Alliance Defending Freedom: It’s days away: The Supreme Court’s marriage decision is expected to come down on June 29.
Durham, W. Cole and Smith, Robert Theron and Duncan, William C., A Comparative Analysis of Laws Pertaining to Same-Sex Unions (March 14, 2014). Available at SSRN: http://ssrn.com/abstract=2409282
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.
Silence is Golden: Moments of Silence, Legislative Prayers, and the Establishment Clause | Northwestern University Law Review
Segall, Eric, Silence is Golden: Moments of Silence, Legislative Prayers, and the Establishment Clause (2014). Northwestern University Law Review Online, Vol. 108, 2014. Available at SSRN: http://ssrn.com/abstract=2407683
Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others | The Modern Law Review
Wintemute, Robert, Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others (March 2014). The Modern Law Review, Vol. 77, Issue 2, pp. 223-253, 2014. Available at SSRN: http://ssrn.com/abstract=2404151 or http://dx.doi.org/10.1111/1468-2230.12064
McCrea, Ronan, European Law and the Prohibition of the Veil (March 4, 2011). Available at SSRN: http://ssrn.com/abstract=2404426
Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey | World Politics
Lerner, Hanna, Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey (October 1, 2013). World Politics, Volume 65, Issue 4 (October 2013), pp. 609-655 . Available at SSRN: http://ssrn.com/abstract=2404925
Smith’s Individualized Governmental Assessment Exception and the HHS Mandate | Journal of Catholic Legal Studies
McMahon, Mary E., May I Be Excused? Smith’s Individualized Governmental Assessment Exception and the HHS Mandate (March 1, 2014). Journal of Catholic Legal Studies, 2014. Available at SSRN: http://ssrn.com/abstract=2403950 or http://dx.doi.org/10.2139/ssrn.2403950
Smith, Priscilla J., Who Decides Conscience? RFRA’s Catch 22 (February 26, 2014). Brooklyn Journal of Law and Policy, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2402061
DeGirolami, Marc O. and Walsh, Kevin C., Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory (February 21, 2014). Available at SSRN: http://ssrn.com/abstract=2399487 or http://dx.doi.org/10.2139/ssrn.2399487
Oleske, James M., Obamacare, RFRA, and the Perils of Legislative History (February 20, 2014). 67 Vanderbilt Law Review En Banc (2014 Forthcoming). Available at SSRN: http://ssrn.com/abstract=2398763
A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobby and Conestoga Wood | UCLA School of Law
Bainbridge, Stephen M., A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobby and Conestoga Wood (February 21, 2014). UCLA School of Law, Law-Econ Research Paper No. 14-03. Available at SSRN: http://ssrn.com/abstract=2399638
Crooks , Daniel John, Toward ‘Liberty’: How the Marriage of Substantive Due Process and Equal Protection in Lawrence and Windsor Sets the Stage for the Inevitable Loving of Our Time (February 1, 2014). 8 Charleston L. Rev. 223 (2014). Available at SSRN: http://ssrn.com/abstract=2399241
Constitutional Challenges to State Sponsored Prayers at Local Government Meetings | UC Davis Law Review
Brownstein, Alan E., Town of Greece v. Galloway: Constitutional Challenges to State Sponsored Prayers at Local Government Meetings (February 10, 2014). 47 UC Davis Law Review, (2014 Forthcoming) ; UC Davis Legal Studies Research Paper No. 365. Available at SSRN: http://ssrn.com/abstract=2393550
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.
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.
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 …
Paulsen, Michael Stokes, Kermit Gosnell and Uncle Tom’s Cabin. St. Thomas Journal of Law & Public Policy, 2014, Forthcoming; U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-10. Available at SSRN: http://ssrn.com/abstract=2395004
“This Article asks what the U.S. Supreme Court’s opinion in United States v. Windsor stands for, and finds that it exemplifies doctrine in motion during a time of social and legal change. According to Chief Justice Roberts, the Court invalidated Section 3 of the Defense of Marriage Act (DOMA) because it inferred animus from Congress’s extraordinary intrusion into an area central to state domestic relations law.”
Kislowicz, Howard, Sacred Laws in Earthly Courts: Legal Pluralism in Canadian Religious Freedom Litigation (January 31, 2014). Queen’s Law Journal, Vol. 39, No. 1, 2013. Available at SSRN: http://ssrn.com/abstract=2388660
Infanti, Anthony C., Big (Gay) Love: Has the IRS Legalized Polygamy? (February 5, 2014). North Carolina Law Review Addendum, 2014, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2014-07. Available at SSRN: http://ssrn.com/abstract=2391395
“In this article, Professor Tracy Thomas examines the various ways in which states address same-sex divorce, and highlights the different reasoning that courts have employed to allow same-sex couples to dissolve their unions, even in states that do not recognize same-sex marriage.”
Perrone, Roberto, Public Morals and the ECHR (January 20, 2014). University of Leicester School of Law Research Paper No. 14-02. Available at SSRN: http://ssrn.com/abstract=2382086
The Uneasy Relationship of Hobby Lobby, Conestoga Wood, the Affordable Care Act and the Corporate Person | St. Louis University Journal of Health Law & Policy
Harkins, Malcolm J., The Uneasy Relationship of Hobby Lobby, Conestoga Wood, the Affordable Care Act and the Corporate Person: How a Historical Myth Woven Out of Whole Cloth Has Bedeviled the Legal System for Almost 150 Years (January 29, 2014). St. Louis University Journal of Health Law & Policy. Available at SSRN: http://ssrn.com/abstract=2387703
Kalanges, Kristine, Religious Liberty: Between Strategy and Telos (2013). 11 Review of Faith in International Affairs 28-31 (Winter 2013); Notre Dame Legal Studies Paper No. 1404. Available at SSRN: http://ssrn.com/abstract=2384664
The Volokh Conspiracy: “I am pleased to report that the Harvard Journal of Law & Public Policy has just published the remarks of several participants, including Michael Stokes Paulsen, George W. Dent Jr., Paul Campos and Sherif Girgis.”
Why Corporations Are Not Entitled to Religious Exemptions | American Constitution Society Issue Brief
Corbin, Caroline Mala, Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions (January 23, 2014). American Constitution Society Issue Brief, January 2014. Available at SSRN: http://ssrn.com/abstract=2384136
Untangling the Debate on Sharia Councils and Women’s Rights in the United Kingdom | Journal of Religion and Society
Zee, Machteld, Five Options for the Relationship between the State and Sharia Councils: Untangling the Debate on Sharia Councils and Women’s Rights in the United Kingdom (January 15, 2014). Journal of Religion and Society, Volume 16 (2014). Available at SSRN: http://ssrn.com/abstract=2380066
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.”
“The self-conscious invocation of originalism as a general theory of interpretation is relatively recent; it is a response to constitutional modernity, in which Americans found themselves increasingly distanced from the past and sought to justify political reforms.”
Will Baud at the Volokh Conspiracy: The newest issue of the NYU Journal of Law and Liberty is available online. It contains their special Supreme Court Review-Preview, which in turn contains my short article, Interstate Recognition of Same-Sex Marriage after Windsor, which I’ve mentioned here before. It begins . . .
Ilya Somin at Volokh Conspiracy: The University of Chicago Law Review recently posted its online symposium on the work of Judge Robert Bork, who passed away last year. The symposium includes essays by several prominent legal scholars, including Steven Calabresi, Bradford Clark, Richard Epstein, John Harrison, Kurt Lash, John McGinnis, and John Yoo. My own contribution, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” is available here.
Just Another Brick in the Wall: The Establishment Clause as a Heckler’s Veto | Richard F. Duncan at Tex. Rev. of L. & Pol.
Duncan, Richard F., Just Another Brick in the Wall: The Establishment Clause as a Heckler’s Veto (November 29, 2013). Texas Review of Law & Politics, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2361504
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
McClain, Linda C., 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 (December 4, 2013). Duke Journal of Gender Law & Policy, Vol. 20, p. 351 (2013); Boston Univ. School of Law, Public Law Research Paper No. 13-51. Available at SSRN: http://ssrn.com/abstract=2363463
Cruz, David B., ‘Amorphous Federalism’ and the Supreme Court’s Marriage Cases (November 8, 2013). Loyola Law Review, Supreme Court Issue, Forthcoming; USC Legal Studies Research Papers Series No. 13-18. Available at SSRN: http://ssrn.com/abstract=2352038
Corporate Free Exercise: A Survey of Supreme Court Cases Applied to a Novel Question | Regent J. L. & Pub. Pol’y
Kartchner, Andrew B., Corporate Free Exercise: A Survey of Supreme Court Cases Applied to a Novel Question (May 1, 2013). Regent J. L. & Pub. Pol’y, Volume 6, Issue 2 (2014), Forthcoming. Available at SSRN: http://ssrn.com/abstract=2338538
Still in the wake of the Citizens United decision, the next question of corporate rights is heading to the Supreme Court soon: corporate free exercise of religion. A survey of Supreme Court cases reveals that affording constitutional rights to corporations is actually remarkably common. The rationale in such cases can illuminate the discussion brewing in the lower courts — and sure to find its way to the Supreme Court soon — as to whether corporations have First Amendment religious rights.
Volokh Conspiracy: The Northwestern Law Review Colloquy is running an interesting-so-far series on United States v. Windsor. The first two parts of the series are up, and both discuss post-DOMA choice of law issues.
Michael Perry at Mirror of Justice: That’s the title of a very interesting, thoughtful, and provocative piece recently posted to SSRN by BYU law prof Fred Gedicks and co-author Rebecca Van Tassel. Downloadable here. The abstract . . .
Naomi Rao at Volokh Conspiracy: Commentators on Windsor v. United States, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act, have puzzled about whether the Court’s opinion relies on a federalism rationale or instead some broader rationale about rights for same-sex couples. In The Trouble with Dignity and Rights of Recognition, recently published in the Virginia Law Review Online, I argue that one of the problematic aspects of the decision is that its use of dignity creates an unprecedented right of recognition. Because the decision ultimately turns neither on federalism nor on individual rights, it exists outside of our constitutional tradition.
Will Baude at the Volokh Conspiracy: I’ve blogged before about Obergefell v. Kasich, the first post-Windsor decision to raise the very interesting question of whether states are required to recognize out-of-state same-sex marriages. I’ve now written a short essay on that question, which is forthcoming in the NYU Journal of Law and Liberty’s inaugural Supreme Court Review-Preview. Here is the introduction . . .
‘The Word Person…Includes Corporations’: Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations
Christiansen, Jeremy M., ‘The Word Person…Includes Corporations’: Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations (August 30, 2013). Utah Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2318499
Alex Stein at Harvard Bill of Health: Admittedly, those doctrines are rather thin (see Alex Stein, Constitutional Evidence Law, 61 Vand. L. Rev. 65, 78-79 (2008)), but a thin doctrine is still more promising than the thick Maher-McRae jurisprudence that gives the Act’s challengers no hope.
Corley, Pamela, Collins, Paul M. and Hamner, Jesse, The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content (2013). APSA 2013 Annual Meeting Paper. Available at SSRN: http://ssrn.com/abstract=2300505
This article argues that secularism is not neutral. Secularization is a process, the secular state is a structure, whereas secularism is a political philosophy. Secularism takes two main forms: first, a “benevolent” secularism that endeavours to treat all religious and nonreligious belief systems even-handedly, and, second, a “hostile” kind that privileges unbelief and excludes religion from the public sphere.
Will Baude at the Volokh Conspiracy: IU Law Professor Steve Sanders has a post on the ACS Blog discussing Obergefell v. Kasich, the S.D. Ohio decision I blogged about earlier that required Ohio to recognize a marriage from Maryland — a marriage performed on a jet that had touched down in Maryland for the ceremony . . . but those who are interested in the issue should read Sanders’s article in the Michigan Law Review making this argument in greater detail.
Progressive Arguments for Religious Organizational Freedom: Reflections on the HHS Mandate | Thomas Berg at SSRN
Berg, Thomas C., Progressive Arguments for Religious Organizational Freedom: Reflections on the HHS Mandate (May 22, 2013). Journal of Contemporary Legal Issues, Forthcoming; U of St. Thomas (Minnesota) Legal Studies Research Paper No. 13-20. Available at SSRN: http://ssrn.com/abstract=2268824 or http://dx.doi.org/10.2139/ssrn.2268824
Religious liberty has become much more controversial in recent years. A principal reason is deep disagreements over sexual morality. On abortion, gay rights, same-sex marriage, and contraception, conservative religious leaders condemn as grave evils what other Americans view as fundamental human rights.
SCOTUS Blog: Creating a direct split among federal appeals courts and thus enhancing chances that the Supreme Court will take on the issue, the Third Circuit Court ruled on Friday that a family-owned, profit-making business cannot challenge on religious grounds the new federal health care law’s mandate of birth control health insurance for its workers.
Church Autonomy Reconceived: The Logic and Limits of Hosanna-Tabor | Christiopher Lund at Nortwestern L. Rev. via SSRN
Lund, Christopher C., Church Autonomy Reconceived: The Logic and Limits of Hosanna-Tabor (July 16, 2013). Northwestern University Law Review, Vol. 108, No. 2, 2014 Forthcoming. Available at SSRN: http://ssrn.com/abstract=2294766
Turtle Bay and Beyond: On July 17th 2013, I published a study on “Abortion and the European Convention on Human Rights”, in the Irish Journal of Legal Studies (available on line here). The purpose of this study is to present in an objective, complete and coherent manner the status of abortion under the European Convention on Human Rights.
Carter, W. Burlette, The ‘Federal Law of Marriage’: Deference, Deviation, and DOMA (2013). American University Journal of Gender, Social Policy & the Law, Forthcoming; GWU Legal Studies Research Paper No. 2013-79; GWU Law School Public Law Research Paper No. 2013-79. …
Sepper, Elizabeth, Contraception and the Birth of Corporate Conscience (July 8, 2013). American University Journal of Gender, Social Policy & the Law, Forthcoming; Washington University in St. Louis Legal Studies Research Paper, 13-07-01. Available at SSRN: http://ssrn.com/abstract=2289383
Kerr, Orin S., How to Read a Legal Opinion: A Guide for New Law Students. The GREEN BAG, An Entertaining Journal of Law, Vol 11, No. 1, p. 51, Autumn 2007; GWU Legal Studies Research Paper No. 414; GWU Law School Public Law Research Paper No. 414. Available at SSRN: http://ssrn.com/abstract=1160925
Oppenheimer, David B., Oliveira, Alvaro and Blumenthal, Aaron, Religiosity and Same-Sex Marriage in the United States and Europe (June 29, 2013). Available at SSRN: http://ssrn.com/abstract=2287286 or http://dx.doi.org/10.2139/ssrn.2287286
Perry, Michael J., Freedom of Conscience as Religious and Moral Freedom (July 2, 2013). Journal of Law and Religion, Forthcoming; Emory Legal Studies Research Paper No. 13-242. Available at SSRN: http://ssrn.com/abstract=2287436
Golebiewski, Daniel, Because the Bible Says So: The Impact of Roman Catholic Doctrines on LGBT Rights (May 1, 2013). Available at SSRN: http://ssrn.com/abstract=2272858 or http://dx.doi.org/10.2139/ssrn.2272858 Having a long-standing tradition of directly or indirect affecting policy-making in governments across the globe, …
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 . . .
No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom | Helen M. Alvare at Villanova L. Rev.
Alvare, Helen M., No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom (May 31, 2013). Villanova Law Review, Vol. 58, No. 3, pp. 379-436, 2013; George Mason Law & Economics Research Paper No. 13-35. Available at SSRN: http://ssrn.com/abstract=2272821
Ilya Somin at Volokh Conspiracy: Northwestern University Law Professor Andrew Koppelman recently posted an excellent article assessing recent arguments against gay marriage put forward by leading anti-gay marriage legal scholars and political philosophers. Here is the abstract . . .
Thomas Berg at Mirror of Justice: Two key claims of Micah’s article were that (1) you can’t support distinctive accommodations for religious freedom unless you also support meaningful distinctive limits on religion serving as the rationale/purpose for laws and (2) ultimately there is no good reason for treating religion differently from deeply held, comprehensive nonreligious moral beliefs.
Jed Glickstein, Should the Ministerial Exception Apply to Functions, Not Persons?, 122 Yale L.J. 1964 (2013)
This Note accordingly suggests an alternative framework that more closely tracks the functional considerations that underlie the ministerial exception. In short, it argues that a revised exception—one that applies to ministerial functions, not ministerial persons—better strikes the balance between antidiscrimination values and religious liberty that the First Amendment requires.
Filistrucchi, Lapo and Prufer, Jens, Nonprofits are Not Alike: The Role of Catholic and Protestant Affiliation (April 26, 2013). TILEC Discussion Paper No. 2013-013. Available at SSRN: http://ssrn.com/abstract=2259051 or http://dx.doi.org/10.2139/ssrn.2259051
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
Cassell, Paul G., Marsh, James and Christiansen, Jeremy M., The Case for Full Restitution for Child Pornography Victims (2013). George Washington Law Review, Forthcoming; University of Utah College of Law Research Paper. Available at SSRN: http://ssrn.com/abstract=2260479
Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education | Aaron J. Saiger at Fordham Law
Saiger, Aaron J., Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education (May 1, 2013). Cardozo Law Review, Vol. 34, No. 1163, 2013; Fordham Law Legal Studies Research Paper No. 2259283. Available at SSRN: http://ssrn.com/abstract=2259283