Mark’s new piece is up at the Oxford Journal of Law and Religion, Crosses and Culture: State-Sponsored Religious Displays in the US and Europe. Comparativists and students of religious liberty will enjoy and learn a lot from the piece. The abstract follows.
This article compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious ‘neutrality’, but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favour a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, in contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give ‘preponderant visibility’ to the symbols of traditionally dominant churches. The different conceptions of neutrality reflect institutional and cultural realities. In particular, the differences reflect what sociologists of religion describe as the ‘American’ and ‘European’ religious models.
Because issues of methodology are of special interest to me, here are some of Mark’s reflections on that question — and in particular about the function of comparative scholarship — in the conclusion to the piece (I have omitted the footnotes, which you can chase down in the piece):
My purpose in this article has been comparative and critical: I have attempted to explain different legal regimes in terms of fundamental institutional and cultural commitments. Comparative work, particularly interdisciplinary comparative work, is still a bit new in law and religion scholarship. As Grace Davie recently has written, law and sociology ask different questions and rely on different methods; ‘conversations’ between lawyers and sociologists can therefore be ‘difficult’. Nonetheless, such conversations are essential. For law both reflects and influences underlying social conditions. In Mary Ann Glendon’s phrase, ‘law, in addition to all the other things it does, tells stories about the culture that helped to shape it and which it in turn helps to shape: stories about who we are, where we came from, and where we are going’. The law on state-sponsored religious displays reveals very different understandings about the place of religion in American and European society. This article is an effort to illuminate those understandings and contribute to an emerging path in law and religion scholarship.
Yuval Merin (COMAS) has posted a new article on SSRN, Recognizing Foreign Marriages of Couples Ineligible for Religious Marriage in Israel–A New Perspective of Choice of Law and Public Policy (in Hebrew). The abstract follows.
The Israeli laws of marriage and divorce are governed exclusively by religious law. Several groups of the Israeli population are completely excluded from the institution of marriage due to a long list of religious restrictions and impediments. Couples ineligible for religious marriage include persons “disqualified for religious marriage”; interfaith couples; persons without a recognized religion; and same-sex couples.
Such couples can only marry abroad. Upon their return to Israel, they may register as “married” in the Population Registry and may enjoy a few of the rights associated with the institution, but their marriages are unrecognized for most other purposes. Since the field of marriage recognition is not regulated under Israeli positive law, the courts will have to decide whether to apply the English personal law system or the American principle of lex loci celebrationis. A critical comparison between the two competing systems reveals that the American rule is preferable since it best promotes the policy objectives which choice of law rules in the field of marriage recognition should seek to achieve. It is also preferable since it best corresponds to the unique social and legal conditions prevalent in the State of Israel. Foreign marriages performed by Israeli couples ineligible for religious marriage (valid in the place of celebration) should thus be recognized, subject to the public policy exception. Religious norms, which are exclusively applied in matters of marriage and divorce within Israel, should not be considered in the framing of the public policy exception, which should be interpreted narrowly, as protecting only democratic, secular, rational and liberal values. Thus, the foreign marriages of couples who are single, adult, and unrelated to one another, and whose marriage in Israel is prohibited due to purely religious restrictions, should be fully recognized under Israeli private international law.
Piet Hein Van Kempen (Radboud University Nijmegen) has posted a new piece on SSRN, Freedom of Religion and Criminal Law: A Legal Appraisal–From the Principle of Separation of Church and State to the Principle of Pluralist Democracy?. The abstract follows.
This paper discusses how criminal law and religion should or should not be involved with each other from the point of view of the right to freedom of religion. With that in mind the paper addresses several interrelated questions. What does the principle of separation of church and state require, what interests does it serve, and does it allow for criminal law measures that are explicitly concerned with matters of religion or belief? What does the human right to freedom of religion in general imply about the relation between state and religion? To what extend does the right to freedom of religion oppose, allow or require criminal law measures that deal explicitly with religion or belief? Issues discussed here are e.g. blasphemy, apostasy, an proselytism. And finally: is the principle of pluralist democracy better suited to regulating the relation between the state and religion when it comes to criminal law than the separation principle? As regards the analyses of international human rights law, the emphasis of this contribution is the International Covenant on Civil and Political Rights (ICCPR, 1966) and the European Convention on Human Rights (ECHR, 1950). The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (the 1981 UN Declaration), the American Convention on Human Rights (ACHR, 1969), and the African Charter on Human and People’s Rights (AfChHPR, 1981) will be considered insofar as these instruments or the jurisprudence based thereon provide relevant direction on the issues under discussion.
I have long pondered the question of whether a for-profit business corporation ought to be afforded standing under the Free Exercise Clause. The issue has not been addressed at length in the case law – in fact, those rare courts to have been presented with it have usually found a way to side-step the issue and resolve the matter on other grounds.
I certainly believe the argument for such standing is stronger than ever in the wake of Citizens United, which afforded for-profit corporations the full protections of the First Amendment’s free speech rights.
If the Supreme Court fails to strike down ObamaCare (a decision which should be arriving any day now), it may have to address this question. For a handful of plaintiffs in the lawsuits against ObamaCare’s contraceptive / sterilization / abortiofacient mandate consist of for-profit business corporations that are pressing free-exercise claims.