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Carpenter on Individual Religious Freedoms in American Indian Tribal Constitutional Law

Kristen A. Carpenter (U. of Colorado Law School) has posted Individual Religious Freedoms in American Indian Tribal Constitutional Law. The abstract follows.

Written on the 40th Anniversary of the Indian Civil Rights Act, this article engages with a prominent critique of individual rights in tribal communities, namely that they effectuate the ‘assimilation’ of tribal people, values, and institutions. On the one hand, because American Indian religions emphasize collective values and experiences, this critique is particularly apt in the religion context, and the imposition of individual rights norms recalls the federal government’s historic efforts to destroy tribes by eradicating tribal religious practices. Moreover, in many tribal communities, religion is conceptualized and practiced not in terms of ‘rights’ but rather ‘duties’ to other people, plants, animals, natural features, and the ceremonies themselves. On the other hand, some Indian tribes have historically recognized personal liberties in spiritual practices, and now consider it an obligation of self-government to protect individual interests in religion. This article explores these themes, particularly as they manifest in tribal constitutional law, which reveals a broad spectrum of rights and duties, individual and collective protections. The article also elaborates on several ways that tribes recognize individual rights in the context of tribal culture, namely using tribal custom as a basis for interpreting positive law on individual religious rights, maintaining separate institutions for the resolution of legal disputes about religion, and engaging in constitutional reform to change religious rights provisions that are inconsistent with tribal values. In the final analysis, the article observes that that while many challenges remain, tribal governments often try to facilitate individual and collective interests in religious freedom today.

 

Posted on by Marc O. DeGirolami

Law and Religion Events at Touro

Courtesy of CLR friend Sam Levine, here are a few events at Touro Law Center which look terrific and may be of interest to readers.

First, Nathan Lewin will be giving a lecture on March 20 entitled, “The Legal Profession and the Orthodox Jewish Lawyer — Change Over Half a Century.”  Details here.

Second, on May 2-4, Touro is hosting the biennial Conference of Religiously Affiliated Law Schools, with the theme: “The Place of Religion in the Law School, the University, and the Practice of Law.”  The full conference announcement with speakers listed is here.  My colleague, Mark, will be speaking at the conference.

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Stahl on Local Government, Vote Appropriation and “the Jewish Question”

Kenneth Stahl  (Chapman U. School of Law) has posted Local Government, One Person/One Vote, and the Jewish Question. The abstract follows.

This article argues that the Supreme Court’s jurisprudence regarding the application of the ‘one person/one vote’ rule to local governments, while often considered hopelessly confused, actually contains an internal logic that reflects the ambiguous legacy of the Enlightenment in this country. There are three broad strands within the one person/one vote jurisprudence: the first, beginning with Avery v. Midland County, requires cities to apportion votes based on a ‘one person/one vote’ principle; the second, exemplified by Ball v. James, permits certain municipalities to apportion votes according to a ‘one dollar/one vote’ formula; and a third, captured in Holt Civic Club v. City of Tuscaloosa, gives the state plenary power to allocate votes with regard to some local government matters. Although these three strands seem impossible to reconcile, they are all consistent with an Enlightenment jurisprudential project to consolidate the power of the central state by suppressing the ability of entities exercising authority over particular territories, such as local governments, to challenge the state’s hegemony. Read more

Posted on by Marc O. DeGirolami

Shinar & Su on Analogies Between Religious Law and Foreign Law

Adam Shinar and Anna Su, both SJD students at Havard Law School, have written a provocative paper, Religious Law as Foreign Law in Constitutional Interpretation.  Unfortunately only the abstract is available at present, but those wishing to see the paper in full should contact the authors.  The abstract is below, followed by some little thoughts about the piece.

This article challenges the conventional understanding of the separation of church and state by arguing that there is no analytical or constitutional problem with using religious law for the purpose of constitutional interpretation. We situate our arguments within the context of the broader debate on the use of foreign law in constitutional interpretation, and the more recent controversy surrounding the proposed bans on the use of religious law in U.S. state courts. By examining the arguments for and against the use of foreign law, we show how they equally apply to the use of religious law. More importantly, we conclude that differences between foreign law and religious law are, at best, differences of degree rather than kind, and thus do not militate against the use of religious law in constitutional interpretation. The article demonstrates that religious law can be used, and in fact, has already been used by the Supreme Court for four limited purposes, none of which, we argue, offends the principles underlying the Establishment Clause.

The paper begins by considering several criticisms that are made of the use of foreign law in constitutional adjudication — relevance, selectivity and accuracy, and political legitimacy — and it argues that each of these criticisms is equally applicable conceptually to religious law.  The paper then addresses each of these criticisms as applied to foreign/religious law; it takes a quite strong view that each of the criticisms misfires.  

The most interesting and effective part of the paper (for me) deals with the possible Establishment Clause distinction between reliance on foreign law and reliance on religious law.  The authors write:

[N]otwithstanding the recent shift from the strict separationist view that was the logical byproduct of the Jeffersonian wall to the accomodationist view that started with the move to the endorsement theory of the Clause, it did not stop the often obscured fact that the Supreme Court has regularly referred to religious laws in its decisions.  Thus, the Court could cite both the New Testament and Mosaic Law in interpreting the Treason Clause,  the Sixth Amendment, the Fourth Amendment,the Due Process Clause,and also for prescribing guidelines for criminal sentencing.  In the controversial case of Miranda v. Arizona,the Court traced the roots of the privilege against self-incrimination, and cited the teaching of Maimonides, a 13th century rabbi and one of the greatest exponents of Jewish law, tounderscore its historical importance.

The authors then list four possible uses to which religious law might be put in a judicial opinion — to show historical genesis, as interpretive reinforcement, for evidentiary purposes, and as persuasive authority.  They claim that none of these uses — even the last — is problematic under the Establishment Clause. 

Posted on by Mark Movsesian

Paris Mayor Opposes New Cathedral

Bernard Delanoe, the Mayor of Paris, this week expressed his opposition to a proposed Russian Orthodox Cathedral on the banks of the Seine near the Eiffel Tower. According to Reuters’s FaithWorld blog, Delanoe’s opposition has nothing to do with religion. He simply thinks the proposed design of the cathedral, with onion-shaped domes and a wavy glass roof, lacks éclat. The design is “mediocre architecture conceived in haste,” he complains. France gave its approval for the project two years ago — “without the agreement of the city of Paris,” Delanoe notes — and Delanoe seems to lack authority to stop it now. In fact, he’s asking for UNESCO, the UN body that granted protected “World Heritage Site” status to the Seine riverbank,  to intervene “so that no permission” for construction “can be given without the endorsement of international experts.” Wonder if France has a version of RLUIPA.

Posted on by Mark Movsesian

More on Taxing the Church in Italy

Following up on an item we covered in December, a law clarifying the Catholic Church’s responsibility for property taxes is making its way through the Italian Parliament. Although media reports describe the law as controversial, it actually breaks little new ground, Time Magazine reports. Since 2005, the Church has had to pay tax on property it uses for commercial purposes; the Church does not object to that. Property used for non-commercial (religious and non-profit) purposes remains exempt; no one, except perhaps the Radical Party, seems to object to that. The only controversy is what to do with mixed-use property: property that is used for religious and commercial purposes, like a convent that contains a chapel as well as a few rooms for tourists. Under the new law, only those parts of mixed-use property that are used for commercial purposes would be subject to tax. Religious entities would be required to account for which parts of their property are in fact used for commercial purposes. The law’s opponents argue that this arrangement is susceptible to abuse; in a country where tax enforcement is so lax, they argue, no one is likely to check the accounting.

Posted on by Marc O. DeGirolami

The Catholic Church’s Mediating Role in Cuba

Here’s a very interesting piece about the relations between Cuba and the Catholic Church (h/t John Barrett).  It highlights the mediating role that the Church has taken with the Castro regime, and how taking “the long view” seems to have been both shrewd and effective in various political and cultural ways.  A bit:

When Pope Benedict XVI visits Cuba next month, he will once again reinforce a strategy that the Vatican has allowed the local Catholic Church there to pursue for more than three decades: diligently avoid any political confrontation with the Castro regime, collaborate with Havana to combat the U.S.-led embargo, and support the Cuban government’s incremental economic reforms. In exchange, the Church has been able to maintain a certain amount of autonomy on the island, allowing it to rebuild its presence and position for the possible post-Castro economic boom times to come.

It is a controversial balance. Cubans in the exile community vigorously criticize the Church because they think Church leadership on the island should challenge the dictatorship. But the Vatican takes the long view. Rather than overtly push for change, the Church has come to pursue a strategy of “reconciliation.” It has inserted itself as mediator between the regime and its most daring opponents, both those imprisoned and those out in the streets. The Church is present and persistent, but it is nonpartisan. The attitude harkens back to the ostpolitik it practiced during the Cold War — in most communist countries, especially in those where Catholics were a minority, clergy hunkered down, ministered to the faithful, and survived. Today, in countries ranging from Albania and Montenegro to Romania and Ukraine, Catholic communities are thriving.

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Louër, “Shi’ism and Politics in the Middle East”

From Columbia University Press, a new book by Laurence Louër (research fellow at CERI/ SciencesPo in Paris), Shi’ism and Politics in the Middle East (forthcoming May 2012). The publisher’s description follows. 

Laurence Louër’s timely study immediately precedes the recent outbreak of unrest in Bahrain, triggering the escalation of the so-called Arab Spring of 2011. In addition to issues relating to the role of Shiite Islamist movements in regional politics, Louër provides background for the Bahraini conflict and Shiism’s wider implications as a political force in the Arab Middle East.

Louër’s study depicts Bahrain’s troubles as a phenomenon rooted in local perceptions of injustice rather than in the fallout from Shiite Iran’s foreign policies. More generally, her work argues that although Iran’s Islamic Revolution had an electrifying effect on Shiite movements in Lebanon, Iraq, Saudi Arabia, and the Gulf, in the end local political imperatives are the crucial driver of developments within Shiite movements—though Lebanon’s Hezbollah remains an exception. In addition, the rise of lay activists within Shiite movements across the Middle East and the emergence of Shiite anticlericalism has diminished the overwhelming influence of the Shiite clerical institution. Ultimately, Louër dispells the myth that Iran determines the politics of Iraq, Bahrain, and other Arab states with significant Shiite populations. Her book couldn’t be more necessary as revolution continues to spread across the Middle East.

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Simon-Shoshan, “Stories of the Law”

This month, Oxford University Press published Stories of the Law: Narrative Discourse and the Construction of Authority in the Mishnah (OUP March 2012) by Moshe Simon-Shoshan (Rothberg International School – Hebrew University).  The publisher’s description follows.

Moshe Simon-Shoshan offers a groundbreaking study of Jewish law (halakhah) and rabbinic story-telling. Focusing on the Mishnah, the foundational text of halakhah, he argues that narrative was essential in early rabbinic formulations and concepts of law, legal process, and political and religious authority.

The book begins by presenting a theoretical framework for considering the role of narrative in the Mishnah. Drawing on a wide range of disciplines, including narrative theory, Semitic linguistics, and comparative legal studies, Simon-Shoshan shows that law and narrative are inextricably intertwined in the Mishnah. Narrative is central to the way in which the Mishnah transmits law and ideas about jurisprudence. Furthermore, the Mishnah’s stories are the locus around which the Mishnah both constructs and critiques its concept of the rabbis as the ultimate arbiters of Jewish law and practice.  Read more