws to Sabotage Roe v. Wade | Alex Stein at Harvard Bill of Health

The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content

Is Secularism Neutral?

Steve Sanders on The Obligation to Recognize Out-of-State Marriages

Progressive Arguments for Religious Organizational Freedom: Reflections on the HHS Mandate | Thomas Berg at SSRN

Religious Liberty and the Culture Wars | Douglas Laycock at SSRN

3rd Circuit: Family business can’t challenge contraception mandate on religious grounds

Church Autonomy Reconceived: The Logic and Limits of Hosanna-Tabor | Christiopher Lund at Nortwestern L. Rev. via SSRN

Publication Of A Study On “abortion And The European Convention On Human Rights”

The ‘Federal Law of Marriage’: Deference, Deviation, and DOMA

A Visual Guide to United States v. Windsor: Doctrinal Origins of Justice Kennedy’s Majority Opinion

Contraception and the Birth of Corporate Conscience

How to Read a Legal Opinion: A Guide for New Law Students | Orin Kerr at GWU via SSRN

“Religiosity and Same-Sex Marriage in the United States and Europe” | SSRN

Freedom of Conscience as Religious and Moral Freedom | Michael J. Perry at SSRN

Religious Freedom Claims and Defenses Under State Constitutions | Paul Benjamin Linton at SSRN

Because the Bible Says So: The Impact of Roman Catholic Doctrines on LGBT Rights

What’s Religion Got To Do With It? Virtually Nothing: Hosanna-Tabor and the Unbridled Power of the Ministerial Exemption

    Maarsha B. Freeman, What’s Religion Got To Do With It? Virtually Nothing: Hosanna-Tabor and the Unbridled Power of the Ministerial Exemption, [Abstract], 16 University of Pennsylvania Journal of Law & Social Change 133-149 (2013).

    The United States Supreme Court recently ruled against a high school teacher who had claimed discrimination under the Americans with Disabilities Act (ADA) after being fired from her lay position at a church-run high school. 2 While the case ostensibly revolved around her claim for reasonable accommodation for a medical condition, 3 the decision was based not on whether such an accommodation was both available and reasonable under the Act, but on whether the school had to provide one even if it were, holding that the Act exempted the school from such requirements merely because of its religious status. 4 . . .


  • Posted: 06/10/2013
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  • Category: Religious Liberty

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No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom | Helen M. Alvare at Villanova L. Rev.

“Assessing the Case Against Gay Marriage” | Ilya Somin at Volokh Conspiracy

Why Secular-Purpose Limits Should Be Narrow, and “Why Religion Is Special (Enough)”

Should the Ministerial Exception Apply to Functions, Not Persons? Jed Glickstein at Yale L.J.

Nonprofits are Not Alike: The Role of Catholic and Protestant Affiliation

Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause

    Esbeck, Carl H., Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause (May 9, 2013). 7 Charleston L. Rev. no. 1 ___ (forthcoming 2013); University of Missouri School of Law Legal Studies Research Paper No. 2013-11. Available at SSRN: http://ssrn.com/abstract=2262965


  • Posted: 05/13/2013
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  • Category: Religious Liberty

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The Case for Full Restitution for Child Pornography Victims

Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education | Aaron J. Saiger at Fordham Law

In Defense of Citizens United | Michael McConnell at Yale L.J. via SSRN