Senate Resolution Says "No Religious Test" Clause Bars Disqualification For K of C Membership

On Wednesday, the U.S. Senate passed Senate Resolution 19 by unanimous consent.  The Resolution was introduced by Nebraska Sen. Ben Sasse in response to questions raised in connection with last month's Judiciary Committee hearing on the nomination of Brian C. Buescher for a seat on the United States District Court for the District of Nebraska. At that hearing, Senators Mazie Hirono (D-HI) and Kamala Harris (D-CA) questioned whether Buescher's membership in the Knights of Columbus would bias his consideration on issues such as abortion rights and same-sex marriage. (Background). Resolution 19 after a lengthy Preamble, provides:

That it is the sense of the Senate that disqualifying a nominee to Federal office on the basis of membership in the Knights of Columbus violates clause 3 of article VI of the Constitution of the United States, which establishes that Senators ‘‘shall be bound by Oath or Affirmation, to support th[e] Constitution’’ and ‘‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States’’.

National Catholic Register reports on the Resolution.

School Counselor's Employment Agreement Sufficient To Invoke Ministerial Exception Doctrine

In Fitzgerald v. Roncalli High School, Inc., (SD IN Sept. 30, 2022), an Indiana federal district court invoked the ministerial exception doctrine to dismiss a suit brought by Michelle Fitzgerald, a Catholic high school guidance counselor who was fired after the school and the church that oversaw it learned that she was in a same-sex marriage. The court said in part:

Fitzgerald argues that Roncalli never entrusted her with religious teaching duties by raising numerous genuine factual disputes over what exactly she did at the school. She contends the record demonstrates that Roncalli entrusted her in description alone. She never engaged in religious teaching, nor did Roncalli expect her to....

[However,] Fitzgerald's employment agreement and Roncalli's description of Fitzgerald's expected duties are, alone, sufficient to resolve this case because those documents make clear that Roncalli entrusted Fitzgerald to teach the Catholic faith and carry out Roncalli's religious mission....

All this indicates Roncalli entrusted guidance counselors like Fitzgerald to convey the Church's message in addition to their secular duties. And under Seventh Circuit precedent, Fitzgerald's non-performance of these entrusted duties makes her "an underperforming minister" who may be removed pursuant to the ministerial exception.

Washington Examiner reports on the decision.

Louisiana Governor's State-Paid Trips To Churches Raise Controversy

Controversy between Louisiana Governor Bobby Jindal and his critics has been escalating since an article in the New Orleans Advocate a week ago disclosed that at least 15 times this year Jindal used his state helicopter to attend church services around the state. Jindal says he also uses the occasssions to talk with local officials. (Last year, Americans United criticized similar visits by Jindal.) Rev. Welton Gaddy, president of the Interfaith Alliance, but also pastor of a Baptist Church in Monroe, Louisiana, this week wrote Jindal complaining about the taxpayer-funded trips. (Full text of letter.) He wrote in part: "For the sake of religion, please do not politicize houses of worship in Louisiana and rob those of us who minister there of the credibility that allows our faith to be a healing force in our state and across our land."

ABP reports that a Jindal spokesperson reacted to Gaddy's letter by saying : [The Interfaith Alliance] opposes putting crosses up in honor of fallen policemen, has attacked the National Day of Prayer and advocates for same-sex marriage, so it's not surprising that they are attacking the governor for accepting invitations to speak at Louisiana churches." [Thanks to Blog from the Capital for the lead.]

Recent Articles Of Interest

From SSRN:

• Jeff Redding, Proposition 8 and the Future of American Same-Sex Marriage Activism, (Nexus, Vol. 14, p. 113, 2009).
• Anne Twomey, The Australian Crowns - Changing the Rules of Succession, (Quadrant, Vol. 53, No. 6, pp. 44-47, 2009).
• Barry McDonald, Getting Beyond Religion as Science: 'Unstifling' Worldview Formation in American Public Education, (Washington and Lee Law Review, Vol. 66, 2009).
• Amy Lavine & Patricia Salkin, God and the Land: A Holy War Between Religious Exercise and Community Planning and Development, (Albany Government Law Review, Vol. 2, 2009).

From SmartCILP:

• Donald Kerwin, Toward a Catholic Vision of Nationality, 23 Notre Dame Journal of Law, Ethics and Public Policy 197-207 (2009).
• Craig W. Mandell, Tough Pill to Swallow: Whether Catholic Institutions Are Obligated Under Title VII to Cover Their Employees' Prescription Contraceptives, 8 University of Maryland Law Journal of Race, Religion, Gender & Class 199-239 (2008).
• Lucian C. Martinez, Jr., Sovereign Impunity: Does the Foreign Sovereign Immunities Act Bar Lawsuits Against the Holy See in Clerical Sexual Abuse Cases?, 44 Texas International Law Journal 123-155 (2008).
• Nicholas A. Mirkay, Losing Our Religion: Reevaluating the Section 501(c)(3) Exemption of Religious Organizations That Discriminate, 17 William & Mary Bill of Rights Journal 715-764 (2009).
• Mark Strasser, Repudiating Everson: On Buses, Books, and Teaching Articles of Faith, 78 Mississippi Law Journal 567-636 (2009).

Release of Tapes of Prop 8 Trial Again On Hold

In the latest skirmish over California's Proposition 8-- the ballot measure that barred same-sex marriage-- a panel of the U.S. 9th Circuit Court of Appeals yesterday issued a stay pending appeal of a district court order that authorized release of digital recordings of the original trial on Prop 8's constitutionality. (See prior posting.) Here full text of the 9th Circuit's order in Perry v. Brown. AP reported on court's action.

Recent Articles of Interest

From SSRN:

• Perry Dane, Jury Nullification: Features, Bugs, and the Possibility of Granular Law, (Journal of Law Culture and the Humanities, Forthcoming).
• Stephen R. Munzer, Examining Nontherapeutic Circumcision, (28 Health Matrix 1 (2018)).
• Leora F. Eisenstadt, Enemy and Ally: Religion in Loving v. Virginia and Beyond, (Fordham Law Review, Vol. 86, No. 2659, 2018).
• Prakash Shah, Secularism's Threat to Tradition: A Reading of Europe, India and the Limits of Secularism, (Queen Mary School of Law Legal Studies Research Paper No. 277/2018).
• Paul Barker, Vocation, Expressive Conduct, and Religious Liberty, (January 16, 2018).
• Abadir Ibrahim, Religion-State Identification and Religious Freedom in Ethiopia, (Pieter Coertzen, M. Christian Green, and Len Hansen (eds.) Religious Freedom and Religious Pluralism in Africa: Prospects and Limitations (2016)).
• Nuna Zekić, An Open and Diverse European Union?, (Tilburg Law Review, 22 (2017), 259-266).
• Dallan Flake, Religion as Key to Protecting Transgender Employees From Discrimination, (May 15, 2018).
• Johnny Rex Buckles, Unashamed of the Gospel of Jesus Christ: On Public Policy and Public Service by Evangelicals, (41 Harv. J.L. & Pub. Pol'y 813 (2018)).
• Blaine Hutchison, Protecting Religious Pluralism: How the Liberty that Supports Same-Sex Marriage Protects Religious Convictions, (Regent University Law Review, Vol. 30, No. 2, 2018).

From SSRN (Islamic Law):

• Abdel-Hameed M. Bashir, Reducing Poverty and Income Inequalities: Current Approaches and Islamic Perspective, (Journal of King Abdulaziz University: Islamic Economics, Vol. 31, No. 1, 2018).
• Samantha Bielen, Peter Grajzl & Wim Marneffe, Blame Based on One's Name? Extralegal Disparities in Criminal Conviction and Sentencing, (May 26, 2018).
• Tanya Monforte, Broad Strokes and Bright Lines: A Reconsideration of Shari'a Based Reservations, (May 8, 2018).
• Fajiri Muhammadin & Hanindito Danusatya, De-Secularizing Legal Education in Indonesian Non-Islamic Law Schools: Examining the ‘Introduction to Jurisprudence’ Textbooks on the ‘Norm Classification’ Chapter, (Ulul Albab: Jurnal Studi dan Pemikiran Hukum Islam, Vol. 1, No. 2 (2018)).
• Munawar Iqbal, Poverty, Inequalities and the Perceptions on Distributive Justice, (Journal of King Abdulaziz University: Islamic Economics, Vol. 31, No. 1, January 2018).
• Asad Zaman, An Islamic Approach to Inequality and Poverty, (Journal of King Abdulaziz University: Islamic Economics, Vol. 31, No. 1, January 2018).
• Aaron Z. Pitluck & Adhikari Shikshya, Islamic Banking and Finance in the Global North: Secular Incubators, Elementary Accommodation and Strategic Negligence, (in Mark Woodward and Ronald Lukens-Bull (eds). Handbook of Contemporary Islam and Muslim Lives. Springer, Forthcoming).
• Salman Syed Ali, Issues Involved in the Proposal of ‘A Global Currency to Stabilize the Monetary System, (Journal of King Abdulaziz University: Islamic Economics, Vol. 30, No. 2, July 2017).
• Ihsan Yilmaz, Semi-Official Turkish Muslim Legal Pluralism: Encounters between Secular Official Law and Unofficial Shari’a, (in A. Possamai et al. (eds.), The Sociology of Shari’a: Case Studies from around the World, Boundaries of Religious Freedom: Regulating Religion in Diverse Societies (2015)).

Episcopalian Schism Continues To Generate Litigation

Litigation involving break-away Episcopal congregations continues. In Milwaukee (WI), Episcopal Bishop Steven A. Miller says the Diocese will sue to retain the property of St. Edmund's Episcopal Church. Last month, the parish voted overwhelming to leave The Episcopal Church and affiliate with the more conservative Convocation of North American Anglicans. (Virtue Online, 1/8). St. Edmonds sent a strongly worded letter to Bishop Miller announcing their decision.

Meanwhile, according to Virtue Online (1/10), in Binghamton, NY a state trial court has ruled that the property of Church of the Good Shepherd belongs to the Episcopal Church, and not to the parish that broke away when the Diocese began to approve same-sex marriage. Yesterday's Modesto (CA) Bee analyzes why schisms in the Presbyterian Church have been less litigious than those among Episcopalians.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, Smith in Theory and Practice, (Cardozo Law Review, Vol. 32, No. 2055, 2011).
• Steven Aiello, Findings on Religious Freedom in Egypt, (December 21, 2010).
• Bernard M. Levinson and Joshua A. Berman, The King James Bible at 400: Scripture, Statecraft, and the American Founding, (The History Channel Magazine, pp. 1-11, November 2010).
• John M. Finnis, Religion and Public Reasons: Introduction, (John M. Finnis, Religion and Pulbic Reasons: Collected Essays, Vol. V, Oxford University Press, 2011).
• Yossi Nehushtan, The Links between Religion and Intolerance, (Philosophy and Theology, Vol. 23, No. 1, pp. 91-132, 2011).
• Christopher J. Eberle, Religion, Respect, and War: A Critical Examination of the Standard View on Religion and Coercion, (November 4, 2010).
• Yishai Blank, The Reenchantment of Law, (Cornell Law Review, Vol. 96, p. 633, 2011).
• Richard L. Cupp, Seeking Redemption for Torts Law – A Review of ‘Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse’ by Timothy D. Lytton (Harvard University Press 2008), (Journal of Law and Religion, Vol. 27, 2011).

From SmartCILP and elsewhere:

• Jana R. McCreary, Tell Me No Secrets: Sharing, Discipline, and the Clash of Ecclesiastical Abstention and Psychotherapeutic Confidentiality, 29 Quinnipiac Law Review 77-122 (2011).
• Mark Strasser, Public Policy, Same-Sex Marriage, and Exemptions for Matters of Conscience, [Abstract], 12 Florida Coastal Law Journal 135-161 (2010).
• Leonard A. Leo, Felice D. Gaer and Elizabeth K. Cassidy, Protecting Religions from “Defamation”: A Threat to Universal Human Rights Standards, 34 Harvard Journal of Law and Public Policy 769 (2011).

Recent Articles of Interest

From SSRN:

• Rahman Apalara, Striking a Balance: Freedom of Expression and the Prohibition of Hate Speech and Offensive Remarks, (September 11, 2017).
• Nadia N. Sawicki, A Common Law Duty to Disclose Conscience-Based Limitations on Medical Practice, (Chapter 13 in Law, Religion, and Health in the United States (Lynch, Holly Fernandez, I. Glenn Cohen, and Elizabeth Sepper eds., 2017).
• Nomi Maya Stolzenberg, From Eternity to Here: In Search of the Origins of Secularism, (USC Legal Studies Research Papers Series No. 17-20 (2017)).
• Adam J. White, Justice Scalia's Soulcraft as Statecraft, (June 15, 2017).
• Noa Ben-Asher, Faith-Based Emergency Powers, (Harvard Journal of Law and Gender, Forthcoming).
• Steven J. Heyman, The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty, (Marquette Law Review, Forthcoming).
• Terri Lynn Helge, Rejecting Charity: Why the IRS Denies Tax Exemption to 501(C)(3) Applicants, (Pittsburgh Tax Review, Vol. 14, No. 1, 2016).

From SSRN (Non-U.S. Law):

• Ming-Sung Kuo & Hui-Wen Chen, The Brown Moment in Taiwan: Making Sense of the Law and Politics of the Taiwanese Same-Sex Marriage Case in a Comparative Light, (Columbia Journal of Asian Law, Forthcoming).
• Mehdi Shadmehr, Khomeini's Theory of Islamic State and the Making of the Iranian Revolution, (September 16, 2017).
• Jikon Lai, Lena Rethel & Kerstin Steiner, Conceptualizing Dynamic Challenges to Global Financial Diffusion: Islamic Finance and the Grafting of Sukuk, (Review of International Political Economy, 2017).
• Aklavya Anand & Shailesh Kumar, Public Domain of Personal Laws: An Inquiry from the Perspectives of Conflict of Interests and Identities, (NLSIU Journal of Law and Public Policy, Volume IV, Special Issue, 2017).

From SmartCILP:

• Wim Decock, Law, Religion, and Debt Relief: Balancing Above the 'Abyss of Despair' in Early Modern Canon Law and Theology, [Abstract], 57 American Journal of Legal History 125-141 (2017).
• Anton Sorkin, Graduation Ceremonies: A Prayer for Balancing Sponsorship and Censorship, 41 Southern Illinois University Law Journal 345-402 (2017).

Recent Articles of Interest

From SSRN:

• Thomas Charles Berg, What Same-Sex Marriage and Religious Liberty Claims Have in Common, (Northwestern Journal of Law and Social Policy, Forthcoming).
• Julie A. Oseid, The Power of Metaphor: Thomas Jefferson’s 'Wall of Separation between Church & State', (U of St. Thomas Legal Studies Research Paper No. 10-14, 2010).
• Thomas Charles Berg, Religious Displays and the Voluntary Approach to Church and State, (Oklahoma Law Review, Forthcoming).
• T. John O'Dowd, Pilate’s Paramount Duty: Constitutional 'Reasonableness' and the Restriction of Freedom of Speech and Assembly, (Comparative Constitutionalism In South Asia, Khilnani, Sunil, Raghavan, Vikram and Thiruvengadam, Arun, eds., Oxford Univ Press India, 2010).
• Richard W. Garnett, Religious Liberty, Church Autonomy, and the Structure of Freedom, (Christianity and Human Rights : An Introduction, John Witte, Jr. and Frank S. Alexander eds., pp. 226-238, Cambridge University Press, 2010).
• Nathan B. Oman, Bargaining in the Shadow of God’s Law: Islamic 'Mahr' Contracts and the Perils of Legal Specialization , (Wake Forest Law Review, Forthcoming).
• Yossi Nehushtan, Female Segregation for Religious Justifications: The Unfortunate Israeli Case, (Droit et Religions, Vol. 4, pp. 441-459, 2009-2010).
• Arnold H. Loewy, Intelligently Designing a Course in Intelligent Design, (February 22, 2010).
• John A. Humbach, Free Will Ideology: Experiments, Evolution and Virtue Ethics, (March 25, 2010).

From SmartCILP and elsewhere:

• Molly Greene, Goodbye to the Despot: Feldman on Islamic law in the Ottoman Empire, (Reviewing Noah Feldman, The Fall and Rise of the Islamic State), 35 Law & Social Inquiry 219-242 (2010).
• Journal of Law and Religion, Vol. XXV, No. 1 (2009-10) has recently appeared.
• Journal of Church & State, Vol. 51, No. 4 (Autumn 2009) has recently appeared.

Ballot Measures to Watch in Tuesday's Elections

Tuesday's elections around the country will feature an unusually large number of ballot measures of particular interest to Religion Clause readers. According to Ballotpedia, there will be eleven proposals on abortion rights:

• Arizona Proposition 139
• Colorado Amendment 79
• Florida Amendment 4
• Maryland Question 1
• Missouri Amendment 3
• Montana CI-128
• Nebraska Initiative 434 and Initiative 439 (competing proposals)
• Nevada Question 6
• New York Proposal 1 (also includes sexual orientation, gender identity and other issues)
• South Dakota Constitutional Amendment G

Voters in three states will cast ballots on repeal of now unenforceable bans on same-sex marriage: California, Colorado, Hawaii. The California proposal would also affirmatively guarantee the right to marry.

Colorado proposal would guarantee the right to school choice and parental control of their children's education. A Kentucky proposal would allow state funding for students in non-public schools. A Nebraska referendum asks voters whether to repeal a state law providing for an educational scholarship program for students in non-public schools.

American United's magazine Church & State discusses Tuesday ballot measures relating to church-state separation that will be presented to voters in eleven states.

Prop 8 Opponents Say CLS v. Martinez Supports Them

Earlier this month, lawyers made their closing argument in Perry v. Schwarzenegger, a federal constitutional challenge to California's Proposition 8 that bans same-sex marriage. A decision has not yet been handed down in the case. (See prior posting.) Plaintiffs, who claim that gays and lesbians are a protected class for constitutional purposes, say language in Monday's Supreme Court decision in Christian Legal Society v. Martinez supports their position. The Recorder yesterday reported that lawyers for those challenging Proposition 8 wrote a letter (full text) to U.S. District Judge Vaughn Walker, bringing the Supreme Court's language to his attention. The letter reads in part:

In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: "Our decisions have declined to distinguish between status and conduct in this context."

Roy Moore Wins Republican Runoff In Alabama

Former Alabama Supreme Court Chief Justice Roy Moore won yesterday's Alabama Republican U.S. Senate primary runoff, prevailing over Luther Strange who has served in the U.S. Senate for six months.  Moore won by a vote of 55% to 45%. (Official results).

As reported by CNN:

Moore now faces Democratic nominee Doug Jones in a December general election in the race to replace Attorney General Jeff Sessions.

Moore's win Tuesday night will thrust his long history of homophobic and racially tinged remarks into the spotlight.

He has campaigned on a platform of placing Christianity at the center of public life. In 2003, Moore was removed as state Supreme Court chief justice for refusing to take down a Ten Commandments monument. He was re-elected to the job, and then ousted again in 2016, when he refused to follow the US Supreme Court's ruling legalizing same-sex marriage.

Though Alabama is a solidly red state, Democrats hope Jones, a former federal prosecutor who rose to prominence by leading the government's case against two perpetrators of the 16th Street Baptist Church bombing, can make the race competitive.

Here is additional background on Moore from Wikipedia.

Moore Tweeted from his victory rally: "There's one person you don't see on this stage that's done more for my campaign than anybody, and that's almighty God."  In a second Tweet, he added: "We have to return to the acknowledgment of God, and the United States Constitution."

Britain's Court of Appeals: Teacher Wrongfully Terminated for Personal Facebook Postings Reflecting Christian Beliefs on Sexuality

In Higgs v. Farmor's School, (EWCA, Feb. 12, 2025), Britain's Court of Appeal held that the dismissal of a teacher because of posts on her personal Facebook page reflecting her Christian-based objections to schools teaching children about same-sex marriage and gender fluidity constituted unlawful discrimination on the ground of religion or belief in violation of the Equality Act 2010. The court said in part:

The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd” which were liable to damage the school’s reputation in the community: the posts had been reported by one parent and might be seen by others.  However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.

Lord Justice Falk filed a brief concurring opinion.

Recent Articles of Interest

From SSRN:

• Frederick Mark Gedicks, Custom, Preference, or Nature? Mormon Polygamy, Same-Sex Marriage, and Natural Law Theory, (In Queer and Religious Alliances: Friendship in Family Law and Beyond (Anthem Press, forthcoming 2022)).
• Brady Earley, Contagions, Congregations, and Constitutional Law: Comparing Religious Freedom in the 1918 and 2020 Pandemics, (August 20, 2021).
• Brady Earley, Sacred Ground: Unearthing Religious Freedom of African American Slaves, (September 9, 2021).
• Brady Earley, Religious Freedom 'with Chinese Characteristics', (August 20, 2021).
• Kyler Palmer, Bostock, Backlash, and Beyond the Pale: Religious Retrenchment and the Future of LGBTQ Antidiscrimination Advocacy in the Wake of Title VII Protection, (DePaul Journal for Social Justice, Forthcoming Winter 2021).
• Perry Dane, Robert Cover and Legal Pluralism - Redux, (October 17, 2021).
• Caroline Mala Corbin, The Pledge of Allegiance Revisited: Speech Rights vs Parental Rights, (Indiana Law Journal, Forthcoming).

From SSRN (Abortion Rights):

• Adam Lamparello, Charles MacLean & Brian Owsley, Amicus Brief of Professors Lamparello, MacLean, and Owsley in favor of Petitioners in Whole Woman's Health v. Jackson, US Supreme Court No. 21-463, (October 26, 2021).
• Gary J. Simson & Rosalind Simson, Rescuing Roe, (N.Y.U. Journal of Legislation and Public Policy, volume 24, issue 2, Forthcoming Winter 2022).
• I. Glenn Cohen, Eli Y. Adashi & Lawrence O. Gostin, The Supreme Court, the Texas Abortion Law (SB8), and the Beginning of the End of Roe v Wade?, (The Journal of the American Medical Association Health Forum, published online September 23, 2021, at E1-E2).

From SSRN (Non-U.S. Law):

• Abdulmumini Adebayo Oba & Ismael Ismael, Revisiting the Causes of Delay in the Adjudication of Islamic Personal Law Cases in Nigerian Jurisprudence, (Nnamdi Azikiwe University Journal of International Law and Jurisprudence Vol. 11 No. 1, 2020, pp. 1-14).
• Melanie Levy, Surrogacy and Parenthood: a European Saga of Genetic Essentialism and Gender Discrimination, (Michigan Journal of Gender & Law, Forthcoming).
• Assaf Likhovski & Aviram Shahal, The History of Israeli Pre-State Constitutionalism, (The Oxford Handbook of the Israeli Constitution, Aharon Barak, Barak Medina and Yaniv Roznai (eds.) (Forthcoming)).
• Ismael Ismael & Abdulmumini Adebayo Oba, Judicial Practice in Distribution of Inheritance (Mīrāth) in Islamic Courts in Nigeria,  (De Jure: Jurnal Hukum dan Syari’ah Vol. 11 No. 1, 2019, pp. 1-22).

From elsewhere:

• Columbia Law School, Law, Rights and Religion Project, The Southern Hospitals Report: Faith, Culture, and Abortion Bans in the U.S. South, Nov. 2021).
• U.S. Holocaust Memorial Museum, “To Make Us Slowly Disappear” The Chinese Government’s Assault on the Uyghurs, (Nov. 2021).

Recent Articles and Books of Interest

From SSRN:

• Jean L. Cohen, Freedom of Religion, Inc.: Whose Sovereignty?, (October 19, 2015).
• Jean L. Cohen, Pluralism, Group Rights, and Corporate Religion: Reply to Critics, (Netherlands Journal of Legal Philosophy 2015 (44) 3).
• Carlos A. Ball, Sexuality, Third-Party Harms, and the 'Live-and-Let-Live' Approach to Religious Exemptions, (Law, Culture, and the Humanities, Forthcoming).
• Jessica M. Silbey, Picturing Moral Arguments in a Fraught Legal Arena: Fetuses, Photographic Phantoms and Ultrasounds, (Georgetown Journal of Gender and the Law, Vol. 16, No. 3, 2015).
• Serena Mayeri, Marital Supremacy and the Constitution of the Nonmarital Family, (California Law Review, Vol. 103, p. 1277, 2015).

From SSRN (Non-U.S. Law)

• Melissa Crouch, Negotiating Legal Pluralism in Court: Fatwa and the Crime of Blasphemy in Indonesia, (Gary Bell and Michael Dowdle (eds) Festschrift in Honour of MB Hooker. Singapore: ISEAS, Forthcoming).
• Virgemarie A. Salazar, The Caliphate in the Era of Nation-States, (October 7, 2014).
• Andrew F. March, Islamic Philosophy (Falsafa) and Law, (The Oxford Handbook of Islamic Law, eds., Anver M. Emon and Rumee Ahmed (Forthcoming)).
• Tim Cunningham, Monitoring Equality - Reflexive Regulation, Planning Systems, and the Role of Equality Law: Lessons from Northern Ireland, (The Equal Rights Review, Vol. Fourteen, (2015)).
• Ifran Hossain Mollah, Hindu Women's Right to Property at the Crossroads: The Tension between Human Rights and Cultural Relativism, (Journal of Society and Change Volume VIII, No. IV, 1915).
• Mauro Gatti, Blasphemy in European Law, ( In M. Díez Bosch and J. Sànchez Torrents (eds), On Blasphemy (Blanquerna, 2015), pp. 49-64).
• Catherine J. Iorns Magallanes, Maori Cultural Rights in Aotearoa New Zealand: Protecting the Cosmology that Protects the Environment, (21:2 Widener Law Review 273-327, 2015).

From SmartCILP:

• Eric Apar, The Perils of Doubt: Happiness, Epistemological Certainty, and Free Exercise Rights, 49 Valparaiso University Law Review 155-199 (2014).
• Angela C. Carmella, After Hobby Lobby: The "Religious For-Profit" and the Limits of the Autonomy Doctrine. 80 Missouri Law Review 381-449 (2015).
• Henry L. Chambers Jr., The Problems Inherent In Litigating Employer Free Exercise Rights, 86 University of Colorado Law Review 1141-1171 (2015).
• Donald H.J. Hermann, Defending the Public Good and Traditional Society: Non-Scriptural Religious Objections to Same-Sex Marriage, 49 Valparaiso University Law Review 1-37 (2014).
• Audra L. Savage, Turning the Other Cheek: The Persecution of the Christian Minority, 26 Florida Journal of International Law 373-397 (2014).

Recent Books:

• Stephen Monsma & Stanley Carlson-Thies, Free To Serve: Protecting the Religious Freedom of Faith Based Organizations, (Brazos Press, Oct. 2015).
• Jonathan Sacks, Not In God's Name: Confronting Religious Violence,  (Schocken, Oct. 2015), reviewed by Deseret News.

Rector's Suit Against Bishop Opens In Pennsylvania Today

Today's Philadelphia Inquirer reports on an unusual trial that begins today in a Pennsylvania state trial court. Rev. David Moyer, former rector of Good Shepherd Episcopal parish in Rosemont (PA), is suing Episcopal Bishop Charles E. Bennison Jr. for fraud and deception allegedly used to remove Moyer as a priest six years ago. Moyer is a conservative, opposed to same-sex marriage and ordination of gays and women. Moyer and several other conservative rectors barred the liberal Bishop Bennison from preaching or administering sacraments in their parishes, arguing that Bennison's views on homosexuality were unbiblical and close to heresy. In response, Bennison "inhibited" Moyer, and in 2002 removed him, and denied him a church trial on the removal saying that Moyer had "broken communion" with the Episcopal Church by accepting (and then refusing) appointment as a bishop in the conservative Anglican Church in America. While civil courts usually refuse to adjudicate these kinds of internal church determinations, Common Pleas Court Judge Thomas Branca held otherwise last year after Moyer argued that he lacked other remedies since he had been improperly denied a church trial.

Meanwhile Bennison himself is facing possible removal on charges that 30 years ago he failed to take action and concealed information when his older brother John--then a youth minister-- sexually abused a teenage girl in his parish. [Thanks to James Maule via Religionlaw for the lead.]

UPDATE: As the trial reached its third day on Wednesday, Bennison's lawyers asked the court to dismiss the case on First Amendment grounds. Judge Joseph Smyth who is presiding at trial said that perhaps the case does not belong in civil court, but decided that he should honor the rulings to the contrary by Judge Thomas Branca and complete the trial. According to the Philadelphia Inquirer, Smyth said he anticipated important appellate issues would be raised.

Recent Articles of Interest

From SSRN:

• Paul Benjamin Linton, Religious Freedom Claims and Defenses Under State Constitutions, (June 20, 2013).
• Muhammad Munir, Islamizing Custom or Customizing Islam: The Case of Female Genital Mutilation or Female Circumcision, (June 25, 2013).
• David B. Oppenheimer, Alvaro Oliveira,& Aaron Blumenthal, Religiosity and Same-Sex Marriage in the United States and Europe, (June 29, 2013).
• Samuel Flaks, Law, Religion, and Pluralism: The Thought and Experiences of Nathan Isaacs, (Touro Law Review, Vol. 29, No. 2, 2013).
• Michale J. Perry, Freedom of Conscience as Religious and Moral Freedom, (Journal of Law and Religion, Forthcoming).
• Haider Ala Hamoudi, Repugnancy in the Arab World, (Willamette Law Review, Vol. 48:427, 2012).
• Mark P. Franke, Ijara Under the Bankruptcy Code, (June 20, 2013).
• Dr. Julius B. Bertillo & Dr. Josefina Bertillo Salando, Principles and Practice of Islamic Finance Systems, (June 23, 2013).
• Dr. Julius B. Bertillo, Dr. Josefina Bertillo Salando & Dr. Florabel Ortega Nieva, Global Impact of Islamic Financial Systems in the Arab World, (June 30, 2013).

From SmartCILP:

• Allison M. Dussias, Friend, Foe, Frenemy: The United States and American Indian Religious Freedom, 90 Denver University Law Review 347-431 (2012).

En Banc Rehearing Sought In Christian Student's Challenge To College's Policy

A petition for an en banc rehearing by the 9th Circuit in Lopez v. Candaele was filed last week. (Full text of petition.)  In the case, a panel of the 9th Circuit held that a Christian student at Los Angeles City College lacks standing to challenge the school's sexual harassment policy because there was never any credible threat that the policy would be used to discipline the student despite a speech professor's objections to the student's religious opposition to same-sex marriage. (See prior posting.) The rehearing request argues that the panel holding is at odds with decisions in the 3rd and 6th Circuits which permit a challenge to overbroad statutes that chill speech without a threat of enforcement. Alliance Defense Fund issued a press release announcing the filing of the rehearing request.

Recent Articles of Interest

From SSRN:

• Giovanna Lanni & Alessandra Impellizzeri,  Recenti sviluppi costituzionali in Egitto ed Israele: la tensione fra democrazia e religione come costante del discorso costituzionale in Medio Oriente (Recent Constitutional Developments in Egypt and Israel: The Tension between Religion and Democracy as a Constant of the Constitutional Discourse in the Middle East), (October 23, 2013).
• Wilson Ray Huhn, Slaves to Contradictions: 13 Myths that Sustained Slavery, (November 6, 2013).
• Dian Kartika Rahajeng, The Role of Islamic Banking System as the Milestone Towards Indonesia Micro Economy Development: A Financial Reports Approach, (September 12, 2013).
• Ahmed Parvez, Corporate Governance and Ethics of Islamic Finance Institutions, (Journal of Islamic Economics, Banking and Finance, Forthcoming).
• Brynne Alexis Sharafi, American Multiculturalism, French Universalism, Antiblackness, and the French Headscarf Ban, (November 4, 2013).

From SmartCILP:

• Mark J. Chadsey, Abraham Baldwin and the Establishment Clause, 51 Journal of Catholic Legal Studies 1-40 (2012).
• Seth R. Payne, Mormonism and Same-Sex Marriage: Theological Underpinnings and New Perspectives, [Abstract] 51 Journal of Catholic Legal Studies 41-53 (2012).
• Rev. John A. Perricone, The Relation Between Justice and Love In the Natural Order, [Abstract], 51 Journal of Catholic Legal Studies 55-75 (2012).