Religious Authority in a Secular State

This course will explore the relationship between private law that governs religious minority communities and secular law designed to govern all citizens. The course will focus on three main areas. First, it will examine constitutional doctrines that describe when the Establishment Clause prohibits secular courts from intervening in intra-religious disputes. Topics to be discussed will include arbitration, employment discrimination, civil vs. religious marriage contracts, and ministerial appointment. Particular attention will be paid to the U.S. Supreme Court's consideration of Hosana Tabor v. EEOC, which is scheduled for the upcoming term.

The second topic will explore other sources of law as they affect the organization of religious institutions. Areas of law might include the Sherman Act, tax law (especially non-profit status), RLUIPA, RFRA & the Free Exercise Clause, and assorted doctrines in contract and property law. Special scrutiny will be paid to the Supreme Court's periodic distinction between "hierarchical" and "congregational" denominations, the meaning of a religious "movement," and the secular rights of individuals who submit to, or identify with, a religious organization.

The third topic will explore Jewish sources that describe both how authority should structure an autonomous Jewish community and how (and when) an insular Jewish community should respect the authority of a secular state. Because rabbinic law developed while Jewish communities lacked political sovereignty yet still developed autonomous legal institutions, it can offer a rich perspective on the relationship between a religious minority and a governing majority. Topics discussed would include: how to handle commercial disputes both among Jews and between Jews & non-Jews; how to handle religious disputes both among Jews in a single locality and between Jews in different localities; how to allocate communal funds in the face of religious disagreement; and when to adjust tradition in the face of pressing political change or inviting political opportunities.

The course will require no background and will assume no deep knowledge of any area of Jewish or US law. A final paper and class participation will constitute the terms of evaluation.
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