John Adenitire, Protecting Solitary Beliefs Against Indirect Discrimination, 50 Indus. L.J. 196 (2021)
This article argues that the requirement of group disadvantage in indirect belief discrimination is incompatible with the human right to freedom of thought, conscience and religion. The latter protects sincerely held beliefs even if they are not shared by others or part of group orthodoxy. Consequently, the group disadvantage requirement in indirect belief discrimination ought to be interpreted away under section 3 HRA. Doing so, it is argued, does not give an unfair advantage to beliefs over other aspects of personal identity and complies with the legal injunction against judicial involvement in theological or philosophical disputes. The article concludes by arguing that, in light of the UK case law, imposing a requirement of group disadvantage is likely to pose a more significant barrier to secular philosophical beliefs than to religious ones. In light of an understanding of secularism that requires equal treatment of religious and deeply held secular beliefs, it is imperative that such a barrier be dispensed with.
Henry Amoroso, Paula Alexander Becker, and Evan Weiss, A Social Contract: The Doctrine of Unconscionability and its Relation to Social Progress, 28 Cardozo J. Equal Rts. & Soc. Just. 51, (2021)
The current structure of American contract law may limit the availability of adequate remedies for citizens within certain socioeconomic strata who, in the formation of a contract, often experience an asymmetry of information, financial resources, and lack what is broadly termed social capital. This paper further argues that this population might be better served by expanding how the court interprets and applies the doctrine of unconscionability through a reexamination of the foundational principles that led to its codification in the 1950s in the Uniform Commercial Code. Throughout this paper, I will also consider how several foundational principles of Catholic Social Teaching closely align with the foundational principles of American law and unconscionability, namely: solidarity, subsidiarity, a clarified accounting of freedom and equality, and, most importantly, the absolute dignity of the human person. By coming to a better understanding of these foundational principles shared across the American legal and Catholic intellectual traditions, we will be better suited to judge the appropriate application of the doctrine of unconscionability itself. Applications are made to living wage and guaranteed basic income initiatives.
Mark Bell, Labour Rights and the Catholic Church-the International Labour Organisation, the Holy See and Catholic Social Teaching by Paul Beckett (Abingdon: Routledge, 2021, Pp Xii + 281, Isbn 978 0 367 55633 4), 51 Indus. L.J. 219 (2022)
Paul Beckett's fascinating book reveals an ethical and institutional relationship between the ILO and the Catholic Church. He sustains his argument that their links, both historical and contemporary, are neglected in much of the existing literature. He presents a body of evidence that shows considerable interaction between the ILO and Catholicism, whether this is through Christian trade unions, faith-based groups, influential individuals, or relationships with the Holy See. It is more difficult to evaluate the extent to which this shaped the ILO at its inception or how much it does so in its present day endeavours. Beckett certainly shows that it was formative in the early period and that there is an ongoing relationship characterised by mutual influence. The Church's teaching on the dignity of work offers an ethical foundation for labour rights, which is readily accessible to secular reasoning. The ILO's activities have helped forge a contemporary understanding of what constitute universal labour rights that--at a high level--are consonant with the Church's moral tradition and have offered an institutional framework that the Church can endorse to the world. More broadly, this original book illustrates the importance of labour law scholarship engaging with all dimensions to the relationship between religion and the workplace. While conflicts can and do arise, these need to be balanced by a recognition of the quieter ways in which faith can play a positive role in supporting labour rights.
Nathan S. Chapman, Forgotten Federal-missionary Partnerships: New Light on the Establishment Clause, 96 Notre Dame L. Rev. 677 (2020)
Americans have long debated whether the Establishment Clause permits the government to support education that includes religious instruction. Current doctrine permits states to do so by providing vouchers for private schools on a religiously neutral basis. Unlike most Establishment Clause doctrines, however, the Supreme Court did not build this one on a historical foundation. Rather, in cases from Everson v. Board of Education (1947) toEspinoza v. Montana Department of Revenue (2020), opponents of religious-school funding have claimed American history supports a strict rule of no-aid. As the government-missionary partnerships narrow the scope of the objections to religious assessments, they likewise narrow the scope of the historical support for taxpayer standing under the Establishment Clause. The history certainly supports the notion that there is a constitutionally cognizable harm in forcing taxpayers to pay tithes, even to their own churches; but that history dissolves when applied to using general revenue to fund the provision of public services, even by religious organizations. There may be prudential [*746] reasons to conclude that taxpayers should have standing to challenge governmental support for religious instruction, but they are not rooted in nonestablishment norms of the early republic. Yet the Court and scholars have largely ignored a practice that casts light on the historical understanding of the Establishment Clause: from the Revolution through the Civil War, the federal government partnered with missionaries to educate Native American students. At first ad hoc, the practice became a full-scale program with the Civilization Fund Act of 1819. Presidents Washington, Jefferson, Madison, and Monroe all actively participated. Intriguingly, no one objected to the partnerships on constitutional grounds. This is the first Article to place this practice in its cultural, political, and constitutional context, to consider its implications for the intellectual and political history of disestablishment, and to wrestle with its potential implications for contemporary church-state doctrine.
Nicole Stelle Garnett, Hartman Hotz Lecture: The Comparative Legal Landscape of Educational Pluralism, 73 Ark. L. Rev. 455 (2020)
As part of the fiscal stimulus bill enacted in the midst of the coronavirus pandemic, Congress extended certain billions of dollars in financial benefits to small businesses, including private and faith-based schools. 463
Education Secretary Betsy DeVos acted quickly to block state efforts to exclude private schools from receiving more education funding. 464For some private [*529] schools in the United States, these benefits are a matter of life and death. After they were forced to close in March 2020, dozens of private schools announced that they would not reopen in the fall. 465Many more expressed concerns that the financial stress of the closures (and resulting declining enrollments) would force them to follow suit. These concerns have prompted some to urge for the restructuring of K-12 education funding, including a dramatic expansion of private-school-choice. 466As a lifelong school-choice proponent, I agree that reconsidering the exclusion of private and faith-based schools is a matter of great urgency. I fear that we have come to this point too late for many schools that serve American children, including thousands of our most vulnerable students. As a student of comparative education policy, I also believe that parental-choice proponents, including myself, have failed to consider the tradeoffs between funding and autonomy in other countries. The time has come to reconsider that as well.
Nicole Stelle Garnett & Patrick E. Reidy, C.S.C., Religious Covenants, 74 Fla. L. Rev. 821 (2022)
When religious institutions alienate property, they often include religiously motivated deed restrictions that bind future owners, sometimes in perpetuity. These "religious covenants" serve different purposes and advance different goals. Some prohibit land uses that the alienating faith communities consider illicit; others seek to ensure continuity of faith commitments; still, others signal public disaffiliation with the new owners and their successors. Some religious covenants are required by theological mandates, but many are not. This Article examines the phenomenon of religious covenants as both a private law and public law problem. This Article concludes that most, but not all, of the religious covenants are likely enforceable, and furthermore, that traditional private law rules governing covenant enforcement represent a bigger impediment to their enforcement than public law principles.
Daniel J. Morrissey, The Promise of Stakeholder Advisory Councils, 23 U. Pa. J. Bus. L. 470 (2021)
Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?”-- Baron Thurlow, Lord Chancellor of England1Large public corporations have made tremendous contributions to our society. We benefit from their continuing innovations in the products and services that touch our lives many times each day. And they furnish gainful employment to large numbers of people.2 When run honestly and in a manner sensitive to the concerns of their customers and the public at large, they have been a huge asset to our common life.3
H. Justin Pace, Rogue Corporations: Unlawful Corporate Conduct and Fiduciary Duty, 85 Mo. L. Rev. 1 (2020)
This Article will consider various corporate lawbreaking scenarios in light of these frameworks. Particular attention will be paid to Dick's Sporting Goods' and Walmart's corporate decisions to stop selling firearms to eighteen- to twenty-year-olds, thus violating state law prohibitions on age discrimination in public accommodations. After considering and critiquing each moral theory in the context of examples of corporate lawbreaking, the Article will conclude with a recommendation for how fiduciary obligation law should regard “rogue” corporations.6 The second non-liberal (and non-utilitarian) model I will consider comes from Catholic Social Thought (“CST”). I include Catholic Social Thought for four reasons. First, there are well over 50 million Catholics in the United States,186 and the hierarchical structure and long history of the Church allows for a central body to build a political theory over time.187 Second, the Church *33 has long worked to position CST as an alternative to both liberalism and socialism.188 Third, CST is persuasive as a matter of first principles. Fourth, CST is more concrete than other models, and thus more readily applied.189 CST “focuse[s] more directly on social problems and concrete issues of justice” than the work of Rawls and Nozick.190 CST also has a long history as an alternative to liberalism.191
Andrea Pin and John Witte, Jr., Meet the New Boss of Religious Freedom: The New Cases of the Court of Justice of the European Union, 55 Tex Int'l L. J. 223 (2020)
This Article analyzes how and why the Court of Justice of the European Union is rapidly becoming an important new forum for European religious freedom and threatening to eclipse the better-known European Court of Human Rights. Before 2017, the Court of Justice was largely silent on religious freedom, and it did little to implement the new religious freedom guarantees of the 2010 EU Charter of Fundamental Rights. Since 2017, however, this Court has issued landmark rulings on the rights and limits on Muslim employees to wear religious headscarves in the workplace and the rights of employers to make religious affiliation and conformity a prerequisite for employment or a basis for differential treatment of employees. The Court has balanced the rights of religious groups to continue ritual slaughtering with the growing concerns for animal wellbeing and organic food preparation. The Court has addressed hard questions of tax exemption and other state aid for religious schools; the rights and limits of refugees alleging religious persecution at home; the limits on state recognition of religious divorces; and the limits that privacy laws impose on Jehovah's Witnesses. And the Court has begun to question longstanding religion-state arrangements in selected countries, including those establishing or favoring traditional forms of Christianity. Unlike the European Court of Human Rights in Strasbourg, which mostly relies on voluntary compliance by the individual State found in violation on the European Convention on Human Rights, the European Court of Justice produces cases that immediately bind all EU Member States and automatically preempt conflicting local laws. Moreover, local state courts regularly seek advisory opinions from this European Court on prevailing EU law before resolving local cases before them. This makes appeal to binding EU law more attractive for local litigants, religious freedom advocates ever more prominently amongst them. If present case trends continue, the world might well be watching the birth of an integrated European law of religious freedom; however, that birth could unsettle longstanding local traditions of church-state relationships and leave insular religious minorities, particularly Muslims, with little religious freedom protection.
James Grant Semonin, Note: "For the Forgiveness of Sins": A Comparative Constitutional Analysis and Defense of the Clergy-Penitent Privilege in the United States and Australia, 47 J.Legis. 156 (2020)
What is striking me about [efforts to curb the clergy-penitent privilege is that legislators are] now going beyond public institutions and reaching very deeply into the interior life of the Church - how we manage our sacramental life - and that kind of aggression, that sort of violation of religious liberty ... should concern not just Catholics but anyone who is committed to ... political values. 1 While this Note argues against subordinating the privilege to mandatory reporter statutes, there is clearly a manifest interest in preventing and prosecuting child abuse. It is evident that the Church has failed in many regards, and institutional [*192] changes from the inside out are necessary to ensure that clergy are adequately trained to counsel penitents regarding the means through which the ends of justice and mercy may be best served. With properly drafted legislation and thorough institutional reform, legislatures and churches alike can work in tandem to address child abuse and protect legitimate religious practice.
Elizabeth Totzke, Note: The Catholic Church and the Paycheck Protection Program: Assessing Nondiscrimination after Trinity Lutheran and Espinoza, 96 Notre Dame L. Rev. 1699 (2021)
Despite the heated response to the Catholic Church's receipt of government funding, the SBA adopted the constitutionally correct standard when it deemed the Catholic Church, as well as other houses of worship, eligible for PPP loans. Although American culture and media continue to cling to the traditional notion of the "wall of separation between church and state," the Court has long abandoned such a paradigm. Most recently, in Trinity Lutheran and again in Espinoza, the Court has embraced a principle of nondiscrimination, which prohibits the government from excluding religious entities based on status alone. 189Moreover, the legal "writing on the wall" suggests this new principle is part of a larger trend, with several members of the Court willing to continue to expand this doctrine in favor of religion. Because the SBA's official policy, which remains in force, relies on a prohibited status-based discrimination, the SBA should, as FEMA did in 2017, officially adopt its inclusive PPP policy. 190And, other federal agencies should do the same. Such policies not only better align with the Court's First and Fourteenth Amendment jurisprudence, but it also ensures religious entities - as well as those who they employ - are not disadvantaged when the next disaster inevitably strikes. The Free Exercise Clause requires nothing less, and the Establishment Clause requires nothing more.
