The Second Circuit’s Establishment Clause Jurisprudence of Desire

The Second Circuit has upheld the decision of a public school to forbid a student from closing a middle school speech with the following: “As we say our goodbyes and leave middle school behind, I say to you, may the Lord bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.”  The student sued on free speech grounds, and the court concluded that though the restriction was content-based, because the standard in public schools is deferential to the school (“reasonably related to legitimate pedagogical concerns”), and notwithstanding the school’s need to come up with an “overriding” state interest, the school had done so here.

What was that “overriding” state interest “reasonably related to legitimate pedagogical concerns”?  It was the school’s “desire to avoid violating the Establishment Clause.”  But this was a student’s own decision, uninfluenced by the school (indeed, opposed by the school).  That did not matter.  So long as the government “desires” to avoid an Establishment Clause violation — whether the “desire” corresponds with what the Establishment Clause actually proscribes or not — that is sufficient to overcome what might otherwise be an actual violation of a constitutional right (irrespective, I take it, of anybody’s desires).  But desires are tricky.  People desire all sorts of things; sometimes those desires are constitutional, sometimes not, but I can’t think of another context in which a constitutional dispute really depends so heavily on the desires of one of the parties, whether or not those desires correspond to actual realities.  But why not be more forthright?  This decision has nothing to do with the Establishment Clause.  It has to do with the school’s desire not to permit the religious language of the student’s speech.  So why is it necessary to bloat the Establishment Clause this way?  But the endorsement test put us on the path of Establishment Clause “desires” and “appearances” long ago.

Conference, “Religious Freedom, Legal Pluralism and Democratic Constitutionalism”

Our friend Claudia Haupt (Columbia) reaches out with news of an interesting looking conference organized by political scientist Jean Cohen: “Religious Freedom, Legal Pluralism and Democratic Constitutionalism” at Columbia University on February 22-23.  Details follow.

Please save the date for:

Religious Freedom, Legal Pluralism and Democratic Constitutionalism
Organized by Political Science Professor Jean L. Cohen, Columbia University

Room 707, International Affairs Building

Friday, February 22, 2013

10:00am–12:00pm: Panel on Constitutionalism and Legal Pluralism

Paper by Dieter Grimm (Humboldt University) with comments by Andrew Arato (The New School)

2:00–4:00pm: Panel on Religious Legal Pluralism and Family Law

Paper by Linda McClain (Boston University) with comments by Mirjam Kunkler (Princeton University) and Karen Barkey (Columbia University)

Saturday, February 23, 2013

Room 707, International Affairs Building

10:00am–12:00pm: Panel on Republicanism and Freedom of Religion

Paper by Michel Troper (Paris X) with comments by Claudia Haupt (Columbia Law) and Stathis Gourgouris (Columbia University)

2:00–4:00pm: Panel on Freedom of Religion and Religious Establishment

Paper by Larry Sager (University of Texas, Austin) with comments by Nancy Rosenblum (Harvard University)

Around the Web This Week

Here are some interesting law & religion stories from around the web this week:

Zawati on Just War, Peace and Human Rights Under Islamic and International Law

Hilmi M. Zawati (McGill University) has posted Just War, Peace and Human Rights Under Islamic and International Law. The abstract follows.

The present thesis attempts a critical examination of the theory of war under Islamic and public international law, in an effort to demonstrate that jihad is a just, defensive, and exceptional form of warfare, geared to the maintenance of peace, and the protection of human rights for all people, whether those rights be exercised alone or in association with others, without distinction as to race, sex, language or religious belief. Through an examination of the norms of Islamic and public international law on armed conflict, this thesis argues that Islamic law, which governs the doctrine of jihad, is realistic and practical. Further, it made a great contribution to international humanitarian law more than a millennium before the codification of the four Geneva Conventions of 1949, and eight centuries before the appearance of Hugo Grotius treatise De jure belli ac pacis libri tres in 1625.

Furthermore, this comparative study reveals that the word jihad might be one of the most misunderstood terms in the history of Islamic legal discourse. This analysis also claims that the division of the world into dar al-Islam (territory of Islam) and dar al-harb (territory of war), which is not predicated on a state of mutual hostility, was dictated by particular events, and was not imposed by scripture. Moreover, this discussion provides that Islamic humanitarian law regulates conduct during a jihad on the basis of certain humane principles, compatible with those upon which modern international conventions are based. Finally, this thesis concludes that there is a unique relationship between jihad and the notion of just war, a matter which qualifies it as the bellum justum of Islam.

Sezgin on the Role of Alternative Legalities

Yuksel Sezgin (CUNY John Jay) has posted The Role of Alternative Legalities in Bringing About Socio-Legal Change in Religious Systems. The abstract follows.

Do women have equal rights under Islamic, Jewish or Hindu laws? As far as the actual practice is concerned, the answer is not an affirmative one, as most religious traditions have historically discriminated against women particularly in familial relations. Moreover, in most religious traditions human agency is usually prohibited from interfering with ‘divine’ law that is assumed to represent the ‘God’s’ will and commands. Then, how can gender equality or uplifting of women be achieved under religio-legal systems? If ‘sacred’ laws cannot be amended, does it mean that religio-legal systems are constantly stagnated or frozen in time? Are women eternally doomed to suffer under patriarchal and discriminatory religious laws? The answer is simply ‘no’. For instance, Sisters in Islam, a Muslim feminist organization in Malaysia holds the view that it is not Qur’an or Islam that oppresses women but it is the male-centric and repressive legality built around the originally emancipatory message and word of God that came to discriminate against women. In this regard, they argue that what needs to be changed to improve the status of women is not the law or the text itself but the legality built around it. In fact, all over the world women are contesting legality of customary and religious laws and rendering a more egalitarian and emancipatory understanding of the texts and traditions without necessarily contesting their legitimacy, source or originality.