Research Handbook on Law and Religion
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Research Handbook on Law and Religion

Edited by Rex Ahdar

Offering an interdisciplinary, international and philosophical perspective, this comprehensive Research Handbook explores both perennial and recent legal issues that concern the modern state and its interaction with religious communities and individuals.
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Chapter 13: When judges are theologians: adjudicating religious questions

Michael A Helfand


This chapter explores how US courts address legal disputes that implicate contested religious or theological questions. While American law’s ostensibly straightforward answer to this question is simply that the Constitution prohibits courts from adjudicating religious questions, the reality is far more complicated. The legal consequences of applying this religious question doctrine vary depending on the context and may therefore encourage different context-sensitive strategies and outcomes. Thus, when judges dismiss private law cases that implicate theological questions, they often leave aggrieved parties without a remedy for legal wrongs; when judges dismiss public law cases that include theological questions, they often leave some sphere of human conduct beyond the law’s regulatory reach. Contrary to the prevailing doctrine, the different jurisprudential considerations raised by these disparate practical consequences justify affording courts more flexibility in the private law context to resolve disputes that implicate theological claims.

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