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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. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [274 downloads]

2. For-Profit Corporations, Free Exercise, and the HHS Mandate  by
Scott Gaylord (Elon U. School of Law) [142 downloads]

3. And I Don’t Care What It Is: Religious Neutrality in American Law by Andrew Koppelman (Northwestern U. School of Law) [139 downloads]

4. Policing Terrorists in the Community by Sahar F. Aziz (Texas Wesleyan U. School of Law) [132 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) [76 downloads]

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Willis on the Contraception Mandate and Corporations

Steven J. Willis (University of Florida, Fredric G. Levin College of Law) has posted Taxes and Religion: The Hobby Lobby Contraceptive Cases. The abstract follows.

Beginning in 2013, the federal government mandates that general business corporations include contraceptive and early abortion coverage in employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.

So far, courts have been reluctant to hold corporations have religious rights
of their own; as a result, standing of a corporation to assert the religious
beliefs and rights of owners has become the primary issue in the twenty-six
separate cases moving through the courts. Courts are split on whether to grant standing; however, a large majority has used a variation of relational or associational standing to grant preliminary injunctions against enforcement of the tax.

This article discusses the relationship of morality and religion to general
business corporations. It concludes that over the past few decades, movements for social justice and corporate social responsibility have intertwined business corporations and moral issues, blurring the line between religion and commerce. It also concludes that courts should permit associational standing for closely-held corporations – particularly those electing S status for tax purposes – if the owners have unanimous (or near-unanimous) beliefs.

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Morse on Navigating the Penalties in the Affordable Care Act

Edward A. Morse (Creighton U. School of Law) has posted Lifting the Fog: Navigating the Penalties in the Affordable Care Act. The abstract follows.

This article provides an analysis and critique of tax penalties affecting employers and individuals in the Affordable Care Act. After an overview of the Act and its intended role in addressing problems in the health insurance system, the article turns to examine the employer and individual mandates, along with the requirement of minimum essential coverage. It argues that behavioral effects of these provisions are unlikely to achieve the desired policy outcomes. Moreover, the failure to accommodate conscience exemptions for employers and citizens with objections to contraceptive coverage likewise erects a barrier to achieving the desired policy goal of expanded coverage. Finally, the article briefly touches on the problems associated with state exchanges and their implications for employers and citizens seeking health insurance coverage. An appendix shows hypothetical computations affecting an employer decision to shift employees to exchanges rather than to continue employer-provided coverage.

And from the Introduction: Read more

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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. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [259 downloads]

2. Suffer the Teenage Children: Child Sexual Abuse in Church Communities by Patrick Parkinson (U. of Sydney – Faculty of Law) [234 downloads]

3. Bankrupting the Faith by Pamela Foohey (U. of Illinois College of Law) [147 downloads]

4. And I Don’t Care What It Is: Religious Neutrality in American Law by Andrew Koppelman (Northwestern U. School of Law) [135 downloads]

5. For-Profit Corporations, Free Exercise, and the HHS Mandate  by
Scott Gaylord (Elon U. School of Law) [134 downloads]

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Hintze on Mandatory Influenza Vaccinations for Healthcare Employees and Religious Exemptions

Drew D. Hintze (Martinez Law Group, P.C., Denver) has posted Mandatory Influenza Vaccination Policies in Colorado: Are Healthcare Employees with Religious Conflicts Exempt? The abstract follows.

Colorado is attempting to reduce the spread of influenza in healthcare facilities from healthcare personnel to patients.  Colorado’s Department of Public Health and Environment (“CDPHE”) and the Colorado Hospital Association (“CHA”) have each approved initiatives endorsing the need for healthcare organizations in the state to develop influenza vaccination policies to increase vaccination coverage among healthcare personnel.  As mandatory influenza vaccinations become more commonplace in healthcare organizations nationwide, concerns have arisen regarding the circumstances in which a healthcare worker may seek an exemption to an employer-mandated immunization.  This article discusses mandatory influenza vaccination policies in Colorado and the legal issues healthcare employers should consider when an employee seeks an exemption from an influenza vaccination based on religious beliefs.

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Crimm on Globalization and Domestic Islamic-Socio-Political Activism

Nina J. Crimm’s (St. John’s U.) newest article, What Could Globalization Mean for Domestic Islamic-Socio-Political Activism?, has been published  in the most recent issue of the Fordham International Law Journal. The Article’s Introduction is reprinted below.

In this post-modern era, religion has been experiencing a worldwide transformation. Some see a resurgence of traditional religion, including Islam, evidenced by an increase in renewed religious rituals and practices in countries of varying levels of economic development, political structures, and religious traditions including those of North America, the Middle East, Asia, and Africa. Others do not agree entirely. An emphasis on conservative religious beliefs and practices has declined in many industrialized, rich countries, with the United States as one prominent exception. Yet, most analysts appear to agree that developing countries in the Southern regions of the world are increasingly populated by individuals holding conservative religious beliefs. Moreover, “there are more people alive today with traditional religious beliefs than ever before in history, and they’re a larger percentage of the world’s population than they were 20 years ago.” Many think that morality-based values, if not religious precepts (Islamic, Catholic, Protestant), in all parts of the world have become more relevant to, if not a significant influence on, ideological, social, economic, and political issues.

These alterations are tied directly to globalization by which the world is experiencing a “‘historically unique increase of scale to a global interdependency among people and nations’ . . .  Read more

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Nelson on the Free Exercise Rights of Institutions

James David Nelson (Columbia University Law School) has posted Conscience, Incorporated. Nelson’s essay evaluates the ability of corporations and other institutions to claim exemptions from the Affordable Care Act’s contraception mandate under the Free Exercise Clause. The abstract follows.

Do business corporations have free exercise rights? This question has become critically important in recent challenges to the Affordable Care Act’s so-called “contraception mandate.” A host of businesses selling ordinary goods and services claim that they cannot be compelled to provide employees with insurance that covers contraception. Courts have divided over whether corporations can assert rights of conscience, and existing theoretical accounts fail to provide guidance on this question.

This Article offers a new normative framework for evaluating corporate claims of conscience. Drawing on theories of conscience and collective rights, it develops a “social theory” of conscience that explains how individual moral identity is formed within associations and, consequently, how the social structure of those associations can support institutional claims for legal exemptions.

The social theory of conscience has direct implications for free exercise doctrine. For an institution to assert a valid claim, it must be a constitutive community, such that individual members regard the collective as intimately tied to their sense of self. Some institutions, like churches and other religious organizations, fit comfortably in this category. But the legal, social, and economic norms that govern modern business practice pervasively undermine the formation of tight personal connections to for-profit corporations and thereby erode the normative basis for institutional legal exemptions. Free exercise doctrine should therefore resist corporate claims to exemptions from the law.

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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. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [243 downloads]

2. Suffer the Teenage Children: Child Sexual Abuse in Church Communities by Patrick Parkinson (U. of Sydney – Faculty of Law) [229 downloads]

3. Rethinking Religious Reasons in Public Justification  by Andrew F. March (Yale U.) [207 downloads]

4. Bankrupting the Faith by Pamela Foohey (U. of Illinois College of Law) [143 downloads]

5. And I Don’t Care What It Is: Religious Neutrality in American Law by Andrew Koppelman (Northwestern U. School of Law) [133 downloads]

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Astoria on The Endorsement Test and Equal Status

Ross Astoria (U. of Wisconsin, Parkside) has posted The Endorsement Test and Equal Status. The abstract follows.

Since its inception, jurists and legal scholars have hotly contested the utility and fairness of the endorsement test. For its detractors, the endorsement test is unanchored in the constitutional text, devoid of limitations on the exercise of judicial power, and accordingly produces misguided outcomes. In contrast, its remaining adherents think the endorsement test expresses the basic democratic value of equality, and therefore find it worthy of preservation.

This paper is an attempt to reinvigorate the endorsement test
by more concisely articulating the relationship between endorsing and equality. As the endorsement test is presently conceived and employed, however, this relationship is oblique at best. In order to foreground equality, then, the endorsement test requires significant modification, which I propose in Section III. The primary purpose of these modifications is to assign to the norm of equal status the central role in Establishment Clause jurisprudence, particularly in those cases conventionally dubbed “display cases.” As far as I can tell, this is a new approach to religion clause jurisprudence. To test the modified endorsement test, I tease out its implications by applying it to several cases and scenarios.

In what follows, I first introduce the norm of equal status by
comparing it with other norms which religion clause theorists often take as salient (Sec. II). I then introduce the modification to the endorsement test, showing in the process how the endorsement test, as presently conceived, fails to foreground the norm of equal status (Sec. III). Finally, I apply the modified endorsement test to several common display case scenarios (Sec. IV). In the conclusion, I say a few things about the superiority of the modified endorsement test (Sec. V).

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Shah on Religious Accommodations

Prakash Shah (Queen Mary, University of London School of Law) has posted Asking About Reasonable Accommodation in the Context of Religious Universalism. The abstract follows.

Interviews conducted with leading actors in England asking a range of questions about religious diversity and the legal framework and, in particular, about reasonable accommodation, helped identify a number of areas of concern. There was some doubt about whether specific legal provision should be brought in to guarantee reasonable accommodation. However, there was broad support for having the principle adopted in the practice of employers, while some preferred the current informality rather than the principle being enforced through litigation. None of the respondents came up with illustrations outside of Judaism, Christianity or Islam. The results are consistent with recent critical studies showing that the assumption in social sciences that religion is a universal has been imported from theology. Religion-based questions only pick out certain phenomena specific to some cultures and an inevitable skew is created when asking such questions because they only make sense within an Abrahamic religious framework. While enabling the identification of some aspects of culture considered to merit reasonable accommodation on grounds of religion, the results also pose questions about the adequacy of current, standard research methodologies which assume that religion is a universal.