When Religious Belief Becomes Scientific Opinion: Burwell v. Hobby Lobby and the Unraveling of Federal Rule 702 (original) (raw)
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Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible — and typically necessary — for adjudicati...
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Law, Religion, and Health in the United States
In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: 1 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 2 Burwell v. Hobby Lobby, Inc., 3 Holt v. Hobbs, 4 and, most recently, Zubik v. Burwell. 5 Although the Court's decisions in these cases addressed-and seemed to resolve-a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the "ministerial exception" and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as the contours of free exercise rights for prisoners and the definition of a religious minister. More dramatically-though anticlimactically-in Zubik, rather than ruling in favor of one of the parties, the Court issued an unusual per curiam opinion instructing the parties to work to find a way to resolve the matter. This chapter suggests that the Supreme Court's inability to answer some of these questions, or even to resolve the controversy in Zubik, is rooted in the Court's continuing, and arguably expanding, hands-off approach to religious doctrine. The hands-off approach, developed in a series of landmark cases, precludes judges from engaging in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims in deference to adherents' characterizations of the substance and significance of a religious practice or belief. 6 Although the Court has offered both constitutional and practical justifications for this deference, the hands-off approach has been subject to considerable criticism among legal scholars. 7 Indeed, notwithstanding some sound 1 See U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. .. .").
A Critique of Hobby Lobby and the Supreme Court\u27s Hands-Off Approach to Religion
2015
Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible— and typically necessary—for adjudication ...
Contemporary Readings in Law and Social Justice, 2012
Recently a new battle has emerged that implicates law, science and religion. The battle has focused on intelligent design (ID) and the numerous legal, philosophical, and educational concerns surrounding it. In the United States, resolution of these concerns centers on two questions: Is lD science? And is lD religion? Despite the fact that lD does not meet the standards of scientific rigor, ID proponents have been able to create a remarkably well-designed marketing plan aimed at imposing a theistic naturalism in schools and scientific discourse in the U.S. and a growing number of other countries. Both the ID movement and some of its most vociferous opponents have a vested interest in suggesting that science, especially evolutionary biology, and religion are incompatible and that law should recognize this supposed incompatibility. This paper presents a philosophical and legal counterpoint.
INTRODUCTION It is virtually axiomatic today that judges should not advert to religious values when deciding cases,2 unless those cases explicitly involve religion.' In part because of historical and constitutional concerns and in part because of assumptions about the nature of religious knowledge itself, religion is frequently perceived as an inappropriate source of values in the policy-making or law-making process, including adjudication.4 This Note refutes that position and explains why certain religious values can and even should enter into the judicial decision-making process. Part I begins with a discussion of what constitutes a "religious" value and then evaluates five explanations of why religious values might be perceived as illegitimate sources in the law-making process. Part II, in turn, sets forth a number of reasons-from the four perspectives of history, political philosophy, social utility, and the reality of judicial decision making-why religion can or should be included in a judge's resolution of cases. Finally, Part III delineates certain prudential and constitutional limits on the use of religious values in judicial decision making. Because this Note develops its thesis largely in the abstract, a number of qualifications should be noted from the outset. First, when discussing judicial reliance on religious values, this Note has in mind not only the religious values or beliefs of the presiding judge, but also the religious values of the parties at hand or of society generally, including the teachings of formal religious organizations. Second, the term "religious values" (examined more closely in Part I) should be construed broadly to include not only values as such, but also religious teachings, claims, and underlying beliefs. Third, when speaking of "judicial decision making," this Note primarily addresses the judicial resolution of questions of law, although the judicial use of religious values may have implications for other functions such as fact-finding or the formation of remedies. Finally, this Note does not necessarily envision an explicit role for religious values in the vast majority of legal controversies; rather, the focus is on ethically difficult cases, or other so-called "hard cases,"5 where judicial reference to religious values, among others, may be particularly appropriate, helpful, and even necessary Hard cases might present issues such as when human life begins or ends, what constitutes a human life, how humans should treat the environment or other species, or how scarce resources should be distributed within the human community Like many problems confronting the courts, all of these issues require ultimate moral determinations about the nature of human beings or about the nature of their relationship to one another, to the state, and to the global community 6