Hatzis on Religious Discrimination

Nicholas Hatzis (Oxford) has posted Personal Religious Beliefs in the Workplace: How Not to Define Indirect Discrimination, on SSRN. The abstract follows.

Religious discrimination occurs when a person is treated less favourably because of her religion. In cases of indirect discrimination the claimant needs to demonstrate that an otherwise neutral measure has caused her to suffer a particular disadvantage which people with different religious beliefs did not suffer. In Eweida v. British Airways the Court of Appeal held that personal religious beliefs which are not part of official religious dogma cannot be relied upon as a basis for a claim of indirect discrimination. The article argues that this is an erroneous interpretation of anti-discrimination law. It discusses, first, the reasoning in Eweida; then, it examines the treatment of personal religious beliefs in other cases in Britain and the United States; finally, it places the issue in a human rights framework.

Bethlehem Church to Get New Roof

As Christmas approaches, word this week that the Church of the Nativity in Bethlehem (left), the traditional site of Jesus’ birth, will get a new roof. The roof, which is centuries old, has needed replacing for some time, but the three Christian communions that share the church – Armenian Apostolic, Greek Orthodox, and Roman Catholic – have been unable to agree on a plan. The story behind their disagreement, and the reason why they have had such a hard time resolving it, is a fascinating one.

The three communions share the church under the “Status Quo,” a set of rules and customs that date back centuries to Ottoman times, and which also govern other Christian sites like the Church of the Holy Sepulcher in Jerusalem. The provisions are incredibly detailed. For example, the Status Quo specifies the times of day when communions may have access to specific altars, the permissible length of religious services, the proper placement of chalices, the ownership of lamps and icons, and, crucially, the right to repair sections of the church. According to custom, to repair part of the church, or even to pay for repairs, is an assertion of ownership. As a result, each communion carefully guards against the possibility that another will undertake repairs in common areas, like the roof, and thereby gain rights by a sort of adverse possession.

All this seems a bit arcane today to outsiders, but the Status Quo has occupied a major place in diplomatic history and international law. In the 19th Century, France, seeking to increase its influence in the Middle East, agitated for Catholic control of the church and other Christian shrines in the Holy Land; Russia, seeking to resist French influence, agitated on behalf of the Orthodox. The Status Quo was in fact an attempt by the Ottomans to freeze everybody in place as of 1852 and avoid further conflict. When someone removed a silver cross the French had donated to the church (above), the theft sparked an international incident that led ultimately to the Crimean War. In the treaty that ended the war in 1856, the belligerents endorsed the Status Quo, and it has been honored by the rulers of Bethlehem – the Ottomans, the British, the Jordanians, the Israelis, and now the Palestinians – ever since.

The present agreement to replace the roof has been brokered by the Palestinian Authority, which has somehow persuaded everybody to cooperate. Really, there isn’t much choice, as experts say the roof could collapse at any time. Work is to begin next year.

Holland’s Moroccan Immigrant Population

A disturbing story about the problems of Moroccan integration in Dutch society.  If the report is true that 40% of Moroccan immigrants between the ages of 12 and 24 have been arrested, fined, or charged with criminal offenses, that seems to me an extraordinarily serious situation, irrespective of the cause. Even worse, this does not seem to be a problem that will improve in the near future.  The story also references the work of Dutch journalist Fleur Jurgens, who is clearly a committed opponent of Holland’s multiculturalist policies, and who has written that “Moroccan parents are to blame for the antisocial behavior of their children by teaching them at a young age to hate the Dutch and abhor their society.”  According to the story, the Dutch government “now says it will abandon the long-standing model of multiculturalism that has encouraged Moroccans and other Muslim immigrants to create a parallel society within the Netherlands.”  Difficult times indeed for the Netherlands.

Bayart on the Secular and the Laic in France and Turkey

An interesting piece in Le Monde by Jean-François Bayart (Centre Nationale de la Récherche Scientifique) on the meanings of laïcité, more (as with the Pera book) as a piece of cultural anthropology than for the substance of the views expressed.  The author’s sense and description of the differences between French and Turkish laïcité are particularly worth reading in this respect.

Backus & Benedict, eds., “Calvin & His Influence: 1509-2009”

This is a fascinating new book of essays edited by Irena Backus and Philip Benedict (both of the University of Geneva), Calvin & His Influence: 1509-2009 (OUP 2011).  Calvinist and neo-Calvinist thought has been very important in the United States, and continues to inform some of the most interesting current legal scholarship (see, e.g., some of the work in sphere sovereignty by Paul Horwitz, deeply influenced by the neo-Calvinist Abraham Kuyper). 

Interested readers should also be sure not to miss John Witte’s excellent The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (CUP 2008).  A short but incisive summary of Witte’s views about the importance of Calvin for legal thought may be found in the Spring 2011 edition of the Journal of Christian Legal Thought. 

The publisher’s description of the Backus & Benedict book follows.

Who was John Calvin and why is he still read five hundred years after his birth? In this volume an international and interdisciplinary group of leading specialists explores both the reasons for Calvin’s enduring influence and the story of his reception across five centuries. The book’s initial essays lay bare features of his ideas, his work as a church reformer, and his manner of presenting himself in his books and letters that clarify his impact both in his lifetime and after his death. The second half of the volume examines how he was read, perceived, and appropriated in different times and places from the seventeenth century to the present.

If Calvin’s writings were widely cited by leading Reformed theologians in the generations immediately after his death, they receded from view in the eighteenth century. What was most often recalled was his role in the burning of Michael Servetus, for which he was widely criticized in those quarters of the Reformed tradition now attached to the idea of toleration or the ideal of a free church. In the nineteenth and twentieth centuries, his theology was recovered again in a variety of different contexts, while scholars drew his treatises and letters together into the monument to his life and work that was the Opera Calvini and undertook major studies of his life and times. Church movements claimed the label “Calvinist” for themselves with insistence and pride, whereas before the term had been derogatory. The movements that identified themselves as Calvinist nonetheless varied considerably in the manner in which they understood or misunderstood Calvin’s thought.

Calvin and His Influence, 1509-2009 should become the starting point for further reflection about Calvin’s impact in his own time and throughout the subsequent history of Calvinism, as well as, more broadly, about the relationship between leading figures of the Reformation and the traditions subsequently associated with their names.

Wardle on Abortion, Same-Sex Marriage, and Education

Another paper by Lynn Wardle (BYU), The Impacts on Education of Legalizing Same-Sex Marriage and Lessons From Abortion Jurisprudence.  The abstract follows.

One of the most contentious issues to arise in public policy debates concerning the legalization of same-sex marriage is whether legalizing same-sex marriage has a significant detrimental impact on education, particularly public education. However, legal scholarly and professional consideration of this issue is scarce and one sided. This article reviews the evidence that legalizing same-sex marriage has had a serious, profoundly controversial, and arguably detrimental impact on public education. It then explains why legalization of same-sex marriage must have some impact on educational curriculum. When the meaning of marriage changes it must be reflected in the curriculum that covers that subject. Next, the existing constitutional protections against detrimental impacts upon parents’ rights and family integrity interests of legalizing same-sex marriage are reviewed. The article also presents an analogy from abortion jurisprudence that may provide some protection for parental rights to control the education of their children and protect them against some detrimental effects on education from legalizing same-sex marriage. Finally, the article provides some recommendations for legal remedies and community action that may address these concerns.

Tillman on the Religious Test Clause

Seth Tillman (National University of Ireland, Maynooth) has posted Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal and Disqualification Clause, and the Religious Test Clause — A Response to Professor Josh Chafetz’s “Impeachment and Assassination”, on SSRN. The abstract follows.

This article is a response to Professor Josh Chafetz’s Impeachment & Assassination, Minnesota Law Review, Vol. 95, p. 347, 2010. According to Professor Josh Chafetz, “impeachment maintains the link between removal and death, but attenuates it…. Impeachment is … a political death – a President who is impeached and convicted is deprived of his continued existence as a political officeholder. And, like death, impeachment and conviction may be permanent.” In this response, it is my purpose to show that Chafetz’s proposed metaphor does not work and, indeed, that inferences drawn from this metaphor lead Chafetz far afield from the Constitution’s original public meaning.

This paper is largely a response to Professor Chafetz’s Minnesota Law Read more

Wardle on Marriage and Religious Liberty

Lynn Wardle (BYU) has posted Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions, on SSRN. The abstract follows.

The purpose of this paper is to consider how the legal regulation of marriage impacts upon religious liberty, and vice versa, and how to reconcile conflicts between religious liberty and state marriage regulations. It is an area of increasing conflicts in a growing number of nations. Using comparative law, this article presents the range and complexity of state-versus-religion conflicts and of systemic legal approaches concerning the regulation of marriage that exist in the world today, focusing specifically on two issues: the formation/celebration of marriage generally, and the legalization of same-sex marriage. Having shown the scope of the conflicts between religious and political communities regarding the regulation of marriage, this article argues that the body of law known as “conflict of laws” provides a valuable model for the resolution of church-state disputes regarding the regulation of marriage.

This paper focuses on two communities that claim sovereignty over individuals: the State and religion. Conflicts between religions and states concerning their respective regulatory policies may create internal cognitive dissonance for religious communities and for states. Thus, there would seem to be internal harmony incentives to find a solution to avoid disputes. However, these incentives may be offset, neutralized, or overcome if there are communities within the state that wish to harm or reduce the influence of the religious community

New Translation of Vidyasagar’s “Hindu Widow Marriage”

Brian A. Hatcher (Tufts) has published a new translation of Vidyasagar’s Hindu Widow Marriage (Columbia University Press 2011), a nineteenth-century work arguing for the repeal of Hindu restrictions on widows’ remarriage. The publisher’s description follows.

Before the passage of the Hindu Widow’s Re-marriage Act of 1856, Hindu tradition required a woman to live as a virtual outcast after her husband’s death. Widows were expected to shave their heads, discard their jewelry, live in seclusion, and undergo regular acts of penance. Ishvarchandra Vidyasagar was the first Indian intellectual to successfully argue against these strictures. A Sanskrit scholar and passionate social reformer, Vidyasagar was a leading proponent of widow marriage in colonial India, urging his contemporaries to reject a ban that caused countless women to suffer needlessly.

Vidyasagar’s brilliant strategy paired a rereading of Hindu scripture with an emotional plea on behalf of the widow, resulting in an organic reimagining of Hindu law and custom. Vidyasagar made his case through the two-part publication Hindu Widow Marriage, a tour de force of logic, erudition, and Read more

Georgia Supreme Court Decides Two Church Property Disputes

The Georgia Supreme Court last week decided two important church property cases. The rulings, handed down the same day, favor national bodies in disputes with local congregations and add nuance to the “neutral principles of law” doctrine, associated with the US Supreme Court’s holding in Jones v. Wolf, which allows judges to resolve intra-church disputes by interpreting relevant legal documents in terms of neutral civil law principles. The first case, Rector, Wardens, and Vestrymen of Christ Church, Savannah v. Bishop of the Episcopal Diocese of Georgia, applied the neutral principles doctrine to rule that an Episcopal parish in Savannah held property in trust for the parent body, the Protestant Episcopal Church in the USA. As a consequence of this ruling, the parish, which has seceded from the national body and affiliated itself with an African diocese, must vacate the property and turn it over to the national church. In the second case, Presbytery of Greater Atlanta v. Timberridge Presbyterian Church, the court similarly concluded, again under the neutral principles doctrine, that a local Presbyterian congregation held its property in trust for the national body, the Presbyterian Church-USA.

Two points about these cases. First, they demonstrate that “hierarchical churches” – and both the Episcopal and Presbyterian Churches qualify as such for purposes of American law – have learned, presumably in response to earlier court decisions, to amend and in some cases draw up church rules in a way that insures that local congregations hold property only in trust for the national body. Second, one typically thinks of the neutral principles doctrine in the context of “external” documents like deeds, contracts, and trust instruments.  In these cases, however, the court applied the doctrine to “internal” church rules. There’s a danger in applying the doctrine in that context. Canon law may operate in ways that lawyers trained in the civil law system do not fully appreciate; from the perspective of the church, “neutral” civil law principles may not seem neutral at all. In these two cases, the court believed, that was not a problem, as the relevant canons did not implicate religious principles. In future cases, that may not be so clear.