Thesis advisor: Stephanie Greene / A Constitutional analysis of the American Recovery and Reinvestment Act of 2009 with respect to educational subsidies to religiously-affiliated universities; including a proposed framework for the adjudication of issues involving religion and the government. / Thesis (BS) — Boston College, 2009. / Submitted to: Boston College. Carroll School of Management. / Discipline: Carroll School of Management Honors Program. / Discipline: Business Law.

The issue of religion and its place in society has been a topic of controversy and debate since long before the creation of our constitutional republic. The relationship between religion and government has witnessed some of its most intense conflicts when the governmental entity in question involves public education. As our country moved into the 20th century, legal challenges in the field of public education began to emerge calling into question the constitutionality of various policies and practices at both the state and local levels. This dissertation examined the legal methodology that was initially developed and then subsequently modified as the judicial branch has interpreted how the Establishment Clause delineates the relationship between religion and public education. Because the United States Supreme Court has not overturned its decision in Lemon v. Kurtzman, the tri-partite test it established still remains the law of the land. Subsequent decisions by the Court leading up to their ruling in Mitchell v. Helms, however, have continued to modify the judiciary's approach toward the use of the Lemon test in Establishment Clause jurisprudence. This research analyzed the decisions of the various federal courts subsequent to the ruling issued in Mitchell to discern both the present position of the federal judiciary as it relates to the continued validity of Lemon and theorizes how the future course of any Establishment Clause legal challenges may ultimately be resolved by the federal courts. The analysis suggested that, while the Supreme Court has avoided Lemon's three-part test as the standard for evaluating Establishment Clause claims, the lower courts continue to place a strong emphasis on the importance of the test established in Lemon as the basis for how they render their decisions with issues that involve public education. This data indicated that Lemon continues to be an important tool for determining the validity of state programs and policies involving federal questions related to the Establishment Clause.

Network, organizational, and policy learning literatures indicate that when interest groups face failure they will seek out alternative ideas and strategies that will enhance their potential for future success. Research with regard to interest groups and legal change has found that interest groups, using arguments that were once accepted as the legal standard for Supreme Court decisions, were unwilling or unable to alter their arguments when the Court reversed its position on these legal standards. This research project examined the conflicting findings of these literatures. Using the Advocacy Coalition Framework as a guide, this project studied the separationist advocacy coalition in cases regarding state aid to elementary and secondary sectarian schools from 1971 to 2002. The legal briefs filed by members of the separationist advocacy coalition with the Court were examined using content analysis to track changes in their legal arguments. Elite interviews were then conducted to gain an understanding of the rationale for results found in the content analysis. The research expectation was that the separationist advocacy coalition would seek out and incorporate into their briefs new and innovative legal arguments to promote their policy goals. The research results demonstrated that prior to legal change interest groups did seek out and incorporate new legal arguments borrowed from other fora and sought to expand or reinterpret established legal arguments to better aid their policy goals. The changes that seemed to have the potential for adoption by the Court were quickly incorporated into the briefs of the other members of the coalition. Following legal change interest groups continued to analyze the decisions of the Court in order to seek out the best possible legal arguments to use in their briefs; however, the main focus of legal arguments examined and used by the coalition narrowed to those cited by the swing justice in the funding cases. Two innovative arguments were developed, but were either ignored or considered unsuitable, and were not used by the other members of the coalition. Counter to this project's research expectations new and innovative legal arguments were not adopted by the coalition. As the Court discontinued the use of various legal arguments the coalition quickly responded to these changes and dropped those obsolete legal arguments. Therefore, contrary to prior research, the interest groups and the coalition altered their arguments following legal change. Only those interest groups who no longer participated in coalition discussions reverted back to using pre-legal change arguments. Learning continued to occur in the coalition following legal change; however, the focus of analysis and the pool of arguments deemed worthy of use narrowed considerably. / Ph. D.

In deliberating on the application of the Establishment and Free Exercise Clauses of the United States Constitution’s First Amendment, the Supreme Court since 1947 has consistently failed to develop a principled distinction between religion and non-religion. This has hampered its ability to respond to developing challenges in Religion Clauses jurisprudence and to interpret those clauses in a systematic manner. Its recourse to facile characterizations of secularism and pluralism has exacerbated this problem. Attending to incoherence in the Court’s understanding of religion points to a definition of religion based in revelation and grounded not in the language of preference, identity or value, but in natural law and metaphysics. / text

No description available.

This dissertation explores how argumentation theory can supplement models of responsible persuasion in rhetoric and writing studies. In particular, it demonstrates how reasoning as envisioned in the pragma-dialectical approach of argumentation can provide an alternative to exclusionary, unethical operations of reason. Despite longstanding work with models of argument from Aristotle to Stephen Toulmin, rhetoric and writing has paid little attention to the potential uses of dialectical argumentation theory. Such theory deserves greater consideration given its ability to meet the ethical demands voiced by rhetorical critiques of traditional ways of arguing. Critiques of reason demonstrate how the abstractions necessary for logical certainty exist in tension with the inherent ambiguity of human arguments. In attempting to strip away that ambiguity, some discussants unfairly exclude relevant details from others and may exclude entire populations who should be included in a fair deliberation. Goals of understanding and inclusion unite the variety of calls for new ways of arguing made in rhetoric and writing under titles of Rogerian, non-agonistic, listening, and invitational rhetorics. Nevertheless, as Chaïm Perelman and Lucie Olbrechts-Tyteca describe, even as our arguments involve irresolvable ambiguities, they must also function as stable and coherent viewpoints such that our interlocutors can hold us accountable to agreement or disagreement. In this way, we responsibly argue questions of ethics, politics and law. Though no final resolution of ambiguity is possible in such questions, we can reason together for a better understanding of each other's positions and craft pragmatic policies to deal with our disagreements. In order to explore the disciplinary questions about the relationship between rhetoric and argumentation, the dissertation examines a series of case studies drawn from judicial disputes over church-state separation in the United States. In examining problematic rhetoric of these disputes, the dissertation builds an understanding of responsible reason informed by dialectical argumentation and demonstrates its utility for both critical and pedagogical applications. / text

La présente étude tend à replacer le contexte de la construction fédérale américaine à la lumière d'un théisme politique émergent. L'exceptionnalisme procède à ce titre d'un paradoxe originel qui vient directement nourrir nos interrogations : la reconnaissance par la lettre constitutionnelle puis par les juges de la Cour Suprême d'un véritable « mur de séparation » entre le spirituel et le temporel, parfois exacerbé par les instruments du droit, mais qui doit être associé à la mise en place d'une «religion de la République» élaborée et fortement institutionnalisée. De là, l'auteur voit dans la notion d'exceptionnalisme religieux la mise en œuvre d'une rhétorique nouvelle qui entend offrir les instruments conceptuels permettant de revisiter la subtile immixtion de l' « esprit de religion » et de l' « esprit de liberté » chers à Alexis de Tocqueville. Cette perspective a dès lors pour dessein d'entrevoir une résolution de l'impossible oxymore que forme la république théocratico-laïque. Cette apparente dichotomie ne peut être entrevue à travers une lecture exclusivement doctrinale, elle emporte au contraire nombre d'incertitudes sur le plan jurisprudentiel. L'étude démontre à ce titre que les juges, en éludant la notion d'exceptionnalisme américain, ne peuvent construire un paradigme juridique apte à apprécier de manière satisfaisante les dispositions de droit positif en matière religieuse. Aussi, le constitutionnaliste œuvre à étudier les mécanismes juridiques traduisant un phénomène sociologique exceptionnaliste. Cette approche éclaire de telle manière la notion sans cesse revisitée de « laïcité américaine ». / This study tends to put the federal construction in context of an emerging political theism. Exceptionalism reveals an original paradox that directly feeds our questions: the recognition by the Constitution then by the judges of the Supreme Court of a “wall of separation” between spiritual and temporal powers, sometimes exacerbated by the instruments of the law, but which must be associated with the establishment of a “religion of the Republic” highly developed and institutionalized. From there, the author sees the notion of religious exceptionalism as the implementation of a new rhetoric that aims to provide the conceptual tools to revisit the subtle interference of the “spirit of religion” and the “spirit of liberty”, quoted from Alexis de Tocqueville. This perspective has therefore the ambition of establishing a possible resolution of the oxymoron that forms the theocratic-secular republic. This apparent dichotomy cannot be seen through a purely doctrinal reading, it brings on the contrary many uncertainties on the jurisprudential work. The study shows that the judges, eluding the notion of American exceptionalism, cannot build a legal paradigm able to appreciate adequately the provisions of substantive law in religious matters. To this end, the constitutionalist studies the legal mechanisms resulting from an exceptionalist sociological phenomenon. This approach sheds light on the concept so constantly revisited of “American secularism”.

Thesis (Doctor of Philosophy)--Miami University, Dept. of Political Science, 2004. / Title from second page of PDF document. Includes bibliographical references (p. 150-158).

La tesi approfondisce il complesso rapporto tra diritto, religione e sanità nella realtà americana, concentrandosi in particolare sulle problematiche scaturenti dall’orientamento religioso del paziente, del care provider e della struttura sanitaria. La prima sezione si propone di studiare, sempre in chiave giuridica, l’evoluzione del rapporto tra fede e medicina, presentando altresì due casi di studio: i nativi americani e christian science. Nella seconda sezione, invece, si ricostruiscono le linee interpretative essenziali del primo emendamento con specifico approfondimento tanto della Free exercise clause che dalla establishment clause. Parimenti, viene tracciato un disegno di sintesi del sistema sanitario americano, soffermandosi tanto sugli aspetti pubblicistici che su quelli privatistici dello stesso. La ricerca, poi, si sofferma sull’analisi dettagliata delle problematiche evidenziate dalla giurisprudenza americana con riferimento al care receiver, al care provider e, soprattutto, al contenzioso in materia pediatrica. L’ultima parte è dedicata allo sviluppo di due distinti filoni, ovvero: il rapporto tra scienza e diritto ed il ruolo dell’economia. Questo ultimo aspetto viene approfondito sotto due diversi punti di vista. In primo luogo si ricostruisce l’impatto economico delle policy che garantiscono la libertà religiosa sul “sistema sanità”. In secondo luogo, si approfondisce il tema dell’influenza del dato economico sullo sviluppo della libertà religiosa in ambito sanitario. / This work deals with the complex relationship between law, religion and the sanitary system in the U.S. setting, by focusing on the problems emerging from the religious view of the patient, of the care provider and the religious orientation of the hospital or HMO. The first section of the work aims to study, from a legal point of view, the evolution of the relationship “medicine-religion”, and focuses on two case studies: native Americans and Christian science. In the second section the essential interpretative streamlines about the first amendment are presented, through a deep analysis of the Free Exercise Clause and of the Establishment Clause. At the same time, the American (U.S.) sanitary system is deeply studied both in the private sector and the public one. The research then focuses on a detailed analysis of the jurisprudence related to the care provider and the care receiver, while a specific section is dedicated to the litigation concerning pediatric patients and the related litigation cases. The last part develops two different subjects: the relationship between science and law, and the role of economy. This last subject is deeply analyzed under two different points of view: the economic impact of the religious freedom on the “sanitary system” on the one hand; and the influence of the economic data on the development of religious freedom in the health care system setting on the other.

La produzione di carne è disciplinata dai diritti ebraico ed islamico attraverso normative che, a prescindere dalle loro rispettive specificità, sono accomunate dallo scopo fondamentale di rammentare ai fedeli la gravità dell’atto di privare un animale della vita. La produzione di carni kashèr (idonee ad essere consumate, in base al diritto ebraico) e halal (lecite, ai sensi di quello islamico) trova generalmente spazio nelle democrazie pluraliste in virtù del diritto alla libertà religiosa. Questo, ad ogni modo, non esime lo Stato dalla responsabilità di disciplinare la macellazione e l’uso commerciale delle indicazioni di qualità kashèr e halal, in ragione ed entro i limiti dei propri compiti di tutela della salute umana ed animale, della concorrenza e dei consumatori. Assolvere questa responsabilità nel rispetto della reciproca autonomia tra Stato e confessioni religiose implica la ricerca di un equilibrio complesso, soprattutto quando si tratta di individuare e delimitare le competenze dei poteri pubblici, degli enti confessionali e del settore privato in materia di macellazione rituale e di certificazione religiosa delle carni. La tesi analizza e mette a confronto le soluzioni normative adottate in due ordinamenti (quello francese e quello statunitense) ispirati al principio di separazione dello Stato dalle religioni, seppur con declinazioni molto differenti. / Meat production is regulated by both Jewish and Islamic Laws through sets of rules that, aside from their respective specificities, share the aim of teaching reverence for life to the believers. Generally speaking, in pluralist democracies the production of kosher (“fit/proper”, according to Jewish Law) and halal (“permissible”, under Islamic Law) meat is protected under the right to freedom of religion. However, the State retains the authority to regulate the use of religious slaughter and that of kosher and halal claims in the meat market, on the basis and within the limits of its mandate to protect and promote public health, humane treatment of animals, fair market competition and consumer rights. Fulfilling such responsibility without overstepping the bounds of State-religion mutual autonomy is a complex task, especially when it comes to determining the roles of public authorities, religious bodies and the private sector in the fields of ritual slaughter and religious certification; it requires, indeed, to strike a fair balance between several - sometimes competing - rights and interests. The dissertation analyses and compares the legal approaches through which these matters are addressed in France and in the US, where the general principle of separation between Church and State is construed and implemented in profoundly different ways.