Posted on by Mark Movsesian · 3 Comments

The Catholic Vote and the Contraception Mandate

Here’s an interesting piece of data from Tuesday’s exit polls: President Obama won the Catholic vote. The margin was narrow — 50%-48%, which more or less mirrors the President’s popular-vote victory — but, still, he won. Now, you might say, this isn’t surprising. Catholics have traditionally leaned Democratic, and President Obama’s campaign stressed social justice concerns that resonate with Catholic teaching. One should remember, though, that the Obama Administration imposed the contraception mandate, and that Catholic bishops made the mandate a salient issue. Requiring Catholic institutions to provide contraceptives and abortifacients to employees, the bishops said, seriously threatens Catholics’ religious freedom. Apparently, the majority of Catholic voters disagreed. Or thought that the threat to religious freedom, if it existed, was not as important as other issues, like increasing taxes on wealthy Americans and leaving entitlement programs untouched. Perhaps Latino Catholics voted “ethnicity” rather than “religion.” Who knows? The point is, the majority of Catholic voters apparently did not accept the bishops’ understanding of the importance of the issue.

Leaving aside whether voters who disregard their bishops’ views on the contraception mandate are erring as Catholics – a question on which I’m not qualified to state an opinion — I wonder what implications this vote has for the future of the mandate. Legally, the lawsuits under RFRA will go forward, and I think they have a fair shot at success. But the atmosphere may have changed. It won’t show up expressly in judicial opinions, of course, but I wonder whether judges who support the mandate won’t feel more emboldened to find that the mandate doesn’t “substantially burden” Catholic institutions.  And I wonder whether the Obama Administration won’t feel more comfortable taking a hard line on whatever “accommodation” they are preparing for the final regulations, due before August 2013. The courts may or may not follow the election returns, but politicians surely do.

Posted on by Marc O. DeGirolami

The Politics and the Law of Accommodation

Now that the President will be with us for another 4 years, I got to thinking about the politics of the promised accommodation relating to the HHS Mandate.  Recall that HHS has indicated that some form of accommodation or modification to the existing regulation for objecting Catholic institutions would be forthcoming after the election.  Some courts have relied on the prospect of that accommodation to dismiss law suits, without prejudice, as being unripe.

Of course no one yet knows what the nature of the accommodation will be.  So all of this is pure speculation, and may well turn out to be incorrect.  But I expect the accommodation to be narrow.  The reasons are simple from a political point of view.  First, in his second term, the President does not need to placate the Church or Catholics who do not agree with him about this issue for political reasons.  The House may stand in his way as to certain policy objectives, but this is not one of them.  He will not run for President again.  Second, the President can quite rightly point to the fact that he won the Catholic vote in this election.  A majority of Catholics that voted did not feel that the issues of religious liberty raised by the Mandate were important enough to vote against the President (and that’s putting it generously — some or many may not have cared at all about these issues; some may not even have known about them).  And the President can and probably will use that triumph as a political signal that he can proceed more or less as he likes with his policy.  Catholics may or may not care about the Mandate, but a majority of them don’t care that much — for those that voted, it is not a central concern for them.

This raises some interesting questions about the relationship of these political indicators to the Religious Freedom Restoration Act legal test: laws which substantially burden religious belief or practice and which are not supported by a compelling interest whose means of achievement is the least restrictive are illegal.  One key feature of the test is that courts are not to inquire into the centrality or importance of the belief or practice within the overall religious system.

One of the reasons for RFRA was precisely to short-circuit the sorts of new political arguments that the Administration might make on behalf of the Mandate.  For example, suppose the Administration adds to its arsenal of legal arguments in favor of the Mandate something like the following: ‘Most Catholics don’t care much at all about this issue, for if they did, they would have voted against the President.  But they voted for the President.  The burden on them therefore must not be substantial at all.’  It seems to me that this is an argument from centrality.  And it strikes me as problematic.

In the first place, it remains difficult to assess precisely how important or central the burden is for the Catholics that voted for the President notwithstanding the Mandate.  They may have voted for him with reservations of various kinds, and we would need to know how to measure the weight of those reservations to determine whether that weight rises to the level of substantiality.  But of course we cannot do that.  In the second place, RFRA’s very injunction not to consider centrality speaks to an incongruity between the political and legal realms when it comes to accommodations on grounds of religious conscience.  Part of the point of RFRA had to do with a concern about the majoritarianism suggested by Employment Division v. Smith — and specifically about the question of how to gauge whether an accommodation was warranted.  This explains Congress’s concerns about inquiries into the centrality of a belief.  And this is why arguments from current political realities are an uncomfortable fit when it comes to the law of accommodation.

Be that as it may, as I have indicated before, I am perplexed by the substantial burden test.  There are only a few ways I can think of that are available for courts to assess the gravity of a burden.  And evaluating the centrality or importance of a belief seems like a natural — indeed, perhaps an inevitable — criterion.

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Pei on Burqa Bans and the European Court of Human Rights

Sally Pei (Yale University Law School) has posted Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights. The abstract follows.

Over the past decade, Europe has been the site of strident debates over integration and Islam. One major pole of controversy is the trend toward enacting legislation to prohibit Islamic veils from public places. Laws banning face coverings, already in force in France and Belgium, are under consideration in a number of European countries, including the Netherlands, Italy, and Switzerland. The laws raise fundamental questions about what it means to be French, Belgian, Dutch, or indeed European. But the bans are of special interest for another reason: They provide a likely testing ground for the nascent nondiscrimination jurisprudence of the European Court of Human Rights (“the Court”), and a potential opportunity to bolster legal safeguards against discrimination at the regional level.

The laws might seem to invite an obvious challenge on the grounds that they deny the right to religious freedom guaranteed by Article 9 of the European Convention. But previous cases addressing restrictions on religious dress have sharply narrowed that avenue for redress. This Comment argues, however, that Article 14 nondiscrimination claims can fill that void. The Court’s Article 14 jurisprudence has long been criticized for its limited scope and application, but a recent line of cases in the education context evinces the emergence of a new doctrinal approach to discrimination. Properly applied and reinforced, that case law could mature into a general analytical framework for addressing the claims likely to arise from anti-burqa legislation and other discriminatory measures.

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Bano, “Muslim Women and Shari’ah Councils”

This month, Palgrave Macmillan will publish Muslim Women and Shari’ah Councils: Transcending the Boundaries of Community and Law by Samia Bano (University of Reading Law School, U.K.). The publisher’s description follows.

Drawing upon original empirical data and critiquing existing research material this book challenges the language of community rights and claims for legal autonomy in matters of family law. It draws upon critiques of power, dialogue and positionality to explore how multiples spaces in law and community both empower and restrict women at different times and in different contexts. It also opens up the conceptual space in which we can see in evidence the multiple legal and social realities in operation, within the larger context of state law, liberal multiculturalism and the human rights discourse. In this way the book provides an important contribution to current debate on the use of privatized and ADR mechanisms in family law matters while analyzing the dynamics of relationality and cultural diversity in new forms of mediation practices. In a wider context it explores the conceptual challenges that the rise of a faith-based dispute resolution process poses to secular/liberal notions of law, human rights and gender equality.

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Bridge on State Enactment of Religious Freedom Restoration Act Laws

Last week, Oxford Journal of Church and State posted for advanced access Religious Freedom or Libertarianism: What Explains State Enactments of Religious Freedom Restoration Act Laws? by Dave Bridge (Baylor University).  An extract of the piece follows.

In 2002, officer Rex Shrum submitted his letter of resignation to the Coweta, Oklahoma, police department. Also a Church of Christ minister, Shrum quit the force after twelve years when his superiors would no longer accommodate his need to have Sunday mornings off. Invoking the Oklahoma Religious Freedom Act, Shrum sued, claiming that the city officials had denied him his right to free exercise. The jury sided with the minister, awarding Shrum a total of $235, 000 for religious freedom claims. Even though the Supreme Court had already struck down the federal Religious Freedom Restoration Act (RFRA) in City of Boerne, Texas v. Flores, Shrum had brought suit under Oklahoma’s state-level Religious Freedom Act. This essay looks at state-level RFRAs and assesses their determinants. What factors are associated with states that pass RFRAs? More importantly, what do these factors tell us about (1) broader trends in American politics and (2) the RFRAs themselves?

State RFRAs are significant because they occupy a unique place in American public policy and ideology. At the policy level, they provide concrete laws for the execution of the loftier ideal of free exercise. RFRAs give citizens a clear foundation for making free exercise violation claims against the state. Even though the US Constitution and state constitutions may have language promoting free exercise, state RFRAs provide a strong indicator that their respective states will take steps to ensure religious freedom. Practically, they provide easier access to the courts for free exercise claimants and lay out a stricter standard for state action. The impact of Oklahoma’s law, for example, can be seen above, as Shrum used the Oklahoma RFRA to pursue his case.

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Krishna-Hensel (ed.), “Religion, Education and Governance in the Middle East”

This month, Ashgate Publishing will publish Religion, Education and Governance in the Middle East: Between Tradition and Modernity edited by Sai Felicia Krishna-Hensel (Auburn University at Montgomery).  The publisher’s description follows.

The Middle East is a key geopolitical strategic region in the international system but its distinctive cultural and political divisions present a mosaic of states that do not lend themselves to simplistic interpretations. A thoughtful analysis of the Middle East requires an understanding of the synergism between tradition and modernity in the region as it adapts to a globalizing world. Religious education and activism continue to remain a significant factor in the modernization process and the development of modern governance in the states of the Middle East.

This interdisciplinary book explores the historical and contemporary role of religious tradition and education on political elites and governing agencies in several major states as well as generally in the region. The relationship between democracy and authority is examined to provide a better understanding of the complexity underlying the emergence of new power configurations. As the region continues to respond to the forces of change in the international system it remains an important and intriguing area for analysts.

Posted on by Mark Movsesian

Haupt on Comparative Law and Religion

I’m convinced that law and religion scholarship will increasingly be comparative. It’s easier than ever before to engage legal materials from other countries, and doing so often provides useful insights about one’s own legal culture. Columbia’s Claudia Haupt, who also writes in law and religion, agrees, but says that we need to think systematically about what qualitative, comparative scholarship in law and religion should look like. She has an interesting post  over at the I•CON blog, which mentions an upcoming meeting of comparativists at Columbia that will tackle the issue. Take a look.

Posted on by Mark Movsesian · 1 Comment

Holy Sepulcher May Close Over Unpaid Water Bill

I’ve posted before about legal issues surrounding the Church of the Holy Sepulcher in Jerusalem, which most Christians hold to be the site of Jesus’ crucifixion, burial, and resurrection. The building  is shared among several Christian communions, all of whom accept, more or less, the so-called “Status Quo,” a compilation of rules and customs dating to Ottoman times that governs possession and use of the church. I hadn’t seen this anywhere in the scholarship, but it seems that the Status Quo may also cover payment of the church’s water bill.  According to the Greek Orthodox Patriarchate of Jerusalem, which has the greatest share of rights in the church and, apparently, responsibility for utilities, the Status Quo exempts the church from water bills. According to Hagihon, the Israeli utility that supplies the church with water, the Patriarchate is incorrect. Hagihon says Israeli law does not exempt religious organizations from water bills and that the church owes roughly $2 million. Last week, Hagihon obtained a court order freezing the Patriarchate’s bank account until payment is made. The Patriarchate says that, with its bank account frozen, it cannot fund day to day operations and that it will have to close the church.  Cooler heads undoubtedly will prevail, but for the moment there’s an impasse. I don’t know whether any of the other communions have offered to chip in, but the Greek Patriarchate may not want them to do so. Under the Status Quo, paying to maintain any part of the property can be an assertion of the right of possession — and the Patriarchate surely does not want to create a precedent suggesting that other communions have greater rights in the church.

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Beaman on Is Religious Freedom Impossible in Canada?

Lori G. Beaman (U. of Ottawa) has posted Is Religious Freedom Impossible in Canada? The abstract follows.

The idea of religious freedom is not new in Canadian law or wider public discourse, although it has taken on a life of its own in the post-Charter era (1982 onward) and certainly in the last several years. As the courts wade more fully into the swirling abyss that is religion they find themselves struggling with the issues that preoccupy scholars of religion (and for which they have found no conclusive answer): what is “religion” and how can it be defined in a manner that is inclusive and meaningful? This article takes as its point of departure the provocative and compelling argument made by Winnifred Sullivan in her book, The Impossibility of Religious Freedom (2005), that religious freedom as a legal promise is untenable. In this article I argue that while plausible and convincing in the context of the United States, Sullivan’s thesis may be less applicable in Canada for three key reasons. First, the embeddedness of Roman Catholicism in Canadian social structure has resulted in a textured and nuanced understanding of religion, or, at the very least, a recognition that religion is in some measure a multifaceted notion. Secondly, the recognition of group rights, however defined, means that there is a space created for alternative religious discourses, in part because of the constitutional recognition of multiculturalism. Thirdly, the recent turn by the Supreme Court of Canada to an understanding of the subjectivity of religious freedom strengthens the idea that religion must be conceptualized in relation to the ways in which individuals understand and practice it in their day to day lives.

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Stopler on Religious Establishment, Pluralism and Equality in Israel

Gila Stopler (NYU School of Law) has posted Religious Establishment, Pluralism and Equality in Israel—Can the Circle be Squared? The abstract follows.

Israel’s constitutional structure purports to combine strong establishment of the Orthodox Jewish religion in the state with respect for liberal values such as pluralism equality and liberty. Whereas the establishment of the Orthodox Jewish religion is achieved through laws regulations and administrative power, liberal values that are only partially enshrined in law, are mostly defended and articulated by the Israeli Supreme Court. Focusing on the internal conflicts within the Jewish majority the article will show how the power granted to the Orthodox Jewish religion by the state has been used to circumvent liberal values and will examine the role of the Israeli Supreme Court in ameliorating this problem. It will argue that although in countries in which religion and the state are separated a ‘hands-off’ approach to pluralism may be sufficient to protect liberal values, in a country such as Israel with a strong religious establishment a more activist approach, which will be termed ‘egalitarian pluralism’ is required. The article will argue that an egalitarian pluralist approach is needed in order to maintain Israel’s dual commitment to its nature as a ‘Jewish and Democratic’ state and will assess and critique the partial implementation of this approach by the Israeli Supreme Court.