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.
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.
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