Jeroen Temperman (Erasmus University Rotterdam) has posted Religious Symbols in the Public School Classroom. The abstract follows.
This paper flags a couple of preliminary legal questions that are remarkably often ignored or trivialized by (international) courts. Underscoring the importance of identifying primary rights holders, genuine conflicting interests, and the obligations of duty bearers in symbol cases, this contribution illustrates that much depends on who can be identified as ‘symbol-displayer’ and who as ‘symbol-viewer’ and within which particular (public) setting. Focusing on public school education, the paper addresses such questions as under what circumstances may State neutrality be considered a legitimate ground for limiting fundamental rights. And who is actually supposed ‘to be neutral’ according to human rights law –– States, buildings, the ‘public square’, civil servants, teachers, students, and/or pupils? When does a symbol truly ‘interfere’ with the rights and freedoms of others or with public order? And who is to prove that? Also, what are the exact standards of proof in symbols cases?
Robert C. Blitt (University of Tennessee College of Law) has posted Defamation of Religion: Rumors of its Death are Greatly Exaggerated. The abstract follows.
This Article explores the recent decisions by the United Nations (“UN”) Human Rights Council and General Assembly to adopt consensus resolutions aimed at “combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief.” These resolutions represent an effort to move past a decade’s worth of contentious roll call votes in favor of prohibiting defamation of religion within the international human rights framework. Although labeled “historic” resolutions, this Article argues that the UN’s new compromise approach endorsed in 2011 — motivated in part by the desire to end years of acrimonious debate over the acceptability of shielding religious beliefs from insult and criticism — is problematic because it risks being exploited to sanction the continued prohibition on defamation of religion and perpetuation of human rights violations on the ground.
After briefly considering the history of defamation of religion at the UN and the strategies employed by its proponents, this Article turns to an assessment of the UN Human Rights Council’s 2011 consensus Resolution 16/18. In light of the resolution’s objectives, this Article explores the viability of the international consensus around “combating intolerance” and tests to what extent, if any, the concept of defamation of religion may be waning in practice. To this end, this Article weighs, among other things, statements and resolutions of the Organization of Islamic Cooperation (“OIC”) pertaining to defamation — particularly those issued following the adoption of Resolution 16/18 — as well as its activities in other UN bodies. Read more
When we look at the existing historiography of American contributions to human rights abroad, there tends to be a rather triumphalist streak to it. In some ways, there is a lot of truth to those claims. That the international human rights regime today bears a large American imprint stands in an uneasy irony with a long domestic history of aversion towards international commitments and entanglements. The saga of the Bricker amendment is the foremost example that comes to mind.
But perhaps it is not ironic at all. Even the late Louis Henkin who celebrates international human rights as projections of American constitutional rights around the world acknowledged that the U.S. tends to embrace human rights wholeheartedly if they are intended for export. In a previous post, I recounted the story of Woodrow Wilson and his efforts to promote religious freedom internationally through the League of Nations covenant. But my story/dissertation does not start with the League Covenant. It starts in 1898, when the U.S. emerged on the world stage as a recognized global power. By and large, the story resembles, in broad outline, Saba Mahmood’s articulation of the politics of religious freedom as one that is intimately tied to the history of European domination of the non-Western world. My story is only concerned with the United States, for now at least, partly because of autobiographical reasons. But in seeking to show this connection between freedom and power, of which the U.S. example seems almost perfect because of its exceptionalist tradition, I also want to look at this history and use it to move beyond debates created by this history. Even if the roots are poisoned, possibilities of redemption remain nevertheless. At least this is my hope.
What I found interesting during the course of my research is a peculiar observation. Similar to the domestic story of American religious freedom which is bigger and broader than the corpus of Religion Clause jurisprudence (a glaring contemporary example is that there is no case, at least on the Supreme Court level which tracks the rise of Islamophobia in the post-9/11 U.S.; the anti-Sharia state constitutional amendments which have been proposed since then are the best indicators, it seems but aside from the one in Oklahoma, they have never been litigated in courts), the external story of American religious freedom insofar as domestic ideas of religious freedom were projected in laws abroad does not also map neatly into any of the existing trends found in Supreme Court cases involving religious liberty, save perhaps for Reynolds. But while language found in existing cases shape, and therefore, also constrain, the way in which the domestic story unfolds, how it is discussed and debated, no such thing occurs in the foreign affairs realm. This question is at the heart of a side project I am currently working on, and which I’ll elaborate on more in a future post, but the one thing I wanted to point out is the disconnect between what happens inside and outside and more importantly, what that disconnect entails.
I was pleased to participate in a panel at Yale Law School yesterday sponsored by the Catholic Law Students’ Association and the St. Thomas More Chapel dealing with the HHS Mandate. I learned a great deal from my co-panelists, Matthew Boudway of Commonweal and Ashley McGuire of the Becket Fund. I thought I could make myself most useful by focusing on the federal legal framework within which the mandate is likely to be assessed, and my comments drew from many of the posts and discussions about it here at CLR Forum (with maybe a little more emphasis on the individual assessment exception to Smith than some might think warranted). And I was pleased at the number of interested folks who attended and the thoughtfulness of the questions.
Thanks to Christian Burset for putting the event together.
Here is an interesting and generally very favorable review by Michael Kimmage (History, CUA) of Andrew Preston recent book, Sword of the Spirit, Shield of the Faith: Religion in American War and Diplomacy (Knopf 2012), which was noted by our guest, Anna Su, here. Perhaps Anna will have some thoughts about the review. A bit from Kimmage:
Preston’s new book on religion and foreign policy . . . is about America and Americans. In over six hundred pages, Preston charts the scope and the centrality of religion in American politics, from the seventeenth century to the present. This book merges American history with the history of Christianity, and in doing so it qualifies the story of Christian empire. Unlike the Christian empires of the past, America has never had an established church. Nor did the American Revolution result in empire. The animating spirit behind much of Preston’s narrative is Christian republicanism, and no Christian republic has ever had the territory or the influence or the power that the United States would come to possess.
Preston’s argument is worth outlining in detail. It has the shape of a double helix. One strand entails the melding of Christian sentiment with state power, through diplomatic maneuvers and the waging of war. This is the sword of the spirit, cherished by the Puritans and by George W. Bush alike. The other strand inverts the ideal of the church militant, appealing instead to a Christian hunger for international peace, for the beating of swords into ploughshares, for a fraternity of nations liberated from war. This is the shield of faith. Preston weaves these metaphors, both taken from Paul’s letter to the Ephesians, into a sweeping historical analysis.