Raccuia on RLUIPA and Burdens of Proof

Thomas E. Raccuia (student at Fordham University School of Law) has posted RLUIPA and Exclusionary Zoning: Government Defendants Should Have the Burden of Persuasion in Equal Terms Cases. The abstract follows.

Zoning and other land use regulations are often used to hinder the operation of religious institutions or the construction of their facilities. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), which protects religious land use. RLUIPA’s Equal Terms provision forbids governments from imposing land use regulations that treat religious institutions on less than equal terms with secular institutions.

Despite the apparent clarity of the statutory language, federal circuit courts have disagreed over the allocation of burdens of proof in Equal Terms cases. Some circuits have held that religious plaintiffs have the burden of persuasion, while others have held that the burden of persuasion falls on government defendants.  Read more

Horwitz on “Tie Games” in Law and Religion

As a commentary chapter for a new book based on the Matters of Faith conference held at University of Alabama, Paul Horwitz (University of Alabama School of Law) has posted Law, Religion, and Kissing Your Sister. The abstract follows.

This paper was written as a commentary chapter for a forthcoming book titled “Matters of Faith: Religious Experience and Legal Response” (Austin Sarat, ed.). The book is based on a conference held at the University of Alabama School of Law in October 2011. Five papers were presented at that conference: on the principal issues discussed, the result was a stark 2-2 tie (with the fifth paper, by a historian, valuable in itself but not taking sides on the disputed matters.) Given the normative orientation of legal scholars, the normal course of business would be to say who is right. But this comment instead focuses on a broader but perennial question: the nature of “tie games” in law and legal scholarship in the area of law and religion.

Church-state conflicts, given the contested and incommensurable issues they involve, are particularly prone to end in ties. That fact has recently encouraged some scholars (myself included) to focus more on the “tragic” nature of church-state law, and the moral remainders that are inevitable in this field, than on the “comic” search for a single value or approach that might resolve some of these disputes once and for all. From that perspective, rather than try to “break the tie,” there may be more value in considering why church-state issues are prone to end in ties, and what if anything we ought to do or feel about it. Read more

Equality and (Religious) Liberty

An interesting story in The Guardian about Oxford professor Roger Trigg, whose new book we noted here.  The story discusses Professor Trigg’s views about the state of religious liberty in Great Britain and, in his view, the trumping power of the value of equality, as well as the sorts of inquiries courts are making about religious centrality and sincerity.  Indeed, there seem to be two themes in the story — the need to balance conflicting values and the question of who should be charged to balance them.  A bit from the story:

In his latest book, Equality, Freedom and Religion, Roger Trigg, who runs the Centre for the Study of Religion in Public Life at Kellogg College, argues: “There has been a clear trend for courts in Europe and North America to prioritise equality and non-discrimination above religion, placing the right to religious freedom in danger.”

He cites a number of recent cases, including that of Lillian Ladele, the Islington registrar who refused to conduct civil partnerships because of her religious beliefs. In that case, he says, “the need to respect the right to equality trumped the freedom of religious convictions”.

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Bauckham on Living with Other Creatures

In November of last year, Richard Bauckham, fellow of the British Academy and the Royal Society of Edinburgh and formerly Professor of New Testament Studies at the University of St. Andrews, published Living With Other Creatures: Green Exegesis and Theology (Baylor). Bauckham reviews Christian scripture and theology to locate a divine command that has sometimes been dubbed “Creation Care”—humanity’s duty to safeguard the natural world, other species, and global ecosystems (for more on Creation Care, see the website of the Evangelical Environmental Network). Such arguments have proven effective in the United States in motivating otherwise skeptical conservatives to rally around environmentalist positions. See, e.g., In Kansas, Climate Skeptics Embrace Green Energy, N.Y. Times, October 19, 2010, at A1. Read the abstract after the jump.

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Bloechl (ed.), “Christianity and Secular Reason”

Jeffrey Bloechl (Boston College) has edited a very interesting looking forthcoming collection of essays, Christianity and Secular Reason: Classical Themes and Modern Developments (Notre Dame Press 2012).  The publisher’s description follows.

What is secularity? Might it yield or define a distinctive form of reasoning? If so, would that form of reasoning belong essentially to our modern age, or would it instead have a considerably older lineage? And what might be the relation of that form of reasoning, whatever its lineage, to the Christian thinking that is often said to oppose it?

In the present volume, these and related questions are addressed by a distinguished group of scholars working primarily within the Roman Catholic theological tradition and from the perspectives of Continental philosophy. As a whole, the volume constitutes a conversation among thinkers who agree in their concerns but not necessarily their conclusions. Taken individually, each essay concentrates on a range of historical developments with close attention to their intellectual and sometimes pedagogical implications. Secular reason, they argue, is neither the antipode of Christian thought nor a stable and well-resolved component of it. Christian thinking may engage with secular reason as the site of profound difficulties, but on occasion will also learn from it as a source of new insight.

Green on School Prayer Controversies in the Post-Civil War Period

This month, Steven K. Green, Frank H. Paulus Professor of Law and Adjunct Professor of History at Willamette University (and director there of the interdisciplinary Center for Religion, Law & Democracy) publishes The Bible, the School, and the Constitution: The Clash that Shaped Modern Church-State Doctrine (Oxford University Press).  While we are well acquainted with school prayer controversies of our day, Professor Green traces the “school question” as far back as the post-Civil War years—between 1863 and 1876—when similar controversies, he argues, were already at the forefront of national attention.

See Oxford University Press’s description after the jump.

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