Posted on by JCPW

Sezgin, “Human Rights Under State-Enforced Religious Family Laws”

9781107041400iThis September, Cambridge University Press will publish Human Rights Under State-Enforced Religious Family Laws in Israel, Egypt, and India by Yüksel Sezgin (Syracuse University). The publisher’s description follows.

About one-third of the world’s population currently lives under pluri-legal systems where governments hold individuals subject to the purview of ethno-religious rather than national norms in respect to family law. How does the state-enforcement of these religious family laws impact fundamental rights and liberties? What resistance strategies do people employ in order to overcome the disabilities and limitations these religious laws impose upon their rights? Based on archival research, court observations and interviews with individuals from three countries, Yüksel Sezgin shows that governments have often intervened in order to impress a particular image of subjectivity upon a society, while people have constantly challenged the interpretive monopoly of courts and state-sanctioned religious institutions, re-negotiated their rights and duties under the law, and changed the system from within. He also identifies key lessons and best practices for the integration of universal human rights principles into religious legal systems.

Posted on by JCPW

Dworkin, “Religion Without God”

9780674726826-lgThis August, Harvard University Press will publish Religion Without God by the late Ronald Dworkin. The publisher’s description follows.

In his last book, Ronald Dworkin addresses questions that men and women have asked through the ages: What is religion and what is God’s place in it? What is death and what is immortality? Based on the 2011 Einstein Lectures, Religion without God is inspired by remarks Einstein made that if religion consists of awe toward mysteries which “manifest themselves in the highest wisdom and the most radiant beauty, and which our dull faculties can comprehend only in the most primitive forms,” then, he, Einstein, was a religious person.

Dworkin joins Einstein’s sense of cosmic mystery and beauty to the claim that value is objective, independent of mind, and immanent in the world. He rejects the metaphysics of naturalism—that nothing is real except what can be studied by the natural sciences. Belief in God is one manifestation of this deeper worldview, but not the only one. The conviction that God underwrites value presupposes a prior commitment to the independent reality of that value—a commitment that is available to nonbelievers as well. So theists share a commitment with some atheists that is more fundamental than what divides them. Freedom of religion should flow not from a respect for belief in God but from the right to ethical independence.

Dworkin hoped that this short book would contribute to rational conversation and the softening of religious fear and hatred. Religion without God is the work of a humanist who recognized both the possibilities and limitations of humanity.

Posted on by Claudia E. Haupt

If It Looks Like A Duck…?

Thanks so much, Mark, for the warm welcome! I want to use my time here to write about some comparative issues in law & religion.

A growing body of literature in comparative constitutional law discusses themes of constitutional convergence. Do constitutional provisions converge across legal regimes? Do international human rights norms cause them to do so? These and related questions are enormously rich and thought-provoking, and the literature is expanding and getting increasingly sophisticated. But another question is perhaps as interesting as the question of textual convergence: interpretive convergence. Imagine two courts charged with interpreting a functionally similar, yet textually different constitutional provision using the same term as their analytical basis. Does that indicate convergence?

Here is the context in which I have addressed this question. The German Federal Constitutional Court and the U.S. Supreme Court both use the language of “neutrality” in their respective interpretations of constitutional provisions concerning religion-state relations. It’s interesting that we have two constitutional regimes, with constitutional provisions that say “Congress shall make no law respecting an establishment of religion” and “there shall be no state church” respectively—neither of which, incidentally, mentions the word “neutrality”—and two courts interpreting these provisions and finding an underlying requirement of state neutrality.

Two examples: the U.S. Supreme Court in McCreary County (quoting Epperson) has this to say about neutrality: “The touchstone of Establishment Clause jurisprudence is the requirement of governmental neutrality between religion and religion, and between religion and nonreligion.” In the Classroom Crucifix Case, the German Federal Constitutional Court found that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.”

From a comparative perspective, it might be tempting to assume that the courts say the same thing about the relationship between church and state, because they are both using the term neutrality.  But we have to look beneath the surface. The meaning of neutrality Read more

Posted on by Marc O. DeGirolami

Judge Henry Friendly on the Establishment Clause

Here’s an interesting selection from David Dorsen’s recent superb biography of renowned Second Circuit Judge Henry Friendly. The passage is about the Establishment Clause, with particular reference to the issue of “shared time” remedial education by public school teachers in religious schools and the Supreme Court’s decision Aguilar v. Felton. The passage is neat because it shows the fashion in which an intermediate appellate judge managed hierarchical constraint and substantive preference in crafting a decision. I’ll have some more on this general issue soon, but here’s Dorsen (at 162-63):

[I]n 1984, a time of doctrinal uncertainty and confusing precedents [ed.: when has this not been true?], Friendly wrote the Second Circuit’s opinion in Felton v. Secretary, Dept. of Education, where, when other programs had proven ineffectual, New York City sent public school teachers into nonpublic schools, including religious schools, to provide remedial instruction to educationally deprived children. State law prohibited public school teachers and their supervisors, who were entirely in charge of the program, from involving themselves in religious activities or content. In a suit by taxpayers Friendly said that while he accepted the good faith of the city and the value of the program, the program was unconstitutional: “[T]he Establishment Clause, as it has been interpreted by the Supreme Court, constitutes an insurmountable barrier to the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services of the sort at issue here.” His analysis of the Court’s cases

leads inescapably to the conclusion that public funds can be used to afford remedial instruction or related counseling services to students in religious elementary and secondary schools only if such instruction or services are afforded at a neutral site off the premises of the religious school….To be sufficiently certain that public employees, in a program like the present one, will maintain strict religious neutrality, they and the institutions in which they work must be subjected to ‘comprehensive, discriminating and continuing state surveillance.’ This itself is a constitutionally excessive entanglement of church and state.

Precedent did not require a search of the record to find entanglement; the mere possibility was sufficient to reject the program.

Dorsen goes on to note that Friendly’s separationist view of the Establishment Clause (“The Establishment Clause was the most notable constitutional-law area in which Friendly sided with the Supreme Court’s liberal wing”) coincided nicely with what was then the Supreme Court’s prevailing view, so that he could claim plausibly that he was “just following the Supreme Court.” “Nevertheless,” Dorsen writes,

Friendly structured the opinion in a manner that increased the likelihood that the Supreme Court would affirm him. He placed heavy reliance on Meek v. Pittenger, virtually the same as Felton, including on the problem of entanglement, which held unconstitutional a secular textbook program for private schools. He later explained that in writing the opinion as he did his object “was to make the [Supreme] Court face up to the fact that it could not sustain the New York program without overruling, in contrast to distinguishing, Meek v. Pittenger. I thought that this, as well as some of the other considerations developed in the opinion, might give a little pause to Blackmun and Powell about the erosion of the establishment clause.”

If you read through Justice Brennan’s opinion for the Court in Aguilar v. Felton,  you’ll see that he relies heavily on Meek too. And, as Friendly half-predicted, Justice Powell’s concurrence goes on at length not only about Meek, but it also specifically relies on and emphasizes Judge Friendly’s reading of Meek.

It’s also interesting that none of the dissenting opinions in Aguilar distinguished Meek–another very strong point in support of Judge Friendly’s craftsmanship. Justice O’Connor instead wrote that “experience has demonstrated that the analysis in Part V of the Meek opinion is flawed. At the time Meek was decided, thoughtful dissents pointed out the absence of any record support for the notion that public school teachers would attempt to inculcate religion simply because they temporarily occupied a parochial school classroom….[I]t is time to acknowledge that the risk identified in Meek was greatly exaggerated.” Justice Rehnquist’s dissent does not mention Meek at all, presumably because he continued to dissent from it. And Chief Justice Burger explicitly states that he dissents in Aguilar for the same reasons as he dissented in Meek.

Of course, Agostini v. Felton, decided in 1997, overruled Aguilar and Justice O’Connor’s opinion carried the day (5-4): “We have abandoned the presumption in Meek and [School Dist. of Grand Rapids v.] Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” But that course reversal only highlights the importance of seeing how a master like Judge Friendly went about his work.

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five. Since last week, Wenger has remained #1, Balkin has remained #2, Laycock and Berg have remained #3, Willis has risen to #4, and Gaylord has been replaced by Vischer:

1. ‘The Divine Institution of Marriage’: An Overview of LDS Involvement in the Proposition 8 Campaign by Kaimipono David Wenger (Thomas Jefferson School of Law) [523 downloads]

2. Must We Be Faithful to Original Meaning?  by Jack M. Balkin (Yale  U. – Law School) [221 downloads]

3. Protecting Same-Sex Marriage and Religious Liberty by Douglas Laycock (U. of Virginia School of Law) and Thomas C. Berg (U. of St. Thomas School of Law) [185 downloads]

4. Taxes and Religion: The Hobby Lobby Contraceptive Cases  by Steven J. Willis (U. of Florida) [127 downloads]

5. Do For-Profit Businesses Have Free Exercise Rights? by Robert K. Vischer (U. of St. Thomas) [101 downloads]

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Anastaplo, “Reflections on Religion, the Divine, and the Constitution”

This August, Lexington Books will publish Reflections on Religion, the Divine, and the Constitution by George Anastaplo (Loyola U. of Chicago).  The publisher’s description follows.

In Part One, the uses of divine revelation in the Western world are reviewed by recalling authors that include Euripides, Sophocles, Aristophanes, Plato, Maimonides, Cervantes, Hobbes, and Milton. The challenges posed by such monstrosities as Aztec human sacrifices and the Second World War Holocaust are recalled.

In Part Two, the challenges of religion for and by Americans are examined. Documents such as the Declaration of Independence, the Constitution of 1787, and Presidential Farewell Addresses are recalled. The lives and thought of eminent Americans are also recalled (including George Washington, Benjamin Franklin, Thomas Jefferson, and Abraham Lincoln). Recalled as well are such movements as that of the Mormons and that of the “I Am” sect. The implications both for religious developments and for religious orthodox of modern science are investigated.

The Appendices reinforce these inquiries by providing reminders of how distinguished commentators and others have tried to deal with critical questions noticed in the Essays of this book.

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Black, et al., “Modern Perspectives on Islamic Law”

In July, Edward Elgar Publishing will publish Modern Perspectives on Islamic Law by Ann Black (TC Beirne School of Law), Hossein Esmaeili (Flinders Law School) and Nadirsyah Hosen (U. of Wollongong).  The publisher’s description follows.

This well-informed book explains, reflects on and analyses Islamic law, not only in the classical legal tradition of Shari’a, but also its modern, contemporary context. The book explores the role for Islamic law in secular Western nations and reflects on the legal system of Islam in its classical context as applied in its traditional homeland of the Middle East and also in South East Asia. Written by three leading scholars from three different backgrounds: a Muslim in the Sunni tradition, a Muslim in the Shia tradition, and a non-Muslim woman – the book is not only unique, but also enriched by differing insights into Islamic law. Sir William Blair provides the foreword to book which acknowledges that Islam continues to play a vital role not just in the Middle East but across the wider world, the discussion on which the authors embark is a crucial one. The book starts with an analysis of the nature of Islamic law, its concepts, meaning and sources, as well as its development in different stages of Islamic history. This is followed by accounts of how Islamic law is being practised today. Key modern institutions are discussed, such as the parliament, judiciary, dar al-ifta, political parties, and other important organisations. It continues by analysing some key concepts in our modern times: nation state, citizenship, ummah, dhimmah (recognition of the status of certain non-Muslims in Islamic states), and the rule of law. The book investigates how in recent times, more and more fatwas are issued collectively rather than emanating from an individual scholar. The authors then evaluate how Islamic law deals with family matters, economics, crime, property and alternative dispute resolution. Lastly, the book revisits certain contemporary issues of debate in Islamic law such as burqa, halal food, riba (interest) and apostasy.  Modern Perspectives on Islamic Law will become a standard scholarly text on Islamic law. Its wide-ranging coverage will appeal to researchers and students of Islamic law, or Islamic studies in general. Legal Practitioners will also be interested in the comparative aspects of Islamic law presented in this book.