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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five. Since last week, Wenger, Balkin, Berg and Willis  have remained in the same slots; Vischer has been replaced by Alvare.

1. ‘The Divine Institution of Marriage’: An Overview of LDS Involvement in the Proposition 8 Campaign by Kaimipono David Wenger (Thomas Jefferson School of Law) [531 downloads]

2. Must We Be Faithful to Original Meaning?  by Jack M. Balkin (Yale  U. – Law School) [234 downloads]

3. Protecting Same-Sex Marriage and Religious Liberty by Douglas Laycock (U. of Virginia School of Law) and Thomas C. Berg (U. of St. Thomas School of Law) [205 downloads]

4. Taxes and Religion: The Hobby Lobby Contraceptive Cases  by Steven J. Willis (U. of Florida) [135 downloads]

5. No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom by Helen M. Alvare (George Mason U., School of Law) [128 downloads]

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five. Since last week, all articles have remained in the same slots:

1. ‘The Divine Institution of Marriage’: An Overview of LDS Involvement in the Proposition 8 Campaign by Kaimipono David Wenger (Thomas Jefferson School of Law) [529 downloads]

2. Must We Be Faithful to Original Meaning?  by Jack M. Balkin (Yale  U. – Law School) [229 downloads]

3. Protecting Same-Sex Marriage and Religious Liberty by Douglas Laycock (U. of Virginia School of Law) and Thomas C. Berg (U. of St. Thomas School of Law) [200 downloads]

4. Taxes and Religion: The Hobby Lobby Contraceptive Cases  by Steven J. Willis (U. of Florida) [131 downloads]

5. Do For-Profit Businesses Have Free Exercise Rights? by Robert K. Vischer (U. of St. Thomas) [108 downloads]

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five. Since last week, Wenger has remained #1, Balkin has remained #2, Laycock and Berg have remained #3, Willis has risen to #4, and Gaylord has been replaced by Vischer:

1. ‘The Divine Institution of Marriage’: An Overview of LDS Involvement in the Proposition 8 Campaign by Kaimipono David Wenger (Thomas Jefferson School of Law) [523 downloads]

2. Must We Be Faithful to Original Meaning?  by Jack M. Balkin (Yale  U. – Law School) [221 downloads]

3. Protecting Same-Sex Marriage and Religious Liberty by Douglas Laycock (U. of Virginia School of Law) and Thomas C. Berg (U. of St. Thomas School of Law) [185 downloads]

4. Taxes and Religion: The Hobby Lobby Contraceptive Cases  by Steven J. Willis (U. of Florida) [127 downloads]

5. Do For-Profit Businesses Have Free Exercise Rights? by Robert K. Vischer (U. of St. Thomas) [101 downloads]

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five. Since last week, Wenger has remained #1, Balkin has risen to #2, Laycock and Berg have risen to #3, Gaylord has risen to #4, and Rienzi has been replaced by Willis:

1. ‘The Divine Institution of Marriage’: An Overview of LDS Involvement in the Proposition 8 Campaign by Kaimipono David Wenger (Thomas Jefferson School of Law) [514 downloads]

2. Must We Be Faithful to Original Meaning?  by Jack M. Balkin (Yale  U. – Law School) [219 downloads]

3. Protecting Same-Sex Marriage and Religious Liberty by Douglas Laycock (U. of Virginia School of Law) and Thomas C. Berg (U. of St. Thomas School of Law) [183 downloads]

4. For-Profit Corporations, Free Exercise, and the HHS Mandate  by Scott Gaylord (Elon U. School of Law) [159 downloads]

5. Taxes and Religion: The Hobby Lobby Contraceptive Cases  by Steven J. Willis (U. of Florida) [127 downloads]

Posted on by Mark Movsesian

Lombardi on Islamic Constitutions

In many Muslim-majority countries, voters say they favor Sharia as a source of civil law. It’s not always clear what this means. Does “Sharia” refer to classical fiqh or something else? Is “Sharia” meant to apply as law or serve as a background norm for judging the validity of other laws? In a new article, Designing Islamic Constitutions: Past Trends and Options for a Democratic Future, Clark Lombardi (University of Washington) explores the trend of enshrining Sharia in recent constitutions in Muslim-majority countries. Here’s the abstract:

In recent years a growing number of countries have adopted constitutional provisions requiring that state law respect Islamic law (sharia). Muslims today are deeply divided, however, about what types of state action are consistent with sharia. Thus, the impact of a “Sharia Guarantee Clause” depends to a large degree on questions of constitutional design — on who is given the power to interpret and apply the provision and on what procedures that they follow when making their decisions. This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGC’s, and it considers the impact that different schemes have had on society. Building on this background, the article considers what type of SGC enforcement scheme, if any, are likely to permit (and ideally promote) a state to pursue democratic policies. As it notes, SGC’s are often found in authoritarian or imperfectly democratic constitutions. Unsurprisingly, the designers of SGC enforcement schemes in non-democratic countries have generally tried to ensure that their SGC will be interpreted and applied in a way that permitted or even promoted non-democratic policies. Nevertheless, we can draw from the experience of these countries some important lessons about the types of SGC enforcement scheme that will allow more democratic states to promote both democratic political participation and rights. At the same time, recent debates have erupted in Western liberal democracies about how best to reconcile rights enforcement with democracy. These debates clarify some issues that aspirational Islamic democracies will face as they try to develop SGC enforcement schemes for a democratic society, and they provide insight into the qualities that an institution must possess if it is to address such issues effectively. A number of Muslim countries are currently debating how best to square a constitutional commitment to respect Islam with parallel commitments to democracy and rights. Acknowledging that these countries will need to tailor their SGC enforcement schemes to very different local conditions, this paper describes some basic design features that effective democratic SGC enforcement schemes are likely to share.

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five. Since last week, Laycock and Berg have risen to #4, Gaylord has dropped to #5, and Koppelman has been replaced by Balkin:

1. ‘The Divine Institution of Marriage’: An Overview of LDS Involvement in the Proposition 8 Campaign by Kaimipono David Wenger (Thomas Jefferson School of Law) [495 downloads]

2. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [303 downloads]

3. Must We Be Faithful to Original Meaning?  by Jack M. Balkin       (Yale  U. – Law School) [205 downloads]

4. Protecting Same-Sex Marriage and Religious Liberty by Douglas Laycock (U. of Virginia School of Law) and Thomas C. Berg (U. of St. Thomas School of Law) [174 downloads] (Moved up from #5)

5. For-Profit Corporations, Free Exercise, and the HHS Mandate  by Scott Gaylord (Elon U. School of Law) [153 downloads]

Posted on by Marc O. DeGirolami

Horwitz, “Freedom of the Church Without Romance”

For those interested in the exploding work on the freedom of the church (and you should all be!), do see Paul Horwitz’s new tour de force draft article, Freedom of the Church Without Romance, a typically graduated and thoughtful piece by a defender of ecclesial liberty.

I haven’t yet read the entire piece, but what I have read is rich and very interesting. I touch on ideas of liberty of the church in my chapter on free exercise applications of the tragic-historic method in The Tragedy of Religious Freedom–in Chapter 9 where I discuss the Hosanna-Tabor case. But because (I think!) my view of freedom of the church is perhaps not quite as potent in certain ways as is Paul’s (it is subject to perhaps greater particularistic assessment by courts and is less committed to the general superstructure of Horwitzian First Amendment institutionalism, even as qualified in this piece), I wonder whether, for me, the suggestion of embracing a “strong non-establishment regime” follows as powerfully as it does for Paul (if one understands a “strong” disestablishmentarian regime in the way that I suspect Paul does). Some of Paul’s questions toward the end of the piece about arguments involving church freedom alongside others concerning equal access of religious entities in the provision of services do not seem to me to give churches “a competitive advantage” that is troubling for Establishment Clause purposes (one can believe this, I think, and also agree with Paul about the importance of the economics of religion quite apart from the issue of its constitutional weight), though I understand the point that Paul is making. At any rate, the piece is well worth a good, long read. The abstract follows.

This Article is part of a symposium issue titled “Freedom of the Church in the Modern Era.” Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court’s decision affirming the “ministerial exception” doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,the idea of “freedom of the church” has taken on new champions–and critics.

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion.

Both historical and economic analysis of the concept of”freedom of the church” suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions–or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of “freedom of the church” means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion’s status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church’s well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church–the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime.

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

Posted on by Marc O. DeGirolami

Ledewitz on “Pro-Religion Equality”

Here’s an interesting paper by Professor Bruce Ledewitz (Duquesne) which engages with some of the recent ‘is-it-special?’ scholarship about religion and connects to the ‘hallowed secularism‘ themes that Bruce has been developing for several years in other work: The Vietnam Draft Cases and the Pro-Religion Equality Project. The abstract follows:

There is currently unfolding among secularists and liberal religious believers an equality project that argues that secular commitments of conscience are as worthy of protection as are the commitments of traditional religion. This movement is symbolized by Brian Leiter’s recent book, “Why Tolerate Religion?” but it has many other adherents today as well. This movement seeks either to substitute conscience provisions for existing religious exemptions from law or at least to add conscience exemptions to them. As religious believers have pointed out, the likely consequence, and perhaps even the goal, of this effort is the weakening of exemptions for religion rather than the strengthening of conscience exemptions for all. That is why I call this movement the Anti-Religion Equality Project. The State is the ultimate beneficiary of the Anti-Religion Equality Project.

This paper proposes an opposing equality project, the Pro-Religion Equality Project, which would expand the meaning of religion in existing religious exemptions to include many, and certainly the most passionately held, commitments of secular conscience. There is nothing new in this Pro-Religion Equality Project. The Supreme Court already expanded religious exemptions in the Vietnam draft cases, Seeger, Welsh, and Gillette, which held that conscience commitments occupying a place in the life of the nonbeliever parallel to the place of God for the traditional religious believer deserve exemption from law as religious. While Leiter aims to subsume religion under the mantle of conscience, the Pro-Religion Equality Project subsumes conscience under the rubric of religion.

Expansively interpreting religion exemptions is a better path than creating conscience provisions for a number of reasons. Because conscience is so easily invoked, conscience protection can only be weakly enforced, thus undercutting liberty for all. That result not only fails to protect religious liberty, it understates the significance of conscience claims that share the depth and breadth of traditional religious commitments and are of equal significance. Such secular conscience claims should be robustly protected and including them in existing religious exemptions helps ensure that result. In contrast, conscience claims that are idiosyncratic and lightly held should be excluded from exemptions from general law altogether and the expansion of religion exemptions tends to accomplish that.

As in the Vietnam era, nonreligious exemption claimants today will resist inclusion in religious exemptions because they do not consider themselves to be religious. But even this objection shows the advantage of the Pro-Religion Equality Project over its competitor. For conscience is understood to be an individual judgment and the promotion of conscience exemptions supports the view that deeply held moral commitments are personal and subjective. In contrast, religion sounds in truth and the expansion of religious exemptions will ignite a needed societal debate about religion, reason, relativism and nihilism.

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five:

1. ‘The Divine Institution of Marriage’: An Overview of LDS Involvement in the Proposition 8 Campaign by Kaimipono David Wenger (Thomas Jefferson School of Law) [473 downloads]

2. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [284 downloads]

3. For-Profit Corporations, Free Exercise, and the HHS Mandate  by
Scott Gaylord (Elon U. School of Law) [146 downloads]

4. And I Don’t Care What It Is: Religious Neutrality in American Law by Andrew Koppelman (Northwestern U. School of Law) [145 downloads]

5. Protecting Same-Sex Marriage and Religious Liberty by Douglas Laycock (U. of Virginia School of Law) and Thomas C. Berg (U. of St. Thomas School of Law) [142 downloads]

Posted on by Marc O. DeGirolami

Inazu, “Freedom of the Church (New Revised Standard Version)”

Have a look at our friend John Inazu’s insightful new piece, Freedom of the Church (New Revised Standard Version).  A methodological theme in John’s writing is the importance of excavating the theological assumptions which lie below many of our current legal doctrines and theories, particularly (though not exclusively) in the law and religion context.  This piece pursues the Inazian (I would have said Inatian, but that’s perhaps too close to Ignatian) theme with respect to Catholic and Protestant ideas about ecclesiastical liberty.  Here is the abstract:

Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.”

The existing debate over the freedom of the church obscures these insights in two ways. First, its back-and-forth nature suggests that translation succeeds or fails on the level of individual arguments. Second, its current focus on a mostly Catholic argument neglects other theological voices. The kind of cultural views that affect constitutional doctrine are less linear and more textured than the existing debates suggest. This paper adds to the discussion a Protestant account of the freedom of the church: the New Revised Standard Version. Part I briefly sketches the process of translation that any theological concept encounters in the path to constitutional doctrine. Part II summarizes the current debate in legal scholarship about the freedom of the church. Part III introduces the New Revised Standard Version through three prominent twentieth-century theologians: Karl Barth, Dietrich Bonhoeffer, and Stanley Hauerwas. Part IV assesses the possibility of translation, and Part V warns of the theological limits to translating certain theological concepts. The New Revised Standard Version reinforces some of the normative claims underlying the Catholic story, but it does so through a Protestant lens that is somewhat more familiar to American political thought. It also differs from the Catholic account in two important ways: (1) by characterizing the church as a witnessing body rather than as a separate sovereign; and (2) by highlighting the church’s freedom in a post-Christian polity.