Brennan and Brewbaker\u27s Christian Legal Thought: Providing the Foundations for Establishment Clause Understanding

(Excerpt) Under this approach—which clearly prioritizes the protection of religious exercise as well as the religious messages of cultural and political institutions—it appears that the Establishment Clause plays little or no role independent of the Free Exercise Clause. My question, then, is whether Christian legal thought compels us, or at least supports, such a reading of the Establishment Clause. In other words, does this lack of concern for non-establishment norms inhere in Christian legal and political thought? I look to Patrick Brennan and William Brewbaker’s casebook—Christian Legal Thought: Materials and Cases (“CLT”) —in search of a framework for exploration. And I am not disappointed. The book provides a treasure of excerpts, commentary, and questions that can enlighten our understanding of Christian perspectives on Establishment Clause interpretation and on notions of non-establishment more generally. While only a small part of the book explicitly addresses modern notions of “church and state” and establishment, CLT provides a comprehensive review of each of the major traditions within Christianity (Catholic, Lutheran, Anabaptist, Calvinist, and Reformed) and develops multiple, interconnected concepts—the nature of church, society, state, authority, culture, and the purpose of law—all of which are implicated in Establishment Clause interpretation. In some senses, the entire book helps us explore the question I pose. But I refer more specifically to those concepts that inform our understanding in the specific American legal context. Indeed, CLT shows us how integral Christian concepts are to the way we think and speak about law, and the way we are politically and socially organized. It implicitly criticizes the task of some Establishment Clause interpretations to “separate out” what is religious. On the other hand, it recognizes the modern conditions and challenges of religious pluralism within a secular state. CLT provides students and scholars with the intellectual resources to consider the meaning of non-establishment in a holistic and nuanced way

Agape and the Life and Work of Robert F. Cochran, Jr.

The life and work of Robert Cochran can be summed up in one word: discipleship. Professor Cochran’s work reflects deeply on Jesus’s words and ministry—His agapic love for all humanity—as they relate to the substance of law and its administration. Professor Cochran’s work establishes two important principles: the need to focus on Jesus’s love as the starting place for analysis and the need to reclaim justice as a central Christian concept. His many volumes help us to understand how it is possible to comprehend lawmaking as an act of agapic love. Further, they provide a roadmap for the Christian’s journey, helping to navigate the interrelation of love, ethics, law, and justice

The Protection of Children and Young People: Catholic and Constitutional Visions of Responsible Freedom

The religion clauses of the U.S. Constitution and the Declaration on Religious Freedom of the Second Vatican Council offer visions of responsible freedom —that is, freedom tempered by the moral claims of others and by the laws necessary to the life of the society. Both visions contain a legitimate role for the state in the protection of children, even where this requires scrutiny by the state of the decisions of religious institutions. In the context of the sexual abuse of minors by Roman Catholic clergy, this Article argues that the state\u27s role necessarily entails some limits on the Church\u27s autonomy through the imposition of tort liability, and necessarily calls for church-state cooperation on the common goal of protecting minors. Yet in both constitutional and conciliar visions of responsible freedom, the Church has sufficient room for its own internal reforms, and must not grow dependent upon the state as it pursues self-correction. The Church should use its freedom for vigorous new life, neither demanding from the state total deference to its internal decisions nor relinquishing to the state the task of moral renewal and institutional reform

After Hobby Lobby: The “Religious For-Profit” and the Limits of the Autonomy Doctrine

Churches are protected under the autonomy doctrine, which is rooted in the Religion Clauses, to ensure that they are free to define their institutional identity and mission. In more limited circumstances, many religious nonprofits also enjoy autonomy protections. Now that the Supreme Court has decided in Burwell v. Hobby Lobby Stores, Inc. that for-profit corporations are capable of religious exercise and entitled to statutory free exercise protection, this Article poses a question that is on the horizon: would it ever be plausible to extend the autonomy doctrine to a for-profit institution? This Article identifies several types of for-profits (named “religious for-profits”) that appear to deserve autonomy protection. But it concludes that they do not – not as a matter of constitutional law. This Article distinguishes religious for-profits from churches and from those religious nonprofits that warrant autonomy protection. It also notes that autonomy protection for some religious nonprofits that act like for-profits is highly contested; now is certainly not the time to expand the doctrine to include for-profits. Why is it wrong to apply the autonomy doctrine to for-profit entities? Autonomy justifies categorical exemptions, which often result in harmful consequences to specific individuals and groups. If autonomy is extended to for profits, those negative impacts will multiply in number and intensity when coupled with the massive economic power of those entities. Autonomy protections traditionally have been applied exclusively within the church-and nonprofit sector. Indeed, autonomy is reserved for juris generative communities operating under some type of consent based norms, which is not the case in the for-profit context. Finally, the expansion of autonomy to include for profits threatens to dilute the entire doctrine, which could result in the loss of protections for churches on core matters of identity and mission. Instead, this Article proposes that the best way for courts, legislators and regulators to protect the religious freedom of for-profit entities is to apply a balancing approach, which takes into account and tries to mitigate the impacts on others of any exemption granted to a religious claimant