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Garnett on Religious Discrimination

Richard W. Garnett (Notre Dame Law School) has posted Religious Freedom and the Nondiscrimination Norm. The abstract follows.

“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take regulatory and other steps to prevent, discourage, and denounce it. However, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it even when it is. Some wrongs are beyond the authorized reach of government policy; some are too difficult or costly to identify, let alone regulate; others are none of the government’s business.

When we say that “discrimination” is wrong, what we actually mean is that wrongful discrimination is wrong, and when we affirm that governments should oppose it we mean that governments should oppose it when it makes sense, all things considered, and when it is within their constitutionally and morally limited powers to do so. To label a decision or action “discrimination” is simply to note that one factor or another was or will be taken into account in the course of a decision; it is to invite, but not at all to answer, the questions whether that decision or action was or would be wrong, and whether the public authority may or should forbid or discourage it.
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Emon, “Religious Pluralism in Islamic Law”

In November, Oxford University Press will publish Religious Pluralism in Islamic Law (OUP November 2012) by Anver M. Emon (U. of Toronto’s Faculty of Law). The publisher’s description follows.

The question of tolerance and Islam is not a new one. Polemicists are certain that Islam is not a tolerant religion. As evidence they point to the rules governing the treatment of non-Muslim permanent residents in Muslim lands, namely the dhimmi rules that are at the center of this study. These rules, when read in isolation, are certainly discriminatory in nature. They legitimate discriminatory treatment on grounds of what could be said to be religious faith and religious difference. The dhimmi rules are often invoked as proof-positive of the inherent intolerance of the Islamic faith (and thereby of any believing Muslim) toward the non-Muslim.
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Augustine & Augustine on Religion, Race and the Fourth Estate

Jonathan C. Augustine (United Theological Seminary) and Roslyn Satchel Augustine have posted Religion, Race and the Fourth Estate: Xenophobia in the Media Ten Years after 9/11. The abstract follows.

September 11, 2011 marked the tenth anniversary of the most horrific attacks in the United States. In the decade after the September 11, 2001 attacks (9/11), matters of race and religion maintained an awkwardly prominent role in American culture, with the media arguably fueling perceptions. This interdisciplinary Article’s thesis is that media elites, most of which are large corporations, threaten American democracy with xenophobic influence in an age of unmediated communication. Thus, the frequent imagery of “us” versus “them” has exasperated religious tensions between Judeo-Christian faith groups and religious minorities.

In the wake of the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, corporate media entities are now able to control the news and the newsmaker, with free speech that has become very costly. Indeed, empirical studies and research show that media has misused its trusted status as the proverbial “fourth branch of government,” because of capitalism and consumerism. Moreover, in an effort to increase ratings and associated advertising dollars, media has reinforced stereotypes by marketing and essentially selling fear as part of the War on Terror. The authors seek to prove their thesis by emphasizing the historical significance of the First Amendment’s individual protections, examining deregulation and the media’s profit-making interests, and criticizing the Citizens United decision as creating an inherent conflict of interest for media corporations, considering their proven interest in “selling” news for pecuniary gain.

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The Interminable SSPX-Vatican Rapprochement

Mark has written about the SSPX (the Priestly Fraternity of St. Pius X) here and here.  As Mark mentioned, the SSPX is a canonically irregular Catholic group with a traditionalist orientation (in terms of liturgy, discipline, and doctrinal interpretation).  I had hoped to report upon the group’s full re-integration into the Catholic Church this month – which is something that well-founded rumours had predicted.  Alas, the latest indication is that if such a re-integration occurs, it will occur in July at the earliest.  As this is a story that I’ve been following closely for some years now, I thought I’d spend a post laying the situation out and offering a few observations.

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Posted on by Mark Movsesian

Akçam, The Young Turks’ Crime Against Humanity

The Armenian Genocide of 1915 had many causes, but one major factor was sectarian hatred, exacerbated by Christians’ assertions of equality under Ottoman law — assertions that contradicted traditional Islamic law.  Clark University historian Taner Akçam has done a new study of the Genocide, The Young Turks’ Crime Against Humanity: The Armenian Genocide and Ethnic Cleansing in the Ottoman Empire (Princeton 2012), which highlights the event’s religious dimensions. The publisher’s description follows.

Introducing new evidence from more than 600 secret Ottoman documents, this book demonstrates in unprecedented detail that the Armenian Genocide and the expulsion of Greeks from the late Ottoman Empire resulted from an official effort to rid the empire of its Christian subjects. Presenting these previously inaccessible documents along with expert context and analysis, Taner Akçam’s most authoritative work to date goes deep inside the bureaucratic machinery of Ottoman Turkey to show how a dying empire embraced genocide and ethnic cleansing.

Although the deportation and killing of Armenians was internationally condemned in 1915 as a “crime against humanity and civilization,” the Ottoman government initiated a policy of denial that is still maintained by the Turkish Republic. The case for Turkey’s “official history” rests on documents from the Ottoman imperial archives, to which access has been heavily restricted until recently. It is this very source that Akçam now uses to overturn the official narrative.

The documents presented here attest to a late-Ottoman policy of Turkification, the goal of which was no less than the radical demographic transformation of Anatolia. To that end, about one-third of Anatolia’s 15 million people were displaced, deported, expelled, or massacred, destroying the ethno-religious diversity of an ancient cultural crossroads of East and West, and paving the way for the Turkish Republic.

By uncovering the central roles played by demographic engineering and assimilation in the Armenian Genocide, this book will fundamentally change how this crime is understood and show that physical destruction is not the only aspect of the genocidal process.

Posted on by Marc O. DeGirolami

Mathewes Reviews Wade and Bellah

Check out this thoughtful and learned review by (sometime CLR Forum commenter and — we hope! — regular reader!) Prof. Charles Mathewes (UVA) of two books on the ‘evolutionary’ study of religion — Nicholas Wade’s The Faith Instinct: How Religion Evolved and Why It Endures and Robert Bellah’s Religion and Evolution: From the Paleolithic to the Axial Age.  It’s fair to say that Prof. Mathewes is more a fan of Bellah’s book than Wade’s; take a look at the review for why.  Here’s a very interesting (and, for me, even somewhat heart-warming) bit from the description of Bellah’s book:

The basic point of the book is not so much Durkheimian or Weberian—the two great tribes of sociology, especially sociology of religion—but Faulknerian; he echoes Faulkner’s famous line, “The past isn’t dead. It isn’t even past.” “Nothing is ever lost” is Bellah’s near-constant mantra; the habits, patterns, reflexes and modes of behavior we acquired in our primate prehistory continue to shape our individual behavior and social order. While these realities remain powerful forces, we have achieved some relative autonomy from them and thus some power to shape how they affect us. We can cultivate some parts of our inheritance and create protective strategies against other aspects, as we judge best. We have, that is, the ability to be partially self-transcendent. And this capacity is part of the story of evolution, as Bellah tells it, which is not the necessary unfolding of a foreordained script, or the development of snug little functional niches for the way the world works today, but rather a chaotic, highly contingent and ironic tale of agents interacting, reacting and responding to the situations, contexts and environments in which they have found themselves. 

Posted on by Mark Movsesian

Temperman on Extreme Speech

Jeroen Temperman (Erasmus University Rotterdam) has posted a new piece on SSRN, Freedom of Expression and Religious Sensitivities in Pluralist Societies: Facing the Challenge of Extreme Speech. The abstact follows.

Within the European Convention system, judgments have supported legal restrictions on hate speech, but also on blasphemy or religious defamation. The universal human rights instruments, particularly the ICCPR, are increasingly geared towards eradicating hate speech (speech that threatens the rights and freedoms of others), whilst forms of extreme speech that fall short of that category are to be protected rather than countered by states. The Human Rights Committee’s recently adopted General Comment (No. 34) on freedom of expression, provides another strong indication that this is the envisaged way forward: repealing blasphemy and defamation bills, whilst simultaneously increasing the efforts to combat hate speech. This paper argues that it remains ever so important to continue taking stock of the legal justifications for restrictions that are suggested in this area and to scrutinize whether they are in fact sustainable from a human rights perspective –– not only on paper, but also in actual practice. The paper compares and contrasts the universal monitoring bodies’ approach to extreme speech with that of regional monitoring bodies, notably the European Court of Human Rights.

Posted on by Mark Movsesian

Goldenziel on Courts in Majority-Muslim Countries

In the conflict between Islamists and secularists in majority-Muslim countries, courts can play a major role. Yesterday, for example,  Egypt’s Supreme Constitutional Court issued rulings allowing a former Mubarak loyalist to run for president and effectively dissolving the country’s Islamist-dominated parliament — clear victories for executive power and supporters of the old regime. A new piece by Jill Goldenziel (Harvard), Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts, suggests that the situation is more complicated, however. Courts in majority-Muslim countries do not always side with executive power. Even in Egypt, there are tensions between the SCC, which the Mubarak regime brought to heel, and the High Administrative Court, which remained more independent.  Her piece makes for interesting reading. The abstract follows.

This article explains how judicial independence can develop in regimes that are not fully democratic. Conventional wisdom holds that a strong legislature and political parties are necessary for the emergence of an independent judiciary. This article challenges conventional wisdom by explaining how judicial independence may arise in regimes where these conditions are not present. It presents a theory of how judicial independence emerges and why and when other political actors will respect it. The article also explains why courts may be better poised than legislatures to counter executive power in non-democracies. The theory is developed through a discussion of cases involving Islamic headscarves and veils in Middle Eastern courts. These cases have broad political implications because Read more

Posted on by Marc O. DeGirolami

Movsesian on State-Sponsored Religious Displays in the US and Europe

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. 

Posted on by Mark Movsesian

Merin on Religious Marriage in Israel

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.