Strasser on Hosanna-Tabor, the Ministerial Exception, and the Constitution

Mark Strasser (Capital University Law School) has posted Making the Anomalous Even More Anomalous: On Hosanna-Tabor, the Ministerial Exception, and the Constitution. The abstract follows.

In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the lower courts and to greater inconsistency in the judgments issued when religious employees have allegedly been subjected to prohibited discriminatory practices. Further, by mischaracterizing the past jurisprudence, the Hosanna-Tabor Court has muddled what was previously fairly clear, and thus will not only have put a wide range of religious employees at risk but will have made the Religion Clauses jurisprudence more generally even less understandable.

Schonbeck & Andersen, “All Religions Merge in Tranquebar”

This month, the University of Hawaii Press published All Religions Merge in Tranquebar: Religious Coexistence and Social Cohesion in South India by Oluf Schonbeck and Peter B. Andersen (both of the University of Copenhagen). The publisher’s description follows.

With globalization helping those who assert incompatible differences between their respective faiths, clashes of faith are increasingly common in different parts of the world. As a result, the study of religious conflict is also increasing.

This book reverses that perspective by addressing a case of peaceful religious coexistence and social cohesion, namely in the South Indian village of Tranquebar (Tharangambadi) in Tamil Nadu. The birthplace of the Lutheran mission to India in 1706, this former Danish colonial settlement is now a famous heritage site.

Although badly hit by the 2004 tsunami and today numerically dominated by members of a Hindu fishermen’s caste, so far the town has managed to steer clear of the kind of religious conflicts too often found in a number of states in present-day India, including Tamil Nadu. This in-depth study, based on post-tsunami field studies in 2006 and 2007, examines the ways in which Hindus, Muslims and different Christian denominations interact in their day-to-day lives. Further, it demonstrates that the role played by religion – as far as social cohesion is concerned – is invariably tied up with several other factors (social stratification, economic development, educational institutions and such social communities as caste councils, etc.) and may serve as a basis for unity as well as division.

Cheating As a Human Right

I’ve written before about how international human rights law increasingly reflects the norms of the so-called WEIRD countries – that’s Western, Educated, Industrialized, Rich and Democratic – and assumes that those norms must be honored across the globe. This assumption is going to lead to problems. Whether or not WEIRD values are good ones – and there are some very good WEIRD values, such as religious freedom – they are not universal, and the attempt to impose them wholesale, without taking into account local cultures and histories, will only backfire. Most of the world is not WEIRD, after all, and people naturally resent outsiders telling them they must remake their societies to conform to norms they find alien.

A good example of what I’m talking about is this month’s Joint Statement by the United Nations Working Group on Discrimination against Women in Law and Practice. The statement calls on nations to decriminalize adultery. Now, there is a valid point here. In some countries, criminal laws against adultery are unfairly enforced: women are punished much more harshly than men. The Working Group could have done some good by providing details about this sort of discrimination and calling on nations to administer justice equally.

In fact, though, the Working Group goes much further. Under international law, it claims, nations may not make adultery a crime at all. “Almost two decades ago,” it informs readers, “international human rights jurisprudence established that criminalization of sexual relations between consenting adults is a violation of their right to privacy and infringement of article 17 of the International Covenant on Civil and Political Rights,” or ICCPR. The reference to Read more

Walter Russell Mead on Storms

Everything’s fine with us at CLR headquarters. Thanks so much to those who emailed to ask. Unfortunately, the same can’t be said for many people here in New York City, for whom last night’s storm was truly devastating. In fact, much of the region is a disaster zone at the moment. Everyone is a bit stunned.

This doesn’t relate to law, exactly, and I hope readers won’t find it too indulgent, but I wanted to pass on a lovely and profound reflection on last night’s events by the always valuable Walter Russell Mead. I can’t do the essay justice in a summary. Please do read it.

Izunwa & Ifemeje on Right to Life, Abortion and the Principle of Double-Effect

Maurice Okechukwu Izunwa and Sylvia Ifemeje (both from Nnamdi Azikiwe U., Awka) has posted Right to Life and Abortion Debate in Nigeria: A Case for the Legislation of the Principle of Double-Effect. The abstract follows.

The controversy as to whether abortion on demand will be legalized in Nigeria has been long and protracted. This is not unconnected with the fact that the issues that border on life are always sensitive for society and all the more for the legislature and the Courts. Notwithstanding the comparatively conservative status of law on abortion in Nigeria, arguments from differential fields of knowledge relating to the amendment of the law as it is, are far reaching. A great many insist that all forms of willful abortion should be criminalized. In this school of thought, we find the Catholic Church at the baseline. Nevertheless, the leftist pro-choice school defends the opinion that it is only fair and just that a woman should be left to decide in such a grave matter about her life and health. This essay makes an ethical detour in differential arguments as a necessary prerequisite for the much needed legal mediation of the rival camps. It proposes the legislation of the “principle of double effect” as the legal middle course.

Jacques Barzun on Art, the State, and Religion

The eminent cultural critic Jacques Barzun passed away last week.  Here are two smart posts over at First Things about his writing: the first by Gerald Russello and the second by Rusty Reno about a book of Barzun’s on education that I didn’t know about.

And here is an elegant essay of Barzun’s on the nature of the state’s role in the promotion, and production, of art, written in the 1960s when these issues came to prominence in the aftermath of the Kennedy presidency and early in the Johnson Administration.  Spending, Barzun observed, also means direction, “for support cannot help being selective and guided by rules.”  After listing a handful of arguments in support of the association, Barzun considers the points against.  First, he wonders what the “central object of ‘aiding the arts’ is,” and which groups are to benefit, and in which ways.  But the larger problem, Barzun thinks, is the fundamental incompatibility of the state’s aims — most especially including the democratic state’s aims — and those of the artist:

Recognizing the confusions of fact and inadequacies of thought about the arts is a prerequisite to framing a government policy in their behalf. This would be true on general principles; it is true for us in particular because such a policy cannot be one that simply gives the people the food or medicine they need. It is not even like the support of scientific research at large. It resembles rather the chancy empirical policies devised to sustain national prosperity.  Culture is a whole like the economy. And the analogy extends to the multitude of interests at work and their irreconcilable conflicts.  John Sloan the painter favored government support of the arts because, he said, the true artist would then know who his enemy was.  Others foresee interference with taste and style because it is impossible to disburse money without implying standards and holding out rewards for conformity with them. Government aid cannot help generating a bureaucracy of critics and accountants, seekers and prize-winners. To say that the judges and dispensers of favors will be drawn “from the arts themselves” is no reassurance. Cliques and clans and dictatorships will arise. It is no use instancing the panels of scientific referees that now pass on projects for government sponsorship, and proving that they have on the whole been fair. Science can use more impersonal criteria for judgment and, fads apart, the effort of science has a common goal and no doctrinal implications.

The arts and the humanities on the contrary are always in the thick of the battle of ideas. They stir up the passions and are meant to. A piece of work need not have a Communist for its author in order to be subversive – and subversive in a way which a politician or his delegate in office will instinctively feel and properly resent.  For he is after all the custodian of the people’s money and welfare, and he has sworn to uphold the regime of which he is a part. Now the arts in the west have for over a hundred years been anti-social and irreligious; they have incited to immorality, revolution, and nihilism; they seethe with hatred of the bourgeoisie, business, normal appetites, and machine civilization. They war against everything that under the name of education the government already pays for: settled habits, decent thoughts, respect for the family, obedience to the law, and adherence to grammar, syntax, and democratic ideals.

It’s an interesting reflection, followed toward the end of the essay by some thoughtful policy proposals.  But it seems to me that the “irreligion” of art that Barzun mentions proceeds from a more European idea (an “Establishment art, into the bosom of which the ambitious seek to climb; for once inside, everything is assured,” as he says later) than an American concept of the nature and function of religion in its relationship to the state.  In America, perhaps it might be that at least some of what is contained in the paragraphs above, and in this essay generally, might be perceived by some to apply equally to religion and art.

Good and Bad at the UN

Last Thursday, I attended a meeting of the UN General Assembly’s Social, Humanitarian & Cultural Committee – the so-called “Third Committee” – for presentation of the annual report of the Special Rapporteur on Freedom of Religion or Belief, Professor Heiner Beilefeldt. (Earlier in the day, CLR had co-hosted a briefing with Beilefeldt). It was an interesting experience.

Professor Beilefeldt is a serious, energetic, and well-motivated scholar, and his report, which focuses on protecting the right of conversion in international human rights law, is worth reading. In some respects, the Committee meeting was worthwhile, too. The Third Committee is a huge body, with delegates from all UN member states; it meets in an oversized room that feels like a repurposed Costco. There is a platform at the front, where the Chair and Special Rapporteur sit, and rows and rows of tables with delegates and staff. The Special Rapporteur presents a summary of his report, and delegates are then allowed to respond and ask questions, which they do in the studied, affectless monotone of diplomatic conferences.

About a dozen state delegations responded to Professor Beilefeldt’s report. Some interventions were revealing. For example, Germany and the Netherlands stressed the need for protecting atheism as a belief. The Canadian and Chinese delegates got into a dustup over whether Falun Gong is a religion or a cult; the Read more

The Tragedy of Religious Freedom — HUP page is up

Just wanted to alert CLR Forum readers that HUP’s page for my book is now up (I’m sure you were all waiting with bated breath).  The process of negotiation over both title and cover art was a very pleasant one, and interesting to go through for the first time from my perspective.  Not that readers can get the book yet, even if they so desired.  But you can be sure that I will prime the pump at each stage of the production!!  In fact, I’m afraid you will all have to suffer through some rank self-promotion over the next few months, so my apologies in advance.

Levy-Rubin on Dhimmi Restrictions

Here’s an interesting post about an essay, written by Hebrew University Professor Milka Levy-Rubin, in a recent book from the University of Pennsylvania Press, Beyond Religious Borders: Interaction and Intellectual Exchange in the Medieval Islamic World (2011). Levy-Rubin’s essay, “Shurut Umar: From Early Harbingers to Systematic Enforcement,” discusses the development of classical Islamic law restrictions on “protected” peoples, or dhimmis, including Christians and Jews. She asserts that these restrictions, which date from the notional seventh-century “Pact of Umar,” were more or less uniform throughout the Muslim world, not idiosyncratic or haphazard, although enforcement of the restrictions may have varied. The rules included prohibitions on crosses, churches, processions, and certain kinds of dress, as well as payment of the jizya, or poll tax. The essay looks worthwhile for anyone interested in the history of fiqh restrictions on religious minorities.

CLR Co-Hosts Briefing With UN’s Special Rapporteur on Freedom of Religion or Belief

In New York yesterday, CLR co-hosted a lunch briefing with Professor Heiner Beielefeldt (left), the UN’s Special Rapporteur on Freedom of Religion or Belief. Beielefeldt was in New York to present his annual report, “Elimination of All Forms of Religious Intolerance,” to the UN’s General Assembly. (I attended the General Assembly meeting as well; I’ll write more about that in a subsequent post).

Beilefeldt’s report focuses on the right of conversion as an essential component of the freedom of religion or belief. Although international human rights law grants a right to change one’s religion, the right has proved controversial in practice, especially, though not exclusively, in Muslim-majority countries, which often criminalize apostasy from Islam. In his briefing, Beilefeldt explained that his report identifies four versions of the right of conversion, all of which merit protection:  (1) the right to change one’s religion; (2) the right not to Read more