Helfand’s Testimony: Implied Consent Institutionalism

Our friend and former guest Michael Helfand (Pepperdine) will be appearing with me at the US Commission on Civil Rights briefing next week, and he passes along his testimony.  Michael’s approach to the religious institution question, as developed not only here but also in some of his other excellent work, depends to an extent on a very interesting (and, I think, provocative) concept of implied consent derived from the individual and granted to the institution.  He locates some of the constitutional root of this idea in Watson v. Jones (1872).

Pussy Riot Goes to Strasbourg

Year by year, it becomes clearer that Russia will be an important participant in global conversations about law and religion. This is true with respect to religious law—the canons of the Russian Orthodox Church (ROC)—and also with respect to church- state and religious freedom issues.

For European scholars, it will be crucial to understand how the vocal and active presence of the ROC in the courts will influence the case-law of the European Court of Human Rights (ECtHR). I have already shown that the ROC was a key player in the Lautsi case on the display of the crucifix in Italian public schools. After the first decision in Lautsi, Metropolitan Hilarion of Volokolamsk, chairman of the ROC’s Department of External Church Relations, clearly expressed his opinion–on the judgment, the Court, and the need for action by religious groups–in a letter to the Vatican Secretary of State, Cardinal Tarcisio Bertone:

“We consider this practice of the European Court of Human Rights to be an attempt to impose radical secularism everywhere despite the national experience of church-state relations. The above mentioned decision is not the only one in the practice of the Court, which has increasingly shown an anti-Christian trend. Taking into account the fact that the decisions of the European Court of Human Rights have clearly lost touch with legal and historical reality in which most of the Europeans live, while the Court itself has turned into an instrument of promoting an ultra-liberal ideology, we believe it very important that religious communities in Europe should be involved in a discussion concerning its work”.

For these reasons, it will be interesting to see how the ECtHR decides the recently-lodged case of the Pussy Riot punk band (above), some of whose members were arrested after performing a “punk prayer” in one of the most important Russian churches. Maria Alekhina, Yekaterina Samutsevich and Natalia Tolokonniva were in fact sentenced to two years in prison on the charge of “hooliganism motivated by religious hatred”. The complaint at the ECtHR, filed one month ago, alleges that the group’s conviction amounts to a violation Convention’s guarantees of  freedom of speech, the right to liberty and security, the prohibition of torture and the right to a fair trial.

If the cases moves forward, it promises to be an important one in many regards: both for the legal arguments and standards that the Court will apply to balance (or not) the different rights at stake, but also for the position religious groups, like the ROC, take in any third party interventions before the Court.

Jews on the Jury

A federal judge in New York this week denied a defense attorney’s request to exclude Jews from a jury that will hear the case of alleged terrorist Abdel Hameed Shehadeh, on trial for lying to the FBI about plans to kill Americans. Shehadeh’s lawyer, Frederick Cohn, told the judge that the jury was going to hear incendiary testimony about Jews and Zionism and that Jewish jurors could not be trusted to remain objective.

Many reports of this week’s ruling state that the law forbids excluding jurors on account of religion. Those statements are a bit misleading. The Supreme Court has held that the constitution forbids attorneys from striking jurors on account of race or sex, but has never ruled on whether attorneys may strike jurors on account of religion.

According to my colleague Larry Cunningham, an expert in criminal procedure, lower courts are split on that question. There’s learning for the proposition that attorneys may not strike jurors on the basis of religious affiliation itself, but may strike jurors on the basis of religious intensity. For example, in one federal trial in New Jersey, a prosecutor struck two jurors who were active in their churches on the ground that the jurors’ religious convictions would make it hard for them to vote to convict the defendant. An appellate court ruled that the exclusion was proper. As Robert Miller quipped at the time, “You may thus be struck from a jury not for being a Christian, a Jew, or a Muslim, but only for being a rather devout Christian, Jew, or Muslim.”

So, Shehadeh’s lawyer really should have been more subtle. Perhaps he will revise revise his request to cover only Jews who keep kosher.

Gordon on Church and State in the Early United States

Sarah Barringer Gordon (University of Pennsylvania Law School) has posted State v. Church: Limits on Church Power and Property from Disestablishment to the Civil War. The abstract follows.

Debates over the rights of religious organizations pit those who argue
for “church autonomy” from state interference against those who argue for
strict separation. In battles to exempt religious employers from providing
birth control to employees, to debates over parishioners right to secede from a central denomination and take their church property with them, defenders of religious institutions argue that individual interests or local congregations should not determine the outcome of disputes. They argue that the rights of religious institutions have long held a key place in American life. This article challenges that claim by investigating the legislative and judicial implementation of disestablishment in the states from the 1780s to 1860. Widespread legislative and constitutional limits on the capacity of religious organizations to acquire and hold property, coupled with the imposition of lay control of church affairs through the election of trustees, imposed strict limits on the scope of religious power to protect individual freedom of conscience. After disestablishment, state involvement in church affairs increased, in other words. In this environment of intense regulation and oversight, religious life flourished and lay involvement increased dramatically. Taking seriously the focus on individual freedom of belief as a key component of disestablishment, this article rebuts the argument that American history supports broad autonomy for religious institutions. Instead, it reveals a legacy of strict oversight combined with concern for individual liberty of belief.

Rahim, “Muslim Secular Democracy”

This month, Palgrave Macmillan will publish Muslim Secular Democracy: Voices from Within edited by Lily Zubaidah Rahim (University of Sydney). The publisher’s description follows.Muslim Secular Democracy

Muslim Secular Democracy: Voices From Within provides an expansive understanding of secularism in the Muslim World by exploring different trajectories and varieties of secularism, from the failed authoritarian secular state of Pahlavi Iran and the ambiguous secularism in Malaysia to democratizing passive secularism in Indonesia and shifts towards passive secularism under the AKP government in Turkey. Where the bulk of academic literature on democratization in the Muslim World focuses on the Arab World, this volume fills a gap by developing an integrated Muslim World perspective; together, the country case-studies provide multiple lenses through which to appreciate the socio-political shifts that have resulted in different democratic transitions, supported by varied discourses and propelled by diverse combinations of political, social, and religious actors. In the early twenty-first century, passive secularism increasingly aligns itself with mainstream Muslim aspirations for forms of wasatiyyah democracy and governance based on popular sovereignty and citizenship rights and for the incorporation of the sacred within the political framework of the inclusive secular state. The contributions to this volume examine the ways by which Muslim wasatiyyah democracy has been advanced by progressive Islamic Muslim discourses and movements grounded in the principles of equity and social justice.