Free Exercise of Religion

This article analyzes conservative Supreme Court justices' recent use of history and tradition in First Amendment religious liberty cases. It argues that these justices have failed to articulate a persuasive rationale as to why exactly the Establishment Clause must be interpreted by reference to historical practices and understandings and that they have failed to adequately show that history supports their "no-coercion" construction of what constitutes a prohibited establishment. Concerning the Free Exercise Clause, the court's conservatives have dismissed history by disregarding historical practices that do not conform to their approach to the text. The court's use, misuse, and nonuse of history cannot help but give the impression that policy preferences-more than history or the actual original understanding of the First Amendment-have determined recent church-state decisions.

Wright's Free Church Free State is a cautionary book on the West's strenuous relationship between church and state. What happens when the church wields too much power or when the state controls the church? His message aims to give a "positive Baptist vision which implies a new conception of society by means of a particular understanding of the church." (p xx). He talks about the concept of sacred and absolute power between these two structures of religion and the public and how the contemporary church, in all its imperfection, can seek to

The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects the religious rights of incarcerated individuals by mandating that an institution must have a compelling state interest and use the least restrictive means to achieve that interest. However, RLUIPA falls short in securing the rights of incarcerated individuals established in the First Amendment's Free Exercise Clause due to a broad application of these requirements, over-reliance on the deference of prison officials, and inconsistent interpretations of federal courts. Further, the application of due deference has diluted the strict scrutiny mandated by RLUIPA. As a result, the jurisprudence surrounding RLUIPA lacks clarity and courts rely on the guidance of prison officials instead of the sincere convictions of incarcerated individuals and the specific merits of their requested accommodations. Under its current framework, courts issue contradictory interpretations of RLUIPA, prisons incorrectly apply its provisions, and incarcerated individuals face undue obstacles in exercising their religion. Minority faiths face particular detriment. For RLUIPA to serve its intended purpose, strict scrutiny must apply with due deference only being granted in areas in which prison officials have expertise and not in interpreting the prerogatives of a faith.

Cases (complete record) 25 (Belvedere Press 1925) [hereinafter "Oregon School Cases"]. 8 Cantwell v. Connecticut, 310 U.S. 296 (1940). The Society of Sisters did invoke a similar clause in Section 3 of Article I of the Oregon Constitution: "No law shall in any case whatever control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience." 9 Oregon School Cases, supra note 7, at 702.

This article explores the free exercise of religion under the United States and Japanese Constitutions. The free exercise clause of the First Amendment of the United States Constitution and Article 20 of the Japanese Constitution are the key provisions. The article focuses on the question of mandatory exemptions to laws generally applicable laws. In other words, must government give exemptions based on religion to laws that apply the same to everyone, but create a burden on individuals with particular religious practices. The United States Supreme Court said the answer is "no" in Employment Division v. Smith. The Japanese Supreme Court suggested the answer is "yes" in Matsumodo v. Kobayashi. This article suggests that the Japanese Supreme Court better addressed what is necessary for the free exercise of religion, and provided better suggestions on how to achieve it than the United States Supreme Court.

refusing-service-gay-couple; see also Ingersoll v. Arlene's Flowers, ACLU (Oct. 11, 2013), https://www.aclu.org/lgbt-rights/ingersoll-v-arlenes-flowers. 6 See also Fraser, supra note 2, at 14 (discussing the "serious economic injustices" suffered by gays and lesbians). 7 Dorning, supra note 3. 8 Valdes, supra note 5.

Although equality is a hallmark of American democracy, in the constitutional framework of the United States religious freedom has a special place as it is the “first freedom”. For many decades, the Supreme Court of the United States has recognized that both of the First Amendment’s religion clauses are vital to protecting religious freedom: the Establishment Clause, which protects against govern- mental endorsement of religion, and the Free Exercise Clause, which ensures the right to publicly express religious faith. In American society dominated by religious pluralism there are no simple solutions to the existing controversies regarding the relationship between religion clauses, which arrive to the Supreme Court’s docket. However, in the last few years a new course on religious freedom is being observed in its jurisprudence. Thanks to several recent landmark victories at the Supreme Court, the mistaken precedents stuck in the 1970s understanding of the Establishment Clause have been corrected. The aim of the contribution, anchored in the Supreme Court jurisprudence, is to reflect upon the impact of these changes on religious communities and individuals living out their faith. Should we then say that we are now witnessing an unprecedented comeback of religious freedom across the country? Can people of faith remain optimistic about the protection of their deeply and sincerely held beliefs? Finally, has the Supreme Court opened a new chapter of history?

Indian has recently emerged as one of the leading developing countries basically on strength its Constitutional protection to religious pluralism among its people. The paper focus how Indian civilization has played host to several migrant groups and communities from time to time and these groups as well as communities has been guaranteed fundamental rights in matters of religion. The religious pluralism has been fostered by various decisions of the Indian higher judiciary.

Hosanna-Tabor and Supreme Court Precedent 121 doctrine, which prohibits judicial inquiry into a wide range of questions relating to religious practice and belief. 4 Although a number of courts have adopted and applied the ministerial exception, both the constitutional basis for this principle and its scope are less than clear. 5 Through a close reading of the opinion of the United States Court of Appeals for the Sixth Circuit, this Essay suggests that the outcome in Hosanna-Tabor turns on an analysis of the ministerial exception within the broader context of a hands-off approach to religion. 6 Indeed, in an opinion written by Judge Richard Posner, the United States Court of Appeals for the Seventh Circuit drew an explicit connection between the two doctrines, referring to-[t]he ministerial exception, and the hands-off approach more generally. .. .‖ 7 Likewise, in looking at Hosanna-Tabor, this Essay aims to explore and relate the constitutional concerns underlying both the ministerial exception and the Supreme Court's hands-off approach. Specifically, this Essay argues that the Sixth Circuit opinion is inconsistent with Supreme Court precedent, running afoul of the Court's hands-off approach by relying on analysis of either the Free Exercise Clause, the Establishment Clause, or both, that requires judicial interpretation of religious doctrine. Therefore, the Essay concludes that the Supreme Court will have a number of options available for deciding Hosanna-Tabor. Most narrowly, the Court may limit its response to a review of the reasoning and ruling set forth in the Sixth Circuit opinion, deciding that because the Sixth Circuit's analysis contradicts Supreme Court precedent, the Sixth Circuit's holding should be reversed. Alternatively, widening the scope of review, the Supreme Court may use Hosanna-Tabor to address, for the first time, the broader issue of the ministerial exception, providing guidance and direction for deciding future employment disputes involving religious organizations. Yet, this Essay encourages the Court to take a more ambitious and more dramatic step, viewing Hosanna-Tabor as an opportunity to rethink the hands-off approach to questions of religious practice and belief. In the past, scholars and courts have encountered difficulty in attempting to 4

This paper will explore how the constitutions of the 50 states and Puerto Rico address issues of God, religion, bearing arms and the military. These documents are most often much longer than the Federal Constitution thereby providing a more sustained reflection on some of our nation's most cherished concepts and values. These constitutions are legal documents which are binding in their jurisdictions. State officials are bound to uphold these documents. Members of the National Guard (Army and Air) of every state take oaths to uphold these state constitutions as well as the Federal Constitution.

Understood as reasons and rationale given by courts in rendering their decisions (DiMatteo 2015; Gudowski 2015), justification is of great importance when resolving morally sensitive issues. In such cases, judges are tasked with finding solutions to fundamental conflicts of incommensurable constitutional principles, which are inherently open-ended, general and in need of interpretation. Constitutional courts rely on different models of constitutional review depending on a given legal system and culture. However, their overarching goal is to consider ways of resolving conflicts and their justifications arising from a clash between constitutionally protected rights and interests and other values deemed worthy of protection by legislatures. The question addressed in this paper is how a constitutional court can resolve conflicts and communicate motives behind its decision in morally sensitive issues and how evaluative language is instrumental in achieving this strategic goal. Two cases are compared in which judges resolve a conflict between freedom to exercise religion and the animal welfare. In Church of the Lukumi Babalu Aye v. City of Hialeah, the US Supreme Court addressed the constitutionality of animal sacrifice for religious purposes. In Poland, the Constitutional Tribunal in its decision (K52/13) ruled for the admissibility of ritual slaughter. Adopting the methodology of Corpus-Assisted Discourse Studies (CADS), this paper demonstrates that while the argumentation in the Polish decision is heavily axiological, with Polish judges using value-based language to engage in fundamental values and principles, the US Supreme Court judges avoid broad, abstract reasoning by resting the argumentation on low-level and medium-level principles (Sunstein 2018) translated into concrete rules and standards.

En junio de 2013, la Organizacion de Estados Americanos (en adelante, la “OEA”) adopto las Convenciones Interamericanas en Contra del Racismo, la Discriminacion Racial y Todas las Formas Relacionadas de Intolerancia (en adelante, “CCDI”)1. Entre otras cosas, estos nuevos instrumentos –que al tiempo de escribir estas lineas no han sido ratificados por ningun Estado de la region2– tendran el efecto de ampliar enormemente la extension de las llamadas categorias prohibidas de discriminacion mas alla de lo que hoy existe en los tratados vigentes que tocan la materia, ademas de crear un amplio rango de nuevas obligaciones y deberes para los Estados partes en el sentido de promover la igualdad y eliminar la discriminacion y la intolerancia.

She holds a joint appointment with the Department of Philosophy and the School of Law. She is known for her provocative and elegant exporations of law and philosophy. Several major themes emerge from her work, including the nature of promising, egalitarianism, the nature of freedom, and the necessity of accommodation. Her research on legal theory addresses issues in contracts, torts, family law, constitutional law, intellectual property and criminal law. At the law school, Shiffrin teaches Contracts, Constitutional Rights and Individual Autonomy, and seminars on the legal theory of contracts, distributive justice, and gender. She has taught in the UCLA Department of Philosophy since 1993, where her work focuses on ethics and political and legal philosophy. While at UC Berkeley, Professor Shiffrin received a medal as the university's most distinguished undergraduate. She studied at Oxford as a Marshall Scholar, specializing in political and moral philosophy. At Harvard, she was an editor of the Harvard Law Review.

Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible— and typically necessary—for adjudication ...

is a senior civil rights litigation strategist with Hill and Knowlton and an Adjunct Professor of Law at Northwestern University Law School. He graduated cur laude from the University of Minnesota Law School in 1991 and is a council member of the ABA's Section on Individual Rights. ** David Rosenberg is an Associate Professor of Law in Baruch College's Law Department. He graduated from Cornell Law School in 1991 and was the book review editor for the Cornell Law Review. The authors worked together as legal counsel for the Anti-Defamation League and participated in many of the cases discussed in this article. The authors would like to extend their gratitude to Sherri Drucker, a law student at Northwestern Law School, for the immeasurable contribution she made to this article. 1. 529 U.S. 598 (2000).

By the end of 1989, constitutional analysts felt secure in their understanding of the Free Exercise Clause. In simplest terms, its evolved meaning was that religious practices were not to be excessively burdened, save for a state interest of compelling force. Against this presumed background a new case was argued, one which seemed at first to be merely a new but minor elaboration on the well-settled unemployment compensation cases, which began with Sherbert v. Verner. 2 In that case, Adell Sherbert, a Seventh-Day Adventist, refused a new work schedule which required her to work on Saturday, her Sabbath. Because no compromise seemed possible, she left her job and applied for unemployment compensation. These benefits were initially denied to her "on the ground that the state supplied unemployment benefits for people for whom work was unavailable, not for people who were unavailable for work." The Supreme Court overturned this decision, however, reasoning that to judge whether a state action infringed on the Free Exercise guarantees, the court must ask (a) has religious practice been burdened; (b) did the

The purpose of this research paper is to take into consideration various aspects of Freedom to profess or practice Relegion and various Restrictions associated with it. The crucial part which is to be examined is Article 25 which is having many elements. The Indian Constitution stipulates that all the persons and religious organisations in India have the right to freedom of religion and the provisions of these articles are not absolute. State can take appropriate measures when it comes to public order, health , and morality. This enables the state to take measures regarding welfare and social reforms associated with the religious practices.The constitution's authors undoubtedly strengthened the nation 's secular foundation by recognising the right to freedom of Relegion as a fundamental right. Since religious belief is a matter between a person and God , it cannot be the subject of state intervention , according to the constitution. India became a truly secular state as a result of this precise strategy. Therefore This article shields individual religions or groups by adding religious rights as fundamental rights and these all things will be discussed in detail in this research paper .

Although the first amendment of the Constitution prohibits the government from establishing religion, Judge Adams has suggested here that under some circumstances the government may "accommodate" certain religious practices. Judge Adams's treatment of the theory of accommodation, like his judicial opinions, is informed, thoughtful, and scholarly. Indeed, Judge Adams has made many cogent points today. Certainly, there is much to be said for the claims of the conscientious objectors in Gillette v. United States, 1 of the Native Americans in Bowen v. Roy, 2 and of the Orthodox Jews in Braunfeld v. Brown, 3 all of which were noted and discussed by Judge Adams. I would, however, offer a few words of caution about government accommodation of religious practices, especially because accommodation is difficult

David Little has pioneered the study of religion, human rights, and religious freedom during fifty-five years of distinguished scholarly work at Yale, Harvard, Virginia, Georgetown, and the United States Institute of Peace. Starting with his first major book,Religion, Order, and Law: A Study in Pre-Revolutionary England, he has traced cardinal principles like freedom of conscience and free exercise of religion from their earliest formulations in Stoic philosophy and Roman law, through the writings of Augustine, Aquinas, the medieval canonists and scholastics, and their many early modern heirs. Among the latter, he has explored most deeply the contributions of Protestants to the Western understanding of human rights and religious freedom, with special focus on John Calvin, John Locke, Roger Williams, and Reinhold Niebuhr, all of whose ideas he connects to each other and to the broader Western tradition in fresh and inventive ways. He has written astutely on the vexed questions arisin...

Massachusetts was the last of the original 13 American states to disestablish religion, having been founded in the early seventeenth century as a bastion of Puritanism. The Massachusetts Constitution of 1780 moved part way toward disestablishment by guaranteeing freedom and equality to all peaceable private religions but also retaining what leading constitutional draftsman John Adams called a "mild and equitable establishment of religion." This consisted of (1) a ceremonial establishment, reflected in public religious language, symbols, rituals, and oaths supported by the state; (2) a moral establishment, reflected in the virtues and values to be taught in state schools and universities and exemplified by elected officials and other public figures; and (3) an institutional establishment, reflected in mandatory tithe payments, required Sunday worship, and other supports for Congregational churches. Adams advocated this balance of a tempered religious freedom and a slender religious establishment as the best political compromise between hardline establishmentarians and radical separationists in the state. But this view also reflected Adams' own political and religious philosophy that too little religious freedom is a recipe for hypocrisy and impiety, while too much religious freedom is an invitation to depravity and license. Too firm a religious establishment breeds coercion and corruption, while too little religious establishment allows secular prejudices to become constitutional prerogatives. Somewhere between these extremes, Adams believed, a society must find its balance. This was a strikingly different view of religious freedom than the strict separation of church and state views advocated by Adams' long time friendly rival, Thomas Jefferson. The balance between freedom and establishment that Adams advocated was reflected in the 1780 Massachusetts constitution and was defended in a series of famous state cases authored by Chief Justice Theophilus Parsons. But in 1833, Massachusetts amended its constitution to outlaw the institutional establishment of religion, notably the state tithing system, even though the state retained its ceremonial and moral establishments.

I. 7. 42 U.S.C. § 300gg-3(a) (Supp. V 2012) ("A group health plan and a health insurance issuer offering group or individual health insurance coverage may not impose any preexisting condition exclusion with respect to such plan or coverage."). 8. 42 U.S.C. § 300gg-14(a) ("A group health plan and a health insurance issuer offering group or individual health insurance coverage that provides dependent coverage of children shall continue to make such coverage available for an adult child until the child turns 26 years of age."). 9. 42 U.S.C. § 300gg-l 1 ("A group health plan and a health insurance issuer offering group or individual health insurance coverage may not establish-(A) lifetime limits on the dollar value of benefits for any participant or beneficiary; or (B)... annual limits on the dollar value of benefits for any participant or beneficiary."). 10. 42 U.S.C. § 300gg-13(a)(4). 11. The IOM describes itself in the following way: The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government .... INST. OF MED.

One 1858 California decision (Ex parte Newman, 9 Cal. 502) held a Sunday closing law unconstitutional, but the same court overruled that decision three years later in Ex parte Andrews, 18 Cal. 678 (1861). With that exception, such laws have been uniformly upheld. 3 341 U.S. 907 (1951). 4 When used in this article, Sabbatarian means one who observes Saturday as a day of rest out of religious conviction.

Pursuant to the Religious Freedom Restoration Act (RFRA), government cannot “substantially burden” religious conduct — unless, of course, the substantial burden is the least restrictive means to achieve a compelling government interest. But what constitutes a substantial burden? The importance of this inquiry has been front and center in both litigation over the application of RFRA to the contraception mandate as well as in application of anti-discrimination laws to same-sex couples seeking services from public accommodations. Many courts and scholars have argued that claiming RFRA protections for complicity in the conduct of others — whether it be triggering contraception insurance coverage or providing professional services at a same-sex wedding — must fail because such complicity claims cannot satisfy RFRA’s requirement that the burden in question be substantial. Indeed, to claim otherwise would, on this view, be tantamount to writing the word “substantial” out of the statute. Ot...

is a professor of law and urban studies at Cleveland State University's Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs. He is a reporter for Planning & Environmental Law, a coauthor of Federal Land Use Law & Litigation and a coauthor and coeditor of Land Use & the Constitution.

This Article explores John Locke’s theory of religious liberty, which deeply influenced the adoption of the First Amendment and the first state bills of rights. Locke sharply criticized the religious and political order of Restoration England—a regime in which the king claimed to hold absolute power by divine right and in which individuals were required by law to conform to the established church. In opposition to this regime, Locke developed a powerful theory of human beings as rational creatures who were entitled to think for themselves, to direct their own actions, and to pursue their own happiness within the bounds of the law of nature. He then used this view to give a new account of political and religious life. To promote their happiness in this world, rational individuals would agree to give up some of their natural freedom and to enter into a civil society for the protection of their natural rights or “civil interests” of life, liberty, and property. By contrast, Locke argue...

Responding to several new histories of church and state in America, this Article warns against the emerging view that separation of church and state is a distinctly American and relatively modern invention that has been used principally to harm religion and religious freedom. The Article traces the historical roots and routes of the principle of separation of church and state in biblical, patristic, Catholic, Protestant, and Enlightenment sources. It then shows how the eighteenth-century American founders used this principle to press five religious liberty concerns: protection of the state from the church; protection of the church from the state; protection of liberty of conscience from both church and state; protection of the new states from the federal government in their treatment of religion; and protection of citizens from unwelcome support and participation in religion. Finally, the article analyses the uses and misuses of this principle in the later history of American law.

The seventeenth-century English Revolution was pulsing with new democratic ideas of civil rights, marital freedom, freedom of speech and press, religious liberty, separation of church-state, and disestablishment of religion. The English philosopher and poet, John Milton was among the most radical and articulate advocate of these ideas, which he set out in hundreds of pages of brilliant and trenchant prose. This Article offers a full account of Milton's reformist agenda and uncovers some of the genesis and genius of his ideas in earlier Christian and classical traditions. It also documents the enduring significance of Milton's ideas for later Anglo-American writers like John Locke, and later common law and constitutional reforms on both sides of the Atlantic.

Our uncertain response to the fall of communist power in Europe shows that, first, we had no plan to cope with its consequences and, second, that we did not understand it. But in the largest sense the moral is clear enough: Soviet communism was a huge experiment in total collectivist planning to build a godless Eden. It failed utterly. Totalitarian movements offer a hard-nosed bargain: Exchange liberty for security and economic progress People gave up their freedom for a mess of pottage that was never delivered. What are Some of the Lessons? 1) Zealots with plans to make over the world by fiat are a deadly menace: e.g., Robespierre, Pol Pot, Saddam Hussein 2) Concentrated power that is devoid of checks or limits is dangerous because it leaves nothing to impede the grinding power of the ruling faction other than its own discretion or internal struggles 3) The end of the Soviet Union shows that running a complex society by command just doesn't work. Economies set up in this fashion provide no incentives to encourage work and output. These Lessons Have Been Ignored The total collapse of the most elaborate scheme of collectivism ever known has been treated almost as an incidental matter. Consequently, we ignore the implications of the vast authority wielded by our own central government. "No day elapses without some new demand for bigger subsidies and steeper taxes, expanded schemes of regulation, investment directed by official foresight, and the like." For example: the national health care proposal and price controls. Henry Hazlitt's Economics in One Lesson (1946), which was influenced by Bastiat, teaches that all economic fallacies sprang from one of two central fallacies, or both: "that of looking only at the immediate consequences of an act or proposal, and that of looking at the consequences only for a particular group to the neglect of other groups." Explanations for Our Collectivist Drift 1) Economic Ignorance: We pay little attention to fundamental issues concerning the origin, nature, and workings of a free society. 2) Taking Liberty for Granted: We are accustomed to doing as we please. Together, these first two encouraged our collectivist drift. 3) But the real obstacle to maintaining a regime of freedom is opposition to limited government and free markets. Expanding government power, especially in economic areas, is the standard liberal cure-all. Some conservatives are also confused on the subject and suggest that American conservatism should not be the party of individual freedom but, instead, a creed of virtue, order, hierarchy, and tradition, stressing the need for moral authority in the state. Common attributes of conservative thought: belief in moral absolutes, adherence to Biblical traditions, and a pessimistic view of human nature Liberals attack these attributes as being authoritarian in practice: they favor skepticism about moral absolutes, a rationalist approach to social problems, and an optimistic view of human nature. The views of philosophical libertarians and "big government" conservatives confuse the issue. The prevalent liberal view precludes the very idea of resistance to big government, The key political insight of the forgotten conservative tradition is the idea of imposing limits on governmental power, in the interests of protecting freedom. Theses: 1) the limited government, free-market emphasis of conservatism is an expression of conservative values; 2) the traditionalist and libertarian strands in conservative thought are congruent, 3) at issue is the very nature of American society, institutions, and freedom. The Liberal History Lesson (a variation on the Whig Interpretation of History) alleges that religion and liberty have always been in conflict. On the contrary: Conservative doctrine on the relationship between religious value, tradition, and ideas of Freedom is essential to free institutions Conversely, secular liberal notions must in the end be lethal to our freedoms. It is impossible to understand the American revolution or our constitutional founding without knowledge of the original settlers and their faith, the English common law experience, or their medieval background.

Es un honor para mí, un viejo profesor, más antiguo en esta universidad que Prudentia Iuris, que se me haya invitado a participar en esta celebración, y que he aceptado no sólo en mi carácter de Profesor Emérito sino también como miembro del Comité Científico de la revista. Lo hago con la alegría de hablar entre amigos que comparten un común ideario y el amor a la Universidad Católica Argentina, a esta facultad, y a la Iglesia. En ocasión de conmemorar 40 años de vida fructífera de Prudentia Iuris, parece adecuado y oportuno reflexionar sobre su cometido, es decir, su

This Book Review is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact daniel-bell@utulsa.edu. Recommended Citation Nancy D. Wadsworth, When the Religious Other Seems Abhorrent: Thoughts on the Power of Scholars to Represent the “Repugnant Cultural Other”, 52 Tulsa L. Rev. 633 (2017).

This Book Review is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact daniel-bell@utulsa.edu. Recommended Citation Nancy D. Wadsworth, When the Religious Other Seems Abhorrent: Thoughts on the Power of Scholars to Represent the “Repugnant Cultural Other”, 52 Tulsa L. Rev. 633 (2017).

Laws," we said, "are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." -Justice Scalia, Employment Division, Department of Human Resources of Oregon v. Smith 1 "Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment [religious] freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens." -Justice O'Connor, Employment Division, Department of Human Resources of Oregon v. Smith 2

Abstract: A basic tension in the US constitutional and political order exists between two important ideas about the relationship between civil society and the state:(1) families, religious institutions, voluntary associations, and other groups are foundational sources, ...

This Book Review is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact daniel-bell@utulsa.edu. Recommended Citation Nancy D. Wadsworth, When the Religious Other Seems Abhorrent: Thoughts on the Power of Scholars to Represent the “Repugnant Cultural Other”, 52 Tulsa L. Rev. 633 (2017).

El autor vuelca algunas reflexiones en torno a la conocida cuestión sobre la relación entre Moral y Derecho. En un primer momento, las analiza en aquello que poseen en común: pertenecen a la razón práctica y buscan lograr una conducta humana; luego, las contrasta en su especificidad mostrando, al mismo tiempo, su inescindible compatibilidad. Concluye con la pregunta: ¿de qué debe ocuparse el jurista al hacer las normas? Y encuentra cinco tópicos: los dos primeros versan sobre el paso de contenidos de la Moral al Derecho, otros dos acerca de la situación de lo moral a partir de lo jurídico, y el quinto sobre el influjo de lo moral extrajurídico sobre lo jurídico como perspectiva política. Abstract: The author offers some reflections on the well-known question of the relation between Moral and Law. At first, it analyzes them in what they have in common: they belong to practical reason and seek to guide human behavior; then, contrasts them in their specificity showing at the same time, their inescapable compatibility. He concludes with the question: what should the jurist do when making the rules? Finding five topics: the first two deal with the passage of Moral content to Law, two others deal with the situation of the moral from the legal perspective, and the fifth on the influence of extrajudicial moral on the legal issues as a political perspective.

The 2020-21 Covid 19 Pandemic has raised many legal challenges as governments world-wide have struggled to deal with the public health and safety challenges of Covid. At the center of many of these decisions is the need to balance public health protections against other rights that have been infringed by legislation related to Covid Pandemic restrictions. One of the most important rights that have been implicated by Covid restrictions in the United States has been in the area of restrictions on religious worship which implicates the right to freedom of religion as enshrined in the United States Constitution. During the time of the Pandemic the United States Supreme Court, as the final arbiter of the United States Constitution has had to work to balance the interests of the government in protecting public health and safety with the right to freedom of religion. The Supreme Court’s approach to these cases reflects the difficulties inherent in balancing two such important interests in ...

Female genital mutilation is the non-medical removal of external female genitalia, as well as different injuries to the female genital organs. Young females under the age of 15 have a common practise of doing so. This practise has been linked to major health issues in women, making it a violation of the human rights of girls and women. This rite is claimed to have been performed by the Indian Dawoodi Bohra community. Khafd, as the locals call it, is a centuries-old religious ritual. Using the jurisprudence of Articles 25 and 26 of the Constitution, as well as a catena of judgements spanning the 1950s to the most recent case of the Indian Young Lawyers Association and Ors. v. State of Kerala, the goal of this study is to investigate the essentiality of FGM as a religious practise (Sabarimala Case).

The principle of human trust works in both the Anglophone and Civilian legal cultures, but does so in two opposite ways. Although not explicitly stated in either legal tradition, the element of trust is of central importance in both. The two traditions began in the medieval period, but in very different circumstances. They had entirely different understandings of what law was and the purposes for which it worked. Their modern incarnations, together with implicit attitudes toward human trust, took shape during the seventeenth and eighteenth centuries-in ways that reinforced their original differences. Their contradictory ideas of trust derived from opposing concepts of human nature: a Humanist confidence in the capacity of men as compared with a Calvinist belief in the depravity of men. Eighteenth century Continental jurists rejected religion as the educative basis of rule. Instead, they embraced an Optimistic philosophic view of human nature, expressed in the Sensus Communis. During the same period England retained a deeply established Puritan ethos. It separated Church and State but, unlike the more secular Continent, it retained an amorphous religiosity as the legitimizing basis of its rule. In Continental legal culture, the ideological and educative half of governance was emphasized. Public cultivation and learning, and the faculty of human reason, were relied on as the ultimate basis of order. By contrast, Anglophone legality, resting on an assumption of human turpitude, promised freedom-but within enforced limits. Its hierarchical Rule of Law was founded on public faith in judicial authority. The project to construct a global law brings these traditions into confrontation. A resolution reached by them will determine the meaning and importance of human trust in the global age.

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing. In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect in reframing the constitutional view of the free exercise clause. In particular, the all-embracing interpretation of the establishment clause eventually was a catalyst used by a revisionist Supreme Court in 1990 to complete a revolution in free exercise jurisprudence. However, that revolution returned the legal interpretation of the free exercise of relig...

Justice Brennan was asked during his confirmation hearings whether being a Roman Catholic would affect his decisions as a judge. In response, he answered that his duty was to interpret the Constitution without regard to his own religious feelings. 7 Before Justice Brennan's confirmation as an Associate Justice, the list of former Justices who were Roman Catholic was both sparse and, for the most part, lackluster: Chief Justices Roger Brooke Taney and Edward White, and Associate Justice Frank Murphy. 8 In some sense, Justice Brennan was breaking new ground as a Catholic and as an Irish-American, especially since Justice Murphy's tenure on the Supreme Court ended with his death at age forty-nine after nine years on the bench. Justice Brennan has never written an article or published a speech about the religion clauses or about the role, if any, of religion in American public life. I suggest that Justice Brennan's decisions concerning the religion clauses were partly a product of his upbringing as an Irish-American Catholic, and were related to two powerful cultural beliefs extant during the mid-20th century: (1) the belief in the melting pot, by which immigrants were attuned to the American way of life; and (2) the "Americanization" of Roman Catholics, in which Catholics and others worked to eliminate the separateness and difference of immigrant Catholics and to incorporate Catholics into the largely Protestant middle class. One resulting goal of these cultural beliefs was to avoid political disputes among religious sects. The predominant method of avoiding disputes among religious groups was to remove religion from American public life and isolate religion in the "private" sphere. The establishment clause was partially suited to achieving this goal. At the same time, since religious conflict was possible, the diversity of religious belief in mid-twentieth century America required the fostering of a related goal, minimizing state-linked coercion of religious belief to preserve religious belief. The free exercise clause was utilized to effectuate this goal. Justice Brennan both agreed with these goals and played a major role in forming constitutional doctrine which attempted to accomplish them. During the 1960s, these noble purposes were furthered by the Court's (and Justice Brennan's) decisions interpreting the establishment and free exercise clauses. In the 1970s, the Court was concerned not with structuring an interpretive method for determining cases brought under the religion clauses, but 7.