Sections:

  Free Exercise |  Establishment Clause  |  Property Rights International

 

FREE EXERCISE

Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions
Stephanie Barclay, Mark Rienzi
Boston College Law Review (forthcoming 2018)

The article refutes claims that religious exemptions from laws are unusual compared to other First Amendment rights by empirically showing just the opposite: cases with claims raising religious exemptions are much less common—and such claims are less likely to prevail—than exemptions for other expressive rights.

Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases
Luke Goodrich, Rachel Busick
Seton Hall Law Review (forthcoming 2018)

This article presents one of the first empirical studies of federal religious freedom cases since Hobby Lobby. It finds that religious freedom cases are scarce, successful cases are even scarcer, and a disproportionate share of cases involves small religious minorities.

Coming Soon to a Court Near You: Religious Male Circumcision
Eric Rassbach
2016 University of Illinois Law Review 1347

This article explains the religious liberty issues surrounding religious male circumcision, which is facing restrictions in several Western European countries and a growing opposition movement in the United States.

Fool Me Twice: Zubik v. Burwell and the Perils of Judicial Faith in Government Claims
Mark Rienzi
2016 Cato Supreme Court Review 123

Litigation in Zubik v. Burwell generated three important government concessions that showed it is possible to protect both contraceptive access and religious liberty. Based on those concessions, the Supreme Court was able to reach unanimity in a case that was once predicted to generate deadlock.

“American Muslims, American Islam, and the American Constitutional Heritage,” in Religious Freedom in America: Constitutional Roots and Contemporary Challenges
Asma Uddin
University of Oklahoma Press (2015)

The Affordable Care Act Employer Mandate Cases: Regulation versus Conscience on its Way to the United States Supreme Court
Eric Rassbach
Oxford Journal of Law and Religion 1 (2013)

This commentary summarizes the conflicts of conscience created by regulations under the  Affordable Care Act and predicts that litigation over that conflict is almost certain to reach the U.S. Supreme Court.

The Case for Religious Exemptions – Whether Religion Is Special or Not
Mark Rienzi
127 Harvard Law Review 1395

This book review addresses how a liberal and tolerant society should respond to religious diversity—particularly when this diversity means that society will include some people who are unable to comply with some laws for religious reasons.

The Constitutional Right Not to Participate in Abortions: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers
Mark Rienzi
87 Notre Dame Law Review 1 (2011)

Under the Fourteenth Amendment, the government cannot compel a woman to abort her own fetus. But can it force her, as a healthcare provider, to abort someone else’s? No, according to the very cases the Supreme Court relies on for a constitutional right to abortion.

Unequal Treatment of Religious Exercises Under RFRA
Mark Rienzi
99 Virginia Law Review In Brief 10 (2013)

This article addresses a common error under RFRA and offers a solution: once the sincerity of a person’s religious motivation is established, the religious reasons for the religious conduct should be irrelevant.

God and the Profits: Is There Religious Liberty for Money-Makers?
Mark Rienzi
21 George Mason Law Review 59 (2013)

The article argues that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

“Leveraging Legal Protection for Religious Liberty,” in The Future of Religious Freedom
Angela Wu Howard
Oxford University Press (2012)

The Right to Be Wrong: Ending the Culture War Over Religion in America
Kevin Seamus Hasson
Crown Publishing (2012)

This book argues that our common humanity entitles us to freedom – within broad limits – to follow our consciences, even if our consciences are mistaken. In other words, we have the right to be wrong.

The Constitutional Right Not to Kill
Mark Rienzi
62 Emory Law Journal 121 (2012)

This article offers a new answer to the age-old question of how governments should treat religious objections to participating in government-approved killing (military operations, capital punishment, assisted suicide, abortion, and self-defense): a federal constitutional right not to kill stemming from the Due Process Clauses of the Fifth and Fourteenth Amendments.

The Health Care and Conscience Debate
Luke Goodrich
12 Engage 121 (2011)

This article explains how a new federal regulation in the healthcare field reduces protections for conscience, how the principal arguments against conscience protections fail, and highlights where the next big fights over conscience will occur.

Same-Sex Marriage and Religious Liberty: Emerging Conflicts
Anthony Picarello (co-editor with Douglas Laycock and Robin Fretwell Wilson)
Rowman & Littlefield Publishers, Inc. (2008)

This book offers the first comprehensive, scholarly appraisal of the potential conflicts between same-sex marriage and religious liberty.

RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA’s Prisoner Provisions
Derek Gaubatz
28 Harvard Journal of Law & Public Policy 501 (2005)

Four years after the Religious Land Use and Institutionalized Persons Act was passed, this article evaluates its progress in protecting religious land use and the religious liberty of prisoners.

Secularism’s Laws: State Blaine Amendments and Religious Persecution
Kyle Duncan
72 Fordham Law Review 493 (2003)

This article examines the anti-Catholic history, language, and effects of state “Blaine Amendments,” which bar public funds from going to “sectarian” groups in violation of the First Amendment’s principle against persecution on religious grounds.

 


ESTABLISHMENT CLAUSE/CHURCH & STATE

When a Pastor’s House Is a Church Home: Why the Parsonage Allowance is Desirable Under the Establishment Clause
Daniel Benson, Hannah Smith
18 Federalist Society Review 60 (2017)

This article explains why a longstanding tax exemption for the housing costs of ministers is not only constitutionally permissible but also furthers important Establishment Clause values.

Believers, Thinkers, and Founders: How We Came to Be One Nation Under God
Kevin Seamus Hasson
April 5, 2016

The book offers a solution to our culture wars over religion and government: government can recognize the distinction between the “Creator” in the Declaration of Independence and the God of our specific faith traditions by acknowledging the existence of God philosophically—as the source of our rights—rather than religiously.

Town of Greece v. Galloway: The Establishment Clause and the Rediscovery of History
Eric Rassbach
2014 Cato Supreme Court Review 71

This article explains how Town of Greece v. Galloway marks a major inflection point in the Supreme Court’s Establishment Clause jurisprudence—by requiring courts to interpret the Establishment Clause in accordance with its history.

LemonMarsh, and Refounding Establishment Clause Jurisprudence
Eric Rassbach
15 Rutgers Journal of Law & Religion 490 (2014)

This article explains how the Supreme Court’s historical approach in Town of Greece v. Galloway offers a better basis for interpreting the Establishment Clause.

The First Amendment: Religious Freedom for All, Including Muslims
Asma Uddin
20 Washington & Lee Journal of Civil Rights and Social Justice 73 (2013)

This article analyzes anti-sharia laws under the Establishment and Free Exercise Clauses.

A First Amendment Analysis of Anti-Sharia Initiatives
Asma Uddin (co-author)
10 First Amendment Law Review 363 (2012)

An exploration of the climate in the United States of anti-Muslim sentiment, as manifested in laws in various states banning judges from considering Islamic law (Sharia) or blocking the building of mosques, and an examination of these proposals in light of the First Amendment.

Passive Acknowledgement or Active Promotion of Religion? Neutrality and the Ten Commandments in Green v. Haskell
Stephanie Barclay
2010 B.Y.U. Law Review 3

In Green v. Haskell, the Tenth Circuit failed to apply the controlling precedent of Van Orden v. Perry when it decided that a monument inscribed with the Ten Commandments on the lawn of the county courthouse violated the Establishment Clause.

The Good News of Innerchange
Anthony Picarello
7 Ave Maria Law Review 25 (2008)

The Eighth Circuit’s decision in Americans United for Separation of Church & State v. Prison Fellowship Ministries, which upheld the constitutionality of faith-based prison units, charts a course forward for such prison units as being compatible with the Constitution.

Establishing Anti-Foundationalism Through the Pledge of Allegiance Cases
Anthony Picarello
5 First Amendment Law Review 183 (2006)

This article defends the constitutionality of the phrase “under God” in the Pledge of Allegiance.

The State of Blaine: A Closer Look at the Blaine Amendments and Their Modern Application
Meir Katz
12 Engage 111 (2011)

An exploration of the important role that Blaine Amendments—which tend to bar all government funding to religious groups or for a “sectarian” purpose—play in deciding current legal disputes over the relationship between the church and government in the forty states whose constitutions contain such amendments.

 


RELIGION AND PROPERTY RIGHTS

On Resolving Church Property Disputes
Luke Goodrich (co-authored with Michael McConnell)
58 Arizona Law Review 307 (2016)

This article explains how courts should decide who owns church property after a schism.

Are Houses of Worship “Houses” Under the Third Amendment?
Eric Rassbach
82 Tennessee Law Review 611 (2016)

This article argues that the Third Amendment—which prohibits the government from unlawfully housing soldiers “in any house”—protects not only residential homes but also houses of worship.

RLUIPA: Necessary, Modest, and Under-Enforced
Luke Goodrich (co-authored with Douglas Laycock)
39 Fordham Urban Law Journal 1021 (2012)

This article explains why RLUIPA is necessary and clears up confusion over the meaning of RLUIPA’s important “equal terms” provision.

The Religious Land Use and Institutionalized Persons Act of 2000
Roman Storzer & Anthony Picarello
9 George Mason Law Review 929 (2001)

An early defense of the constitutionality of the Act, which protects religious groups against discrimination in land use and protects the religious freedom of prisoners.

 


INTERNATIONAL/FOREIGN

Free Speech and Public Order Exceptions: A Case for the U.S. Standard
Asma Uddin
2015 B.Y.U. Law Review 727

Governments in several Muslim-majority countries have struggled to develop proper constitutional protections for free speech and religious freedom, especially Pakistan. There, blasphemy laws have often lead to riots, community violence, and infringement of basic human rights. The article argues that the key to stability is liberty.

Provocative Speech in French Law: A Closer Look at Charlie Hebdo
Asma Uddin
11 Florida International University Law Review 189 (2015)

After the terrorist attacks on the French magazine Charlie Hebdo, true to its history of using speech laws to curtail speech, the French government simultaneously punished critics of the magazine for their speech and glorified Charlie Hebdo as a symbol of free speech.

Public (Dis)order and Public (Im)morality: An Introduction to the Spring 2015 Issue
Asma Uddin
13 The Review of Faith & International Affairs 1 (2015)

An exploration of how governments and courts make exceptions to free speech and religious freedom protections on the basis of preserving public order and morality.

“The UN Defamation of Religious Resolution and Domestic Blasphemy Laws in Pakistan: Creating a Culture of Impunity,” in Free Speech and Censorship Around the Globe
Asma Uddin
Central European University Press (2015) 

Intragroup Discourse on Intragroup Protections in Muslim-Majority Countries
Asma Uddin
89 Chicago-Kent Law Review 641 (2014)

Many Muslim-majority countries do not provide adequate protection for dissent of any sort. This paper focuses attention on intra-Muslim disagreement about the proper scope of religious freedom in these countries.

“The Indonesian Blasphemy Act: A Legal and Social Analysis,” in Profane: Sacrilegious Expression in a Multicultural Age
Asma Uddin
University of California Press (2014)

“A Legal Analysis of Ahmadi Persecution in Pakistan,” in State Responses to Minority Religions
Asma Uddin
Routledge (2013)

Blasphemy Laws in Muslim-Majority Countries
Asma Uddin
The Review of Faith & International Affairs (Summer 2011)

An essay on how blasphemy laws in some Muslim-majority countries, as well as the United Nations Defamation of Religion Resolution, are used to reduce religious and speech rights.

Religious Freedom Implications of Sharia Implementation in Aceh, Indonesia
Asma Uddin
7 University of St. Thomas Law Journal 603 (2011)

An analysis of Sharia (Islamic) law in Indonesia, concluding that as long as Sharia regulations legally require one interpretation of Islam over other interpretations, such regulations pose serious religious freedom problems for disfavored Indonesian Muslims.

Defamation of Religions: The End of Pluralism?
L. Bennett Graham
23 Emory International Law Review 69 (2009)

This essay provides historical context of a United Nations resolution against the “defamation of religions,” and shows why the resolution undermines the fundamental freedoms of expression and conscience. The essay also outlines how the debate is shifting towards prohibiting discrimination and inciting violence, and what would be a better solution.

Liberte, Egalite, et Fraternite at Risk for New Religious Movements in France
Hannah Smith
2000 B.Y.U. Law Rev. 1099

This article discusses violations by the French government of religious liberty protections found in numerous international and European treaties, laws, and court decisions, and surveys the historical, cultural, and political pressures behind France’s anti-sect policy.

Religious Liberty and Human Dignity: A Tale of Two Declarations
Kevin J. Hasson
27 Harvard Journal of Law & Public Policy 81 (2003)

Compares the United Nations’ Universal Declaration of Human Rights, which was not able to explicitly state a basis for either human rights or dignity, with the Vatican II’s Declaration of Religious Freedom, which was able to state a basis for both.