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]
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: Continue reading
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.
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’ . . . Continue reading
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).
Last month, InterVarsity Press published Jesus Is Lord, Caesar Is Not: Evaluating Empire in New Testament Studies, edited by Scot McKnight (U. of Nottingham) and Joseph B. Modica (Eastern U.). The publisher’s description follows:
The New Testament is immersed in the often hostile world of the Roman Empire, but its relationship to that world is complex.
What is meant by Jesus’ call to “render unto Caesar” his due, when Luke subversively heralds the arrival of a Savior and Lord who is not Caesar, but Christ? Is there tension between Peter’s command to “honor the emperor” and John’s apocalyptic denouncement of Rome as “Babylon the Great, the mother of harlots”?
Under the direction of editors Scot McKnight and Joseph B. Modica, respected biblical scholars have come together to investigate an increasingly popular approach in New Testament scholarship of interpreting the text through the lens of empire. The contributors praise recent insights into the New Testament’s exposé of Roman statecraft, ideology and emperor worship. But they conclude that rhetoric of anti-imperialism is often given too much sway. More than simply hearing the biblical authors in their context, it tends to govern what they must be saying about their context. The result of this collaboration, Jesus Is Lord, Caesar Is Not, is a groundbreaking yet accessible critical evaluation of empire criticism.
NB: Peter Leithart reviews the book at First Things.
Natalia Vlas (Babes-Bolyai University) has posted The Law on Religious Freedom: An Expression of Romanian Democracy? . The abstract follows.
This paper aims to analyze the place of religion in the Romanian society and politics, by focusing specifically on the process of readjusting religious freedom in Romania after 1990. Although the regulation of religious life in accordance with international human rights principles was considered one of the cornerstones of the Romanian democracy, the replacement of the communist legal framework with a new one took more than 17 years and was accompanied by numerous tensions among the religious actors themselves, state institutions and civil society organizations. The analysis of the state of religious freedom two decades after the fall of the communism in Romania reveals ambivalent developments. Despite some undeniable signs of progress, there are still significant areas that require improvement. The most problematic aspects are the maintenance of the two-tier system and the financial dependence of the culte on the state.
Elizabeth A. Clark (J. Reuben Clark Law School) has posted Religions as Sovereigns: Why Religion is “Special” The abstract follows.
Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism theories and the values of (and concerns about) federalism that they identify and draws strong parallels with a range of theories of religious freedom, highlighting its similar values and potential weaknesses. This comparative endeavor highlights the powerful resonance of sovereignty talk in the religion and law field and suggests that sovereignty is part of the deep structure of our understanding of religious liberty.
Joseph S. Jenkins (U. of California, Irvine) has posted Copyright Law and Political Theology: Censorship and the Forebear’s Desire. The abstract follows. NB: The article is behind a paywall on JStor.
This historical exploration, treating limit moments of copyright law, illuminates correspondences among copyright, censorship, pacts between the sovereign and commercial profit seekers, and inheritance law. Relevant to all of these are powerful forebears’ desires for recognition, modeled on the theological pattern of the father God’s omnipotent Will. Failure to recognize the wide persistence of this premodern theological pattern–which contrasts considerably with the common view that copyrights main function is to incentivize the new–may result in faulty analysis of copyright law, including fair use.
The study begins with Henry VIII’s 1538 Proclamation, which initiates a nationwide book-licensing regime. The Proclamation is put into context with other concerns of Henry at that time. Additional moments treated in this study include: Venetian printing privileges in the late fifteenth century; the London Stationers’ Company as an incorporated mechanism suitable to the crown’s ideology-control projects; efforts by Ponsonby, Greville, and Walsingham to block a competitor’s licensing of a Sidney Arcadia manuscript; the intellectual property clause of the U.S. Constitution; Wordsworth’s later-in-life attempts to make endure eternally, through copyright, the atemporal moment of creation that arose from his early poetry; and Sonny Bono’s (and our own) surprising resemblance to Wordsworth. The conclusion urges joint consideration of copyright and inheritance-law policies.