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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,  Zoe Robinson remains at #1; Andrew Koppelman remains at #2; Michal Gilad joins the list at #3, replacing Ian Bartrum who drops to #5; and Patrick McKinley Brennan joins the list at #4.

1.What is a ‘Religious Institution’? by Zoe Robinson (Depaul University College of Law) [290 downloads]

2. ‘Freedom of the Church’ and the Authority of the State by Andrew Koppelman (Northwestern University School of Law) [181 downloads]

3. In God’s Shadow: Unveiling the Hidden World of Domestic Violence Victims in Religious Communities by Michal Gilad (University of Pennsylvania Law School) [163 downloads]

4. Resisting the Grand Coalition in Favor of the Status Quo by Giving Full Scope to the Libertas Ecclesiae by Patrick McKinley Brennan (Villanova University School of Law) [151 downloads]

5.Book Review: ‘The Tragedy of Religious Freedom’  by Ian C. Bartrum (University of Nevada, Las Vegas) [122 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, Zoe Robinson remains at #1; Ian C. Bartrum remains at #2; Caroline Mala Corbin remains at number #3;  and Jeremy M. Christiansen moves up to #4, switching spots with Carl F. Minzner who dropped to #5.

1.What is a ‘Religious Institution’? by Zoe Robinson (Depaul University College of Law) [277 downloads]

2. Book Review: ‘The Tragedy of Religious Freedom’  by Ian C. Bartrum (University of Nevada, Las Vegas) [112 downloads]

3.Corporate Religious Liberty by Caroline Mala Corbin (University of Miami School of Law) [97 downloads]

4.‘The Word[ ] ‘Person’…Includes Corporations’: Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations by Jeremy M. Christiansen  (University of Utah- S.J. Quinney College of Law) [85 downloads]

5.Book Review of ‘A Confucian Constitutional Order: How China’s Ancient Past Can Shape its Political Future’ by Jiang Qing, edited by Daniel Bell and Ruiping Fan (Princeton University Press) by Carl F. Minzner (Fordham University- School of Law) [84 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, Zoe Robinson rises to #1, replacing Douglas Laycock; Ian C. Bartrum rises to #2; Caroline Mala Corbin joins the list at number #3; Carl F. Minzner remains at #4; and Jeremy M. Christiansen joins the list at #5, replacing Daniel O. Conkle.

1.What is a ‘Religious Institution’? by Zoe Robinson (Depaul University College of Law) [269 downloads]

2. Book Review: ‘The Tragedy of Religious Freedom’  by Ian C. Bartrum (University of Nevada, Las Vegas) [106 downloads]

3.Corporate Religious Liberty by Caroline Mala Corbin (University of Miami School of Law) [88 downloads]

4. Book Review of ‘A Confucian Constitutional Order: How China’s Ancient Past Can Shape its Political Future’ by Jiang Qing, edited by Daniel Bell and Ruiping Fan (Princeton University Press) by Carl F. Minzner (Fordham University- School of Law) [83 downloads]

5.‘The Word[ ] ‘Person’…Includes Corporations’: Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations by Jeremy M. Christiansen  (University of Utah- S.J. Quinney College of Law) [78 downloads]

Posted on by Marc O. DeGirolami

Haupt on Active Symbols

Our friend and former Center for Law and Religion Forum guest Claudia Haupt (Columbia) has posted her paper, “Active Symbols,” forthcoming in the Boston College Law Review. The abstract follows.

Visual representations of religious symbols continue to puzzle judges. Lacking empirical data on how images communicate, courts routinely dismiss visual religious symbols as “passive”. This Article challenges the notion that symbols are passive, introducing insights from cognitive neuroscience research to Establishment Clause theory and doctrine. It argues that visual symbolic messages can be at least as active as textual messages. Therefore, religious messages should be assessed in a medium-neutral manner in terms of their communicative impact, that is, irrespective of their textual or visual form.

Providing a new conceptual framework for assessing religious symbolic messages, this Article reconceptualizes coercion and endorsement—the dominant competing approaches to symbolic messages in Establishment Clause theory—as matters of degree on a spectrum of communicative impact. This focus on communicative impact reconciles the approaches to symbolic speech in the Free Speech and Establishment Clause contexts and allows Establishment Clause theory to more accurately account for underlying normative concerns.

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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, Douglas Laycock remains at #1, Perry Dane and Zoe Robinson have switched places, so that Zoe Robinson is now at #2 while Perry Dane is #3, Richard Garnett remains at #4, and Ian C. Bartum joins the list at #5, replacing Christopher C. Lund.

1. Religious Liberty and the Culture Wars by Douglas Laycock (U. of Virginia, School of Law) [281 downloads]

2. What is a ‘Religious Institution’? by Zoe Robinson (Depaul University College of Law) [253 downloads]

3. Doctrine and Deep Structure in the Contraception Mandate Debate by Perry Dane (Rutgers, School of Law) [242 downloads]

4. ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense by Richard W. Garnett (Notre Dame Law School) [141 downloads]

5.Book Review: ‘The Tragedy of Religious Freedom’  by Ian C. Bartum (University of Nevada, Las Vegas) [98 downloads]

Posted on by Mark Movsesian

Chapman on Conscience and Religion

Nathan Chapman (Georgia) has posted a new article, Disentangling Conscience and Religion, on SSRN. The abstract follows:

What does “liberty of conscience” mean? Religious liberty? Freedom of strong conviction? Freedom of thought? Since the Founding Era, Americans have used liberty of conscience to paper over disputes about the proper scope of religious, moral, and philosophical liberty. This Article explores the relationship between conscience and religion in history, political theory, and theology, and proposes a conception of conscience that supports a liberty of conscience distinct from religious liberty. In doing so, it offers a theoretical basis for distinguishing between conscience and religion in First Amendment scholarship and related fields. Conscience is best understood, for purposes of legal theory, as a universal faculty that issues moral commands and judgments. This conception overlaps with religion but is not concentric with it. On one hand, conscience may be informed by religious beliefs (or by nonreligious beliefs). On the other, religious beliefs and practices may be entirely independent of conscience. Protecting fidelity to conscience, whether religious or nonreligious, promotes integrity and undermines the government’s pretensions to moral totalitarianism. This conception of conscience is coherent enough to support a legal right and valuable enough to deserve one.

Posted on by Mark Movsesian

Lugato on Religious Associations in European Law

Monica Lugato (LUMSA-Rome) has posted a new article, National Policy Towards Religious Associations within the Framework of European Law, on SSRN. The abstract follows:

The article discusses the current status of policy towards religion as a national competence within the framework of European law. It submits on the one hand that, in the present stage of European integration, core decisions concerning the public dealing with religion and religious communities are inherently a national policy domain. However, because religion is at the same time an element of the Member States’ national identities, one of the sources of the founding values of the European Union and a fundamental freedom both nationally, internationally and within EU law, the scope of such inalienable policy domain is shaped, through an on-going process, not only by national law implementing national policy choices on religion, but also by EU law aimed at preserving national identities and the identity and specific contribution of religious (and philosophical and non-confessional organizations) associations, as they have historically and culturally developed within the national States, while at the same time safeguarding the EU framework on fundamental freedoms and fundamental rights; and, finally, by international rules on freedom of religion limiting Member States’ and the EU’s freedom in the same area.

Posted on by Mark Movsesian

Adhar on Secularism

Rex Adhar (University of Otago, New Zealand) has published an article, “Is Secularism Neutral?”, in this month’s edition of Ratio Juris (subscription required). The abstract follows:

This article argues that secularism is not neutral. Secularization is a process, the secular state is a structure, whereas secularism is a political philosophy. Secularism takes two main forms: first, a “benevolent” secularism that endeavours to treat all religious and nonreligious belief systems even-handedly, and, second, a “hostile” kind that privileges unbelief and excludes religion from the public sphere. I analyze the European Court of Human Rights decision in Lautsi v Italy, which illustrates these types. The article concludes that secularism as a political philosophy cannot be neutral, and the secular state is not neutral in its effects, standpoint, governing assumptions or treatment of religious truth claims.

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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, Douglas Laycock remains at #1, Perry Dane remains at #2, Zoe Robinson joins the list at #3, replacing Elizabeth Sepper, Richard Garnett remains at #4, and Christopher C. Lund joins the list at #5, replacing Patrick McKinley Brennan.

1. Religious Liberty and the Culture Wars by Douglas Laycock (U. of Virginia, School of Law) [271 downloads]

2. Doctrine and Deep Structure in the Contraception Mandate Debate by Perry Dane (Rutgers, School of Law) [236 downloads]

3. What is a ‘Religious Institution’? by Zoe Robinson (Depaul University College of Law) [236 downloads]

4. ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense by Richard W. Garnett (Notre Dame Law School) [138 downloads]

5. Church Autonomy Reconceived: The Logic and Limits of Hosanna-Tabor by Christopher C. Lund (Wayne State University-School of Law) [82 downloads]

Posted on by JCPW

Horwitz on Overlapping Jurisdictions

Paul Horwitz (University of Alabama School of Law) has posted Rethinking the Law, Not Abandoning it: A Comment on ‘Overlapping Jurisdictions’. The abstract follows.

This short paper responds to a symposium article published by John Witte and Joel Nichols entitled “Who Governs the Family?: Marriage as a New Test Case of Overlapping Jurisdictions,” 4 Faulkner L. Rev. 321 (2013). Much of the response was motivated by a statement in an earlier draft of that paper suggesting that advocates of the use of shari’a in marriage cases “have given up on the state” and “want to become a law unto themselves.” I question that statement, and also take the occasion to discuss the legal status of anti-shari’a laws themselves.

My paper makes two basic points. First, although I am generally skeptical that equality is a sufficiently clean and clear principle to serve as the lodestar for all Religion Clause cases, I do believe there are cases where equality does a good deal of useful work. One such area is the legislative and judicial dispute over laws banning the judicial use of shari’a in interpreting marriage contracts. The Tenth Circuit’s decision in Awad v. Ziriax, in which it concluded that such a law violated the antidiscrimination principle offered in Larson v. Valente, shows that equality can be a powerful tool in such cases. It also sheds light on two points that have not been made much in law and religion scholarship: that Larson’s antidiscrimination principle can serve valuable information-forcing purposes, and that this principle can be profitably understood as a matter of political economy.

Second, I argue that although there are some grounds for Witte’s description of shari’a advocates as having given up on the state, that is a disturbing way to think of the issue, and not a necessary one. We need not think of religious arbitration panels and other mechanisms of religious law as an utter abandonment of “law” or “the state.” Rather, we can understand them as a challenge to what we mean by those terms. Religious arbitration of choice-of-law arrangements, and religious institutional autonomy arguments more generally, invite us to adopt a different view of what constitutes “the law” and, perhaps, a more skeptical view of the scope and dominance of “the state.”