Posted on by Mark Movsesian

Van Kempen on Freedom of Religion and Criminal 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.

Posted on by roncolombo

Free Exercise Standing for the Business Corporation?

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.

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Rahdert on Trends in Taxpayer Standing to Challenge the Establishment Clause

Mark Rahdert (Temple University – James E. Beasley School of Law) has posted Court Reform and Breathing Space Under the Establishment Clause. The abstract follows.  

Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from ReligionFoundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the Establishment Clause?
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Mughal on Islamic Human Rights

Munir Ahmad Mughal (Punjab University Law College; Superior Law College; LIMIT Law College, Lahore) has posted Islamic Concepts of Human Rights. The abstract follows.

This paper deals with the Islamic concept of Human Rights with special reference to its application in Pakistan. It is heartening that the United Nations Organization is taking all such steps which are enunciated by Islam for the betterment and welfare of mankind and its dignity.

In this paper, judgements of Supreme Court of Pakistan, Federal Shariat Court and High Courts of all the provinces have also been added for facilitation of further research by all those who are interested to work for the human rights and the fundamental rights.
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Posted on by Marc O. DeGirolami

Minority Religions and Political Power

This is an informative short interview that I heard yesterday on NPR concerning the rise to political power of the Alawites in Syria, of whom current President Bashar Assad is a member.  The Alawites, as Steven Heydemann explains, were once a marginalized minority Shia sect, but they were recruited for military purposes by the French during the period of French occupation of Syria (1920-1946).  It was during this period that the Alawites began to move from outsider group to a position of greater political and military strength.

Posted on by Marc O. DeGirolami

The Anniversary of the Virginia Declaration of Rights

On this date in 1776, the Virginia Declaration of Rights was adopted by the Virginia legislature, preceding the Virginia State Constitution by a few days.  The portion dealing with religious liberty was drafted by James Madison and is generally considered to be an important antecedent to the federal constitutional right of free exercise of religion (adopted in 1791).  Here is the text of Article XVI:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Posted on by Marc O. DeGirolami

Supreme Court Declines to Hear Candy-Cane Case

The Supreme Court yesterday refused to hear a Fifth Circuit case involving the First Amendment rights of public elementary school students to discuss religion with other students and to distribute religious items, including religiously-themed candy-canes and pencils with messages such as “Jesus is the Reason for the Season,” and “Jesus loves me, this I know, for the Bible tells me so.”

The en banc Fifth Circuit held that students do have such rights, but that the public school administrators who had barred the students from exercising their rights had qualified immunity from suit because the rights were not clearly established.

The (rather long) en banc opinion is Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).

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Ching on Bonhoeffer, Church, and State

Kenneth Ching  (Regent U. School of Law ) has posted Would Jesus Kill Hitler? Bonhoeffer, Church, and State. The abstract follows.

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus, of course, did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who, while trying to “live the life of Jesus,” conspired to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) tradition. The NL2K tradition runs through St. Augustine, William of Ockham, Martin Luther, John Calvin, and many others. Some argue that Bonhoeffer rejected this tradition. This article’s descriptive thesis is that Bonhoeffer was part of the NL2K tradition. Also, a problem in the tradition is identified. Sometimes, the church has had too much influence on the state (theocratic Geneva and Puritan Massachusetts); sometimes, it has had too little (the antebellum South and Nazi Germany).

This article describes and assesses Bonhoeffer’s developments of and deviations from the NL2K tradition both theoretically and in the context of his opposition to Hitler and the Nazis. Using Bonhoeffer, this article also offers an answer to the problematic question “how much influence should the church have on the state?” The normative thesis of this article is that the state must remain religiously neutral, but the church must oppose a state that acts illegitimately.

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Calo on Faithful Presence and Theological Jurisprudence

Zachary R. Calo  (Valparaiso U. School of Law) has posted Faithful Presence and Theological Jurisprudence: A Response to James Davison Hunter. The abstract follows.

This paper considers how James Hunter’s arguments, presented both in his address and his book To Change the World, might inform the development of a constructive religious legal theory based in the particular resources of Christian theology. In speaking of religious legal theory, I mean something quite different than a theory of law and religion. For some time, the academic conversation about law and religion has centered around issues concerning church-state relations and, more broadly, the place of religion within the liberal political order. Yet, the regnant methodological concerns that have shaped this discourse reflect the boundedness of law to a modern secular imaginary. This being the case, pulling theology into deeper conversation with legal thought will require freeing law from its lingering state of captivity. Hunter’s work is particularly useful in this ground-clearing task because it offers a dense critique of the sociological assumptions that have shaped legal modernity. While his concern is not with religious legal theory as such, Hunter’s normative account of Christian being in the world, captured most fully in the idea of faithful presence, contains important resources for developing a model of Christian engagement with law.

Posted on by Mark Movsesian

Tomorrow at Kellogg College (Oxford)

For CLR Forum readers in the neighborhood, the Centre for Religion in Public Life at Kellogg College (Oxford) will host a lecture tomorrow, “Religious Diversity, Exclusivism, and Public Life,” by Dr. Olli Pekka Vainio of Helsinki University. The lecture is at 5:00 pm.  For details, please contact Kellogg College.