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15 results

  • 6 - The Substantial Burden Question: Secular Tools for Secular Courts

  • from Part II - Religious Claims at Birth
  • Edited by Robin Fretwell Wilson, University of Illinois
  • Book:
    The Contested Place of Religion in Family Law
    Published online:
    11 May 2018
    Print publication:
    31 May 2018, pp 138-170

  • Summary

    What makes a burden on religious exercise “substantial”? This question stands at the center of recent religious liberty debates. Pursuant to the Religious Freedom Restoration Act (RFRA), government cannot "substantially burden" religious exercise—unless doing so is the least restrictive means to achieve a compelling government interest. But defining what qualifies as a substantial burden has proven quite slippery. To determine whether a law’s impact on religious exercise is theologically substantial would seem to draw courts into a constitutionally impermissible assessment of religious doctrine. Yet to avoid a substantiality inquiry altogether would ignore a core feature of RFRA’s text. To navigate this dilemma, this chapter proposes that courts examine not the religious substantiality of the burden. Instead, courts should assess the substantiality of civil penalties triggered by religious exercise. Doing so ensures that courts can apply RFRA’s statutory standard without running afoul of Establishment Clause concerns. In turn, courts can adequately apply RFRA, providing a workable method for distinguishing between those claims deserving of RFRA’s protections and those that are not.

  • 2 - Religion and the Family in the Wake of Hobby Lobby

  • from Part I - The Foundations and Boundaries of Religious Liberty
  • Edited by Robin Fretwell Wilson, University of Illinois
  • Book:
    The Contested Place of Religion in Family Law
    Published online:
    11 May 2018
    Print publication:
    31 May 2018, pp 40-58

  • Summary

    What is the future of religious liberty in United States?  Although enshrined as a core freedom in the First Amendment, public perception of religious liberty is changing in the United States.  Indeed, what was once seen as an unquestionable constitutional value is increasingly viewed with skepticism.  Much of this change stems from the most recent rounds of the culture wars, where religious liberty has emerged at odds with both same-sex marriage and contraception.  And in those contexts, religious liberty is perceived as being increasingly used not as a tool to resist government oppression and intolerance, but as itself a tool of intolerance.  Not surprisingly, this new narrative has turned religious liberty into a target—a dynamic that has played out in numerous state legislatures that have recently considered new religious freedom laws.  In this chapter, I outline a framework for responding to this new narrative—a framework that both promotes religious liberty’s core commitment to protecting religious faith commitments, while still ensuring that it does not run roughshod over other key governmental interests.

Negotiating State and Non-State Law
  • The Challenge of Global and Local Legal Pluralism
  • Edited by Michael A. Helfand
  • Published online:
    05 June 2015
    Print publication:
    02 July 2015
  • Non-state law is playing an increasing role in both public and private ordering. Numerous organizations have emerged alongside the nation-state, each purporting to provide their members with rules and norms to govern their conduct and organize their affairs. The nation-state increasingly finds itself sandwiched, between two broad and contrasting categories of non-state law. The first - law above the state - captures legal systems that function across the territorial borders of nation-states. The second category - law below the state - includes forms of local customary, religious, and indigenous law. As these forms of non-state law persist and proliferate alongside the nation-state, the relationship between state and non-state law becomes more complex, multifaceted, and tense. This volume addresses this relationship considering whether and to what extent state and non-state law can coexist and how each form of law seeks to influence as well as transform the other.

  • When Religious Practices become Legal Obligations: Extending the Foreign Compulsion Defense

  • Michael A. Helfand
  • Journal:
    Journal of Law and Religion / Volume 23 / Issue 2 / 2008
    Published online by Cambridge University Press:
    24 April 2015, pp. 535-578
    Print publication:
    2008

  • Can a man excuse his practices to the contrary [of the law] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

    In 1990, the Supreme Court faced the Free Exercise claim of Alfred Smith and Galen Black, both of whom were denied unemployment compensation because they had been fired for misconduct. Smith and Black, however, argued that such a denial violated their First Amendment rights because the alleged misconduct—smoking peyote—was part of a Native American Church ceremony. Overturning the Oregon Supreme Court, the Court struck down the Sherbert balancing test, arguing that an individual cannot excuse himself from a law merely because it “contradicts” his “religious convictions.” To do so, the Court continued,

    would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

    Such a conclusion would “contradict[] both constitutional tradition and common sense.”

    This article explores whether United States law, in actuality, does not allow individuals to become “laws unto themselves.” While legal scholars in exploring this question have typically focused on the Supreme Court's decision in Boy Scouts of America v. Dale, this article will focus on a more obscure and rarely discussed area of United States law: the foreign compulsion defense. I will argue that it is the foreign compulsion defense which demonstrates that the law does allow individuals to raise themselves above facially neutral and generally applicable laws when they are faced with an irreconcilable legal conflict between foreign and domestic law.