I am here at this year’s Religious Legal Theory conference, The Competing Claims of Law and Religion: Who Should Influence Whom?, at Pepperdine in sunny Malibu. The first panel on international and comparative perspectives is now going on.
The first speaker is Stijn Smet (a Ph.D. student at Ghent), who is speaking about Freedom of Religion Versus Freedom From Religion in the Jurisprudence of the European Court of Human Rights. The first case Mr. Smet is discussing is the Dahlab v. Switzerland, involving a teacher who wanted to wear a headscarf in public school. He criticizes this decision.
He is now talking about Lautsi v. Italy, the Italian crucifix case, where the Grand Chamber of the European Court ultimately upheld Italy’s right to display the crucifix in public schools. He criticizes the idea that the crucifix is a “passive” symbol at least by comparison with the Dahlab decision’s description of the headscarf as an active symbol.
He explains the difference in outcome as involving the concept of margin of appreciation. Neither case dealt with indoctrination, though he recognizes that the definition of indoctrination needs to be filled out. Smet also notes that there is no Establishment Clause analogue in the Convention, and he notes the difference in power and jurisdiction of the European Court. He suggests an “equal respect” argument which might have been available through Article 14.
The second speaker is Mark D. Rosen (Chicago-Kent).
He claims that a non-neutral liberal state is not an “oxymoron.” The argument is Rawlsian and contractarian in nature. He says that one would want behind a veil of ignorance to create “neutral” states. But we would want to leave space for “particularist” states to pursue specific “non-neutral policies.” The idea is that we would want to accommodate “perfectionist” visions of the good, because we would not know behind the veil which sort of political theoretical view we would take — non-perfectionist or perfectionist. The thought is, I suppose, pluralistic after a fashion. Rawls, he claims, does not arrive at this conclusion because he limits those who get to choose from behind the veil — Rawls limits what matters behind the veil to the “political conception of the person.” So there is no room in Rawls for perfectionist states.
Instead, Rosen claims that perfectionist visions should be admitted, but that perfectionists may or may not be happy with Rawls’s two principles of justice. The idea is to put them to the Rawlsian test. If some perfectionists can be accommodated according to Rawls’s two-part test, then they should be.
The third speaker is Eoin Carolan (University College Dublin), who is talking about the Irish constitutional system and “Catholic constitutionalism.” The Irish Constitution is a 1937 document — a “conspicuously Catholic text.” It was meant to reflect that “we are a Christian people,” referring to “our divine Lord Jesus Christ.” Article 44 provides for freedom of and freedom from religion. And it contained special recognition for the Catholic Church, which was later removed. It also contains special protections for freedom of the family. Strong natural law components pervade the constitution. Those features of the constitution — the natural law components — were adopted judicially, though not necessarily Catholic teaching. And it contains a specific ban on abortion as an amendment (the Irish constitution is easier to amend than the US Constitution).
At some point, however, the tradition of natural law was rejected in Irish constitutional cases as a basis for deciding the rights of Irish citizens. Carolan says that this is in some ways a large loss, because discussion of normative issues has disappeared, in favor of a discussion of text and other interpretive methods. A very interesting talk.
The fourth speaker is Austin Dacey (Representative to the United Nations for the International Humanist and Ethical Union). The talk is about “defamation of religion” and blasphemy law. He talks about a 2009 resolution of the UN which urges states to provide adequate protection against acts of hatred and discrimination resulting from religious defamation. The European Court of Human Rights has upheld acts which punish religious defamation.
He criticizes the conflation of blaspemy and hate speech. He then subdivides the history of blasphemy into three periods, the first is defamtion of the divine, the second has to do with “communal” blasphemy — blasphemy which negatively impacts and undermines the community, the third is “personal blasphemy,” where the victims are individual people — this is the modern view of blasphemy, he says.
He defends a certain conception of blasphemy — a “secular” understanding blasphemy. He is sympathetic to the “older” spiritual blasphemy — if it is given a “post-theistic” understanding as the violation of “sacred” values which do not rely on theistic understandings. He opposes “personal” blasphemy as a basis for punishment because it is only quasi-secular. But it does nothing to remove a “more basic inequality” because it privileges those people who belong to a traditional religious faith, while doing nothing to protect non-traditional spiritualists (like, he has told us earlier, himself). He calls these “insidious” because they appeal to a kind of understanding of liberalism.
Instead, he advocates a conception of blasphemy which focuses on “the violation of sacred values.”
The final speaker is Fr. Robert John Araujo, who is talking about the conflict of authority between the People’s Republic of China and the Roman Catholic Church. An examination of Chinese law with respect to human rights — and specifically the Chinese constitutional of religious beliefs and “normal” religious activities. There is also a prohibition on religions which are subject to “foreign domination.”
The paper from which the talk is drawn has to do with whether China and the Holy See are complying with norms of international law regarding religious freedom. Fr. Araujo comes to the conclusion that China is not, while the Holy See is. He focuses on Pope Benedict’s letter from a few years ago to the Church in China. The letter was an attempt at reconciliation between China and the Church. Such efforts at reconciliation are a work in progress.