Kwall on Jewish Tradition as Intellectual Property

Roberta Rosenthal Kwall (DePaul University College of Law) has posted Is the Jewish Tradition Intellectual Property?  The abstract follows.

Whether works of authorship should be protected from unauthorized changes and, if so, in what manner, are questions of endless fascination to intellectual property scholars. Jewish law is not typically considered a “work of authorship” although in many ways it can be so viewed. This article is concerned with exploring the Jewish tradition as intellectual or cultural property. It focuses on the human dimension of creativity embodied in the Jewish tradition, and how that dimension is manifested in the rabbinic interpretation of Jewish law. The resulting tradition — as it is embodied in both the Jewish texts and lived by the people — has afforded the Jewish people their unique identity throughout the ages. Simply put, the Jewish tradition is a very unique form of cultural property. This analytical framework has significant implications for how to negotiate the balance between preservation and development of the tradition.

Zimmerman, “Other Dreams of Freedom”

Next month, Oxford University Press will publish Other Dreams of Freedom:  Religion, Sex, and Human Trafficking by Yvonne C. Zimmerman (Methodist Theological School, Ohio).  The publisher’s description follows.

Human trafficking has captured worldwide attention as a crucial moral and political issue, but perhaps nowhere more than in the United States. Since they were signed into law in 2000, U.S. federal laws and policies on human trafficking have been understood as concrete expressions of the civic values of personal and political freedom. Yet these policies have also been characterized by a marked preoccupation with regulation, and especially sexual regulation.

Yvonne C. Zimmerman offers a groundbreaking exploration of the relationship between freedom and sexual regulation in American anti-human trafficking law and policies. . She argues that the religious values of American Protestantism have indelibly shaped the federal government’s approach to engaging human trafficking, and that the trajectory of the U.S.’s anti-trafficking efforts cannot be fully grasped without understanding the unique ways in which sex, morality, and freedom are connected in Protestant Christian configurations of morality. Zimmerman shows that particularly under the George W. Bush administration, the U.S.’s anti-trafficking project expressed a vision of freedom whose structure and logic is thoroughly Protestant. . Her analysis challenges the assumption that combating human trafficking necessarily entails sexual regulation, and reveals the extent to which the preoccupation with sexual regulation has functioned to discourage alternative understandings and practices of freedom, particularly for women.

Other Dreams of Freedom demonstrates that if opposition to human trafficking takes the promotion of freedom as the point of departure, then freedom must not be identified strictly with religiously and culturally Protestant understandings, but ought also permit other understandings of how freedom is constituted, practiced, and maintained.

Cumper & Lewis (eds.), “Religion, Rights and Secular Society”

This December, Edward Elgar Publishing will publish Religion, Rights and Secular Society: European Perspectives edited by Peter Cumper (University of Leicester, UK) and Tom Lewis (Nottingham Trent University, UK).   The publisher’s description follows.

This topical collection of chapters examines secular society and the legal protection of religion and belief across Europe, both in general and more nation-specific terms.

The expectations of many that religion in modern Europe would be swept away by the powerful current of secularization have not been realised, and today few topics generate more controversy than the complex relationship between religious and secular values. The ‘religious/secular’ relationship is examined in this book, which brings together scholars from different parts of Europe and beyond to provide insights into the methods by which religion and equivalent beliefs have been, and continue to be, protected in the legal systems and constitutions of European nations. The contributors’ chapters reveal that the oft-tumultuous legacy of Europe’s relationship with religion still resonates across a continent where legal, political and social contours have been powerfully shaped by faith and religious difference.

Covering recent controversies such as the Islamic headscarf, and the presence of the crucifix in school class-rooms, this book will appeal to academics and students in law, human rights and the social sciences, as well as law and policy makers and NGOs in the field of human rights.

Ignorance, Offensiveness, and the Constitution

The recent dispute involving the family whose petition to change its last name to ChristIsKing was denied is interesting on several levels.  As I noted here, it was claimed by the court that compelling a representative of the government to say, “ChristIsKing” (or other phrases like “JesusIsLord”) would violate the Constitution.  In the earlier post, I speculated about whether names like Theophilus or Christopher would likewise violate the Establishment Clause, and someone commented that the difference is that ChristIsKing is a creedal assertion while Theophilus or Christopher is not.  That seems also to be the distinction made by the judge, who was concerned about the “offensiveness” of proclamations by agents of the state with respect to some theological proposition.

Setting aside the issue of why creedal assertions should be more objectionable for Establishment Clause purposes than other sorts of religious assertions, I suspect that’s not what really explains the court’s decision.  First, Theophilus and Christopher are creedal assertions, at least of a kind: they depend on theological or Christian assumptions.  To name someone Theophilus is to assume that there is a God to be loved; and to name someone Christopher is to assume that there is a Christ to be carried.  Those are theological propositions.  Second, I am dubious that a municipal clerk or other government agent who was required to say the name ChristIsKing in any official capacity would be reasonably perceived as endorsing any creedal proposition.  Think about a court clerk who, say, is calling the name of a criminal case: “Next up on the docket is the United States of America v. Joseph ChristIsKing, docket #12-1593510A.”  It would be highly peculiar to believe that the clerk was stating a creedal proposition sponsored by the government.  Third, suppose the court clerk said this: “Next up on the docket is the United States of America v. Joseph Christus Rexmundi.”  I doubt that anybody would bat an eye.  And yet the creedal assertion in this last name is that Christ is king of the world.  So why the difference?

The difference has to do with common cultural ignorance or ordinary cultural associations.  One of the more curious things about the endorsement test as the Establishment Clause standard is that it depends on what a reasonable person would perceive.  The reasonable person is a famously problematic concept in the law, so it is no surprise that it has had such contested results in this area.   One of the special quirks that Establishment Clause cases have brought to the age-old problem of the reasonable person is that sometimes, the test for a reasonable person’s perceptions can look very much like the test for an ignorant person’s perceptions.  I remember a case from a couple of years ago out of the Third Circuit, Stratechuk v.  Board of Education, 587 F.3d 597 (3d Cir. 2009), which involved a misguided school policy prohibiting the singing of “celebratory” religious music at school-sponsored events.  The administration of the policy was baffling: the Martin Luther King Gospel Choir was prohibited from performing at the December concert, while the performance of Vivaldi’s Gloria in Excelsio (cum sancto spiritu) was permitted because the music “does not have a religious orientation and does not refer to a holiday.”

A parent’s claim that the exclusion of certain kinds of music violated the Establishment Clause was, in my view, properly rejected by the Court.  But with a small tweak of the facts, we can see the odd ways in which the endorsement test might cash out.  Suppose the district had banned the performance of all religious music at school throughout the year and no matter the context, because it wanted to avoid the appearance of endorsing religion.  And suppose it had permitted the Vivaldi piece, but excluded everything else, giving as its reason that “Gloria in Excelsio (cum sancto spiritu)” “does not have a religious orientation[.]”  This is of course untrue, but for purposes of the endorsement test, that hardly matters.  What matters is whether a reasonable person would perceive the endorsement, and because many people wouldn’t have perceived it in the piece by Vivaldi, it satisfies the test, while Frosty the Snowman (whose “religious orientation” is, to put it gently, attenuated) and the MLK Gospel Choir don’t.

Something similar is going on in the name change case.  Theophilus and Christopher are not endorsements — and therefore unconcerning to the court — because most people wouldn’t perceive them as endorsements, because most people either don’t know what they mean or don’t associate that knowledge with the name itself (any longer).  But they of course do carry highly theologically charged messages — messages which few people perceive.  If they did perceive those messages, perhaps they might be more offended (as I’ve said before, this whole area of the law is riddled with judicial arm-chair psychology about what offends people, but set that aside).  ChristIsKing carries a theological message which is much more commonly perceived, and whose putative offensiveness is therefore, presumably, much more commonly experienced.  And so the endorsement test seems to trade — at least in these cases — not so much on the divide between the religious and the non-religious, as on the divide between knowledge and ignorance.

Panel Tonight at St. John’s

Just a reminder that CLR is hosting a panel at St. John’s tonight, “Careers in Law and Religion.” Speakers include Elizabeth Cassidy (US Commission on International Religious Freedom), Peter James Johnson, Jr. (Leahey and Johnson), Maureen T. Liccione (Jaspan Schlesinger), Keith Sharfman (St. John’s), Amardeep Singh (Sikh Coalition), and Diana Verm (Becket Fund). Details are here.