Welcome to the Rutgers Journal of Law & Religion
The Rutgers Journal of Law and Religion was founded in 1999 and is committed to increasing legal scholarship focusing on the intersection of these two dynamic aspects of the human tradition – law and religion. As a print and online journal, our publication is globally accessible to numerous individuals and an active contributor to the growing conversation about law and religion among scholars, professionals and the general public.
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Features from our Current Issue
The Endorsement Test and Equal Status, Ross Astoria
Adherents of the endorsement test find it compelling because it is grounded in norms of political equality. They have not, however, sufficiently articulated the content of this political equality, often conflating it with the doctrine of equal protection. In this paper, political equality is understood in terms of equal status, the assurance that one’s competency to appear and participate in the public realms shall not be disabled or discounted because of one’s religious commitments. It is argued that, with appropriate modification, the endorsement test can be used to ensure that a state’s display of “religious symbols” do violate the norm of equal status. In conclusion, the modified endorsement test is applied and compared with a federal district court’s decision finding the display of the Ten Commandments in a county courthouse to be unconstitutional.
Pope Pius XI’s Extraordinary-But Undeserved-Praise of the American Supreme Court, David Upham, Ph.D., J.D.
In his 1929 encyclical, Divini Illius Magistri (On Christian Education), Pope Pius XI paid an extraordinary tribute to the Supreme Court of the United States, and more specifically, the Court’s interpretation of the Fourteenth Amendment in Pierce v. Soc’y of Sisters. In the course of affirming that parents have the primary right and duty to direct their offspring’s education, he quoted with approval from Justice McReynolds’s opinion in Pierce. Moreover, the Pope praised the Taft Court for its reliance on natural law in vindicating the natural rights of the family.
This article will explore the significance and validity of this praise. This article concludes that this tribute, while extraordinary, was simply unwarranted. Rather, the Taft Court evinced an increasing indifference, if not hostility, to natural law concepts — an indifference clear in Pierce itself, Buck v. Bell, and other cases.
In the course of the article, several claims are made and defended that may seem unconventional: namely, (1) that the Taft Court tacitly but firmly rejected the Court's prior natural-law jurisprudence, (2) that the Court's decision in Pierce and Buck v. Bell indicated this rejection, and (3) that Pierce significantly shaped the Court's subsequent due-process jurisprudence, including the contraction of due process in Buck v. Bell, and the expansion of due process through incorporation of certain rights of sexual and reproductive autonomy.
A CatholicPAC: Why the United States Catholic Conference of Bishops Should (Probably) Lose its 501(c)(3) Tax-Exempt Status, Jesse Ryan Loffler
This article discusses the relatively murky area of law prohibiting tax-exempt 501(c)(3) organizations from engaging in “substantial” lobbying or any politicking as applied to the United States Conference of Catholic Bishops (“USCCB”). One of the singular most powerful voices amongst the varied religious communities on a great number of issues, it is clear that the USCCB is engaged in shaping public policy at both the grassroots and highest levels of government. The question is: do their efforts fall afoul of the prohibition on substantial lobbying and/or politicking by tax-exempt entities? CatholicPac explores the law, discusses the USCCB’s efforts in a number of public policy areas, and concludes that under any interpretation of the tax code’s prohibitions and limitations, the USCCB most likely crosses the line and should lose its tax-exempt status.
Religion and the PPACA: An Analysis of Non-Secular Line Drawing Within the Health Insurance Mandate, Jeffery R. Mullen
The Patient Protection and Affordable Care Act may be constitutional, but does it fairly account for those opposed to the individual mandate for religious reasons? This note seeks to answer that question by exploring the language and legislative history of the Act’s two religious exemptions and how they will likely be applied to the Amish, Christian Science and Muslim denominations. It is argued that the Act’s non-secular line drawing is limited, perhaps too limited. Drawing on past experiences and practical alternatives, it is demonstrated that when religion and the law collide, as they so often do, it is not always necessary for one to be preeminent. The individual mandate colliding with religious opposition in the arena of healthcare presents a modern case study of how law and religion can coexist. At the very least, this note concludes that when the law and religion collide, the former should respect the latter.
Shaimos Burials: Why Religion Should Yield to the State’s Compelling Interest in Environmental Regulation and the Protection of Human Health, Allison N. Zsamba
This note explores the intersection between the Jewish practice of burying holy items and the government's compelling interest in solid waste regulation. It further explores the affects of illegal dumping on the environment as well as human health. The relevant law discussed includes the New Jersey Solid Waste Management Act, and the Religious Land Use and Institutionalized Persons Act. After tracing the evolution of the law at this intersection, the environmental and human health consequences implicated, and our nation's history of environmental regulation, it is concluded that the government is permitted to regulate the outward physical acts of religion.
Corporate Personhood and the First Amendment: A Business Perspective on an Eroding Free Exercise Clause, Kyle J. Weber
The scope of corporate rights has been debated since the nation’s founding. 200 years later, there remains no clear answer. While corporate speech has enjoyed strong protection, corporate religion rights have received far less attention. In the shadow of Emp’t Div., Dept. of Human Res. of Oregon v. Smith—denying strict scrutiny to religious exercise claims, religious adherents involved in small business have suffered. In particular, since small business owners are required to forgo certain constitutional rights when acting in their corporate capacity, they suffer from waning religious rights, especially because of uncertain corporate personality rights. This note argues that fading protection for religious claims must be restored, and corporate personhood must be clarified to protect the individuals acting on behalf of corporations.
Human Trafficking and the Church of Scientology: Why the Legislature Should Clarify and Expand the TVPA and the Impact it Would Have on the Church, John S. Yi
This note argues that the Forced Labor Statute within the Trafficking Victims Protection Act (“TVPA”) is limited in its scope and fails to offer adequate protection to a number of individuals. This argument is based on a Ninth Circuit ruling that two former Scientologists, the Headleys, had not made out a sufficient claim under the TVPA in their complaint against the Church of Scientology. Assuming that the allegations set forth by the Headleys are true, this note offers suggestions as to how the text of the TVPA should be clarified and expanded to include the experiences of the Headleys and others who are or have been similarly situated within the Church in order for the full intent of the statute to be realized.
Social Review Essay Never Again . . . What? Law, History, and the Uses of the Holocaust, Michael A. Livingston
The Holocaust is perhaps the defining event of the twentieth century, but its significance is a matter of continuing debate. Scholars have debated, among other topics, whether the Holocaust was a universal or a specifically Jewish tragedy; whether it was unique in character or shared key features with other genocides; and its relevance for the politics and policies of the modern State of Israel. Even the word itself is contested, with some questioning whether the term should be capitalized and others suggesting that it be replaced with a different name altogether.
This essay considers several recent books that deal with the issue of Holocaust memory, with a special emphasis on the role of law and legal institutions in framing the discussion. These include two books (by Alvin Rosenfeld and Peter Novick) that discuss the Holocaust in American culture; two others (by Idith Zertal and Tom Segev) that are primarily concerned with Israel; and one (by Robert Gordon) that focuses on Italy. The discussion is rounded out with one additional book (by David Fraser) about Law and the Holocaust and a further work (by Peter Beinart) that discusses American Jews and Israel with the Holocaust as a central theme. The essay concludes with the author’s thoughts about the Holocaust as a historical phenomenon and how we can avoid repeating it in the future.
Jackson, Donovan, and Targeted Killings: A Limited Defense, Trevor H. Taniguchi
The trials at Nuremberg are often raised as a primary progenitor of modern public international law, helping to establish that even the worst of evils deserves its day in court. Yet in the years since Nuremberg, the United States has utilized “targeted killings” as a means of political and military executions despite a near complete lack of due process. Here, it is reasoned that despite recent arguments condemning the practice, both Justice Robert Jackson and General William Donovan, members of the American prosecution at Nuremberg, would have condoned limited use of targeted killings in a wartime context owing to Jackson’s overriding concerns for judicial legitimacy and Donovan’s pragmatic military concerns over extracting the most prominent and entrenched war criminals.