Posted on by Mark Movsesian

Church of England Rejects Proposal to Legalize Same-Sex Marriage

In a report today, the Church of England rejected as “flawed, conceptually and legally,” the Cameron government’s proposal to legalize same-sex marriage. Conceptually, the report argues, the proposal would “alter the intrinsic nature” of marriage as a union between one man and one woman. Notwithstanding the “genuine mutuality and fidelity” often found in same-sex relationships, the report states, the C of E felt bound to resist the proposal both for reasons of Christian faith and the Church’s “commitment, as the established church in England, to the common good of all society.”

The report argues that the government’s proposal, which purports to apply only to civil marriage, raises serious legal questions. The distinction between “civil” and “religious” marriage, an innovation in English law, is likely to be untenable in the long run, the report predicts. English law grants any resident, regardless of his or her religious affiliation, the right to marry in the local C of E parish (a great illustration, by the way, of Grace Davie’s point about religion’s public role in Europe). Once Parliament defines marriage to include same-sex marriages, could a parish church deny this right to same-sex couples? The C of E is doubtful. Even if Parliament were to allow C of E parishes to refuse to perform same-sex marriages, the ECtHR might not. Under existing ECtHR caselaw, once a state legalizes same-sex marriages, those marriages are covered by article 12 of the European Convention, which grants a right to marry, and article 14, the Convention’s anti-discrimination provision. Under these articles, a state church could justify a distinction between “civil” and “religious” same-sex marriages only by “very weighty reasons.” The report is skeptical that the ECtHR would ultimately allow the distinction to stand.

Critics immediately characterized the report as alarmist. Maybe it is. Given the recent vote of the Danish parliament requiring the Church of Denmark to perform same-sex marriages, though, it’s hard to completely dismiss the report’s concerns. It’s possible that, in time, either Parliament or the ECtHR would require the C of E to solemnize same-sex marriages, whatever the C of E’s religious objections. Of course, the problem may lie in the concept of the state church itself; the autonomy of a private church on religious questions would likely be more secure, particularly in light of the ECtHR’s recent Fernandez Martinez decision. But the Brits decided all that under the Tudors.

Posted on by roncolombo · 2 Comments

Benefit Corporations

Earlier this year, New York became the seventh state to recognize an interesting new category of business: the “benefit corporation.”

Unlike the typical for-profit corporation, which must be run to maximize shareholder profits, the benefit corporation is explicitly enabled to balance its profit-maximization objective with some other “public benefit” of its choosing.  The statute sets forth a list of qualifying “public benefits,” which includes a variety of worthwhile causes.  Conspiciously absent from this list is anything having to do with religion.

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Posted on by Marc O. DeGirolami

Ahmed & Luk on Religious Arbitration and Autonomy

A new piece just published in the Oxford Journal of Law and Religion by Farrah Ahmed (Melbourne) and Senwung Luk (private practice), How Religious Arbitration Could Enhance Personal Autonomy.  Readers should be put in mind of the excellent papers and posts by our former guest, Michael Helfand, as well as the work of colloquium presenter and CLR friend Ayelet Shachar.  The abstract follows.

The public debate on religious arbitration often assumes that certain liberal autonomy-based arguments against state recognition of religious arbitration in family law matters are conclusive, ie that religious arbitration necessarily harms personal autonomy. This article challenges that assumption and highlights the autonomy-enhancing potential of religious arbitration. We argue that the state recognition of religious arbitration has the potential to enhance autonomy by facilitating the option of religious practice. We argue that religious arbitration has the potential to enhance the autonomy of religious persons by providing them access to religious expertise. Finally, we indicate how the recognition of religious arbitration protects the autonomy of some by keeping them from a possible autonomy-diminishing alternative.

Posted on by Marc O. DeGirolami

What Does It Mean for a Right to be Inalienable?

I’m a bit late in pointing up this insightful column by James Rogers about the meaning of an inalienable right.  We read the Declaration of Independence at the beginning of our constitutional law class this year, passing over its language about “unalienable Rights,” but I did not think to ask Professor Rogers’s question.  I’ll certainly do so next year, as the notion that there are rights that cannot be given away even voluntarily is a worthwhile provocation with which to launch the class.

Posted on by Mark Movsesian

Müller, “The Criminalization of Abortion in the West”

Fordham historian Wolfgang P. Müller has written a new book on the origins of criminal punishment for abortion in western law, The Criminalization of Abortion in the West (Cornell 2012). The publisher’s description follows.

Anyone who wants to understand how abortion has been treated historically in the western legal tradition must first come to terms with two quite different but interrelated historical trajectories. On one hand, there is the ancient Judeo-Christian condemnation of prenatal homicide as a wrong warranting retribution; on the other, there is the juristic definition of “crime” in the modern sense of the word, which distinguished the term sharply from “sin” and “tort” and was tied to the rise of Western jurisprudence. To find the act of abortion first identified as a crime in the West, one has to go back to the twelfth century, to the schools of ecclesiastical and Roman law in medieval Europe.

In this book, Wolfgang P. Müller tells the story of how abortion came to be criminalized in the West. As he shows, criminalization as a distinct phenomenon and abortion as a self-standing criminal category developed in tandem with each other, first being formulated coherently in the twelfth century at schools of law and theology in Bologna and Paris. Over the ensuing centuries, medieval prosecutors struggled to widen the range of criminal cases involving women accused of ending their unwanted pregnancies. In the process, punishment for abortion went from the realm of carefully crafted rhetoric by ecclesiastical authorities to eventual implementation in practice by clerical and lay judges across Latin Christendom. Informed by legal history, moral theology, literature, and the history of medicine, Müller’s book is written with the concerns of modern readers in mind, thus bridging the gap that might otherwise divide modern and medieval sensibilities.

Posted on by Marc O. DeGirolami

Mt. Soledad Cross Case Either Relisted or Held [UPDATE]

This morning’s Supreme Court order list does not mention the Ninth Circuit Mt. Soledad cross case.  Scotusblog is reporting that it has either been relisted for this Thursday’s conference or held for further consideration at some future date.  See this entry for earlier discussion.  More information when it is known.

UPDATE: Lyle Denniston reports that the case is on for Thursday’s conference.

Posted on by Mark Movsesian

Esmeir, “Juridical Humanity”

In recent opinion polls, a majority of Egyptians say they would like Sharia to be the only source of law in their country. Some maintain that calls for a return to Sharia reflect a resentment of the European legal systems forced on Egypt during the imperialist period. Berkeley professor Samera Esmeir’s new book, Juridical Humanity: A Colonial History (Stanford 2012) undoubtedly sheds light on the subject. The publisher’s description follows:

In colonial Egypt, the state introduced legal reforms that claimed to liberate Egyptians from the inhumanity of pre-colonial rule and elevate them to the status of human beings. These legal reforms intersected with a new historical consciousness that distinguished freedom from force and the human from the pre-human, endowing modern law with the power to accomplish but never truly secure this transition.

Samera Esmeir offers a historical and theoretical account of the colonizing operations of modern law in Egypt. Investigating the law, both on the books and in practice, she underscores the centrality of the “human” to Egyptian legal and colonial history and argues that the production of “juridical humanity” was a constitutive force of colonial rule and subjugation. This original contribution queries long-held assumptions about the entanglement of law, humanity, violence, and nature, and thereby develops a new reading of the history of colonialism.

Posted on by Mark Movsesian

Liveblogging the Religion and Civil Society Conference: Afternoon Panel [UPDATE]

This afternoon’s first panel was “Religious Freedom in the Contemporary Juridical Context,” chaired by Francisca Pérez Madrid of the University of Barcelona. (UPDATE: That’s a picture of the panel, left, with conference organizer Mary Ann Glendon). I opened the panel with a comparative paper on recent cases in the American Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Although both courts emphasize the need for state “neutrality,” they define neutrality differently, and I argue that the differences reflect underlying institutional and cultural factors. Hans-Martien ten Napel (Leiden University) followed with a paper on theoretical justifications for religious freedom, including church autonomy. He argued that Christian social pluralist thought, both Catholic and Protestant, can provide an institution-sensitive account of religious freedom that avoids some of the pitfalls of conventional individualistic accounts. Iain Benson (Miller Thompson LLP, Canada) spoke next. In a satiric paper, he explored rhetorical devices used by opponents of church autonomy, for example, referring to “public” as distinct from “religious” and treating “secular” as a neutral, ahistorical concept. Pasquale Annicchino (European University Institute) followed with a paper on the need for a religious freedom office within the new European External Action Service, an EU diplomatic corps established by the Treaty of Lisbon. This new service, he argued, which would advocate for religious freedom outside Europe, could be modeled on the US Commission on International Religious Freedom. Pérez Madrid closed the panel with a paper on a recent General Comment by the UN’s Committee on Economic, Social and Cultural Rights on article 15 of the International Covenant on Economic, Social and Cultural Rights, which requires states to promote citizens’ participation in cultural life.  Issued in 2009, the General Comment notes that “culture” encompasses, among other things, religion and belief systems; although it must be reinforced in some ways, Pérez Madrid maintained, the General Comment’s approach to religion as a matter of culture was basically sound.

Posted on by roncolombo

NYC Health Dept. & Circumcision

Straight from the NY Daily News:

“The city Health Department on Wednesday “strongly” urged against an ultra-Orthodox Jewish circumcision ritual that uses oral-genital suction to remove the blood.

In September, a Brooklyn infant died after the procedure because he contracted herpes from the rabbi, or mohel , who performed it.

“There is no safe way to perform oral suction on any open wound in a newborn,” city Health Commissioner Thomas Farley said in a statement.

The ritual leaves infants at risk of contracting herpes simplex virus type 1.”

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