Last week, the Center for Law and Religion sponsored a visit to St. John’s Law School by Rabbi Yaron Catane, who until recently served as Legal Counsel to the Chief Rabbinate of Israel and now deals with religious affairs as a Legal Advisor in the Prime Minister’s Office. Rabbi Catane was the guest lecturer in Professor Keith Sharfman’s seminar on Jewish Law. Among other things, Rabbi Catane spoke about the origins, powers, and duties of his office, some of the legal and political issues he encountered there, and the ways in which the Chief Rabbinate’s interpretations of traditional religious texts have been subject to increasing scrutiny by the Israeli Supreme Court. Details of the visit are here.
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. This week, Michal Gilad moves up to #1, Andrew Koppelman moves up to #2; Patrick McKinley Brennan rises to #3; and Carolina Mala Corbin and Kenneth Einar Himma join the list at #4 and #5 respectively.
1.In God’s Shadow: Unveiling the Hidden World of Domestic Violence Victims in Religious Communities by Michal Gilad (University of Pennsylvania Law School) [410 downloads]
2.‘Freedom of the Church’ and the Authority of the State by Andrew Koppelman (Northwestern University School of Law) [195 downloads]
3.Resisting the Grand Coalition in Favor of the Status Quo by Giving Full Scope to the Libertas Ecclesiae by Patrick McKinley Brennan (Villanova University School of Law) [157 downloads]
4.Corporate Religious Liberty by Caroline Mala Corbin (University of Miami School of Law) [122 downloads]
5.What’s So Damn Special About Religion, Anyway? (Review Essay of Brian Leiter, Why Tolerate Religion?) by Kenneth Einar Himma (University of Washington-School of Law) [90 downloads]
Allan, “Refugees of the Revolution: Experiences of Palestinian Exile”
This month, Stanford University Press published Refugees of the Revolution: Experiences of Palestinian Exile by Diana Allan (Cornell University). The 
publisher’s description follows.
Some sixty-five years after 750,000 Palestinians fled or were expelled from their homeland, the popular conception of Palestinian refugees still emphasizes their fierce commitment to exercising their “right of return.” Exile has come to seem a kind of historical amber, preserving refugees in a way of life that ended abruptly with “the catastrophe” of 1948 and their camps—inhabited now for four generations—as mere zones of waiting. While reducing refugees to symbols of steadfast single-mindedness has been politically expedient to both sides of the Arab-Israeli conflict it comes at a tremendous cost for refugees themselves, overlooking their individual memories and aspirations and obscuring their collective culture in exile.
Refugees of the Revolution is an evocative and provocative examination of everyday life in Shatila, a refugee camp in Beirut. Challenging common assumptions about Palestinian identity and nationalist politics, Diana Allan provides an immersive account of camp experience, of communal and economic life as well as inner lives, tracking how residents relate across generations, cope with poverty and marginalization, and plan––pragmatically and speculatively—for the future. She gives unprecedented attention to credit associations, debt relations, electricity bartering, emigration networks, and NGO provisions, arguing that a distinct Palestinian identity is being forged in the crucible of local pressures.
What would it mean for the generations born in exile to return to a place they never left? Allan addresses this question by rethinking the relationship between home and homeland. In so doing, she reveals how refugees are themselves pushing back against identities rooted in a purely nationalist discourse. This groundbreaking book offers a richly nuanced account of Palestinian exile, and presents new possibilities for the future of the community.
Bonner, Denny & Connolly (eds.), “Empowering the People of God: Catholic Action Before and After Vatican II”
This month, Fordham University Press published Empowering the People of 
God: Catholic Action Before and After Vatican II, edited by Jeremy Bonner, Christopher D. Denny, and Mary Beth Fraser Connolly. The publisher’s description follows:
The early 1960s were a heady time for Catholic laypeople. Pope Pius XII’s assurance “You do not belong to the Church. You are the Church” emboldened the laity to challenge Church authority in ways previously considered unthinkable. Empowering the People of God offers a fresh look at the Catholic laity and its relationship with the hierarchy in the period immediately preceding the Second Vatican Council and in the turbulent era that followed. This collection of essays explores a diverse assortment of manifestations of Catholic action, ranging from genteel reform to radical activism, and an equally wide variety of locales, apostolates, and movements.
McConnell on the Privileges or Immunities Clause as Repository of Traditional Rights
Michael McConnell has a very interesting article just out in the University of Illinois Law Review called, Ways to Think About Unenumerated Rights (one of several papers considering Akhil Amar’s book, The Unwritten Constitution). After criticizing the Supreme Court’s substantive due process jurisprudence as a historically unsupportable source of unenumerated rights, Michael goes on to note two other possible sources of unenumerated rights in the Constitution: the Ninth Amendment and the Privileges or Immunities Clause of the 14th Amendment.
In both cases, however, the nature and scope of unenumerated rights are substantially limited. The Ninth Amendment states that the enumeration of rights in the Constitution “shall not be construed to deny or disparage others retained by the people.” In contrast to theorists who read the clause to protect a whole suite of positive rights, Michael sees it as protecting negative rights–freedoms from interference–which the people may give up in exchange for more attractive protections from the government. These negative rights are, therefore, violable: “the people decide which of these rights to relinquish in exchange for the protections and benefits of civil society.” All that the Ninth Amendment is doing is not “denying or disparaging” those “retained” rights; it is not enshrining them or giving them the stature of enumerated rights. These “natural” rights control unless “legislative abrogation is clear.”
Michael’s second example of unenumerated rights in the Constitution is even more interesting: the Privileges or Immunities Clause of the Fourteenth Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….”), which was rendered toothless and superfluous by the Slaughterhouse Cases.
But if one were to give the Clause content, there are two options–an enumerated and an unenumerated possibility. The enumerated possibility is to say that the content of the Privileges or Immunities Clause is the Bill of Rights, now applied against the states. This is the familiar and highly plausible position that the Privileges or Immunities Clause is the true vehicle for incorporation of the Bill of Rights against the states (see, e.g., some of the work of Kurt Lash and Amar himself).
The unenumerated possibility is to say that the content of the Privileges or Immunities Clause mirrors the content of the Privileges and Immunities Clause of Article IV. Some of that content was fleshed out by Justice Bushrod Washington in the federal circuit case of Corfield v. Coryell (1823) (my former constitutional law students will remember this as the “clamming case”). There, Justice Washington wrote that the P&I Clause refers to those unenumerated rights “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”
But how would one know which sort of unenumerated rights fell into this group? If the Ninth Amendment’s limits are set by the concept of negative liberty, what are the limits on unenumerated rights under this theory of the Privileges or Immunities Clause? The answer is that only those rights that are long-standing, traditionally and broadly recognized, and with deep historical roots qualify:
Taken in a broad spirit, this might be thought to authorize judges to identify those rights that are firmly embedded on our laws and traditions, both as a matter of longevity and as a matter of national consensus—as the Court held in Washington v Glucksberg. This interpretation draws strength from the overall thrust of the Fourteenth Amendment as a nationalization of the content of rights. In effect, when a particular right has been recognized by a large majority of states for a long period of time, judges are empowered to treat it as a “privilege or immunity” of national citizenship and enforce it against outlier states that may depart from that consensus. Rights become national by virtue of time, consensus, and experience. This could provide a stronger explanation for Griswold [v. Connecticut]: because every other state recognized the right of married couples to use contraceptives, and had for many decades, the Court was within its authority to declare Connecticut’s law invalid.
Note, though, that this approach does not give courts authority to engage in contentious moral reasoning or to elevate one side in a reasonable disagreement to constitutional victor. It provides no support for Roe v. Wade, for example. Enforcing national consensus is not an exercise in moral philosophy but of determining the weight of national practice. It is a nationalistic and traditionalist inquiry, not a moralistic or progressive one.
Around the Web This Week
Some interesting law & religion stories from around the web this week:
- A New York trial court held that an agreement negotiated before a Jewish rabbinical court (Bet Din) is unenforceable because it was not formally acknowledged in the manner required by NY Domestic Relations law
- On Wednesday, Governor Pat Quinn signed a bill on gay marriage, making Illinois the 16th state to allow same-sex marriage
- The general synod of the Church of England has voted narrowly against the appointment of women as bishops
- Plans to move the US Embassy to the Vatican within the grounds of the larger American embassy to Italy are causing controversy
- Pope Francis said the Catholic Church will not accept a Middle East without Christians, who are often forced to flee areas of unrest in the region
- Jews in Israel are increasingly ascending the Temple Mount in Jerusalem’s Old City, a sacred site controlled for centuries by Muslims, who see the visits as a provocation that could undermine the fragile peace talks started this summer.
- Muslims and Jews of Europe, united under the leadership of the Gathering of European Muslim and Jewish Leaders (GEMJL), call on the Parliamentary Assembly of the Council of Europe to rescind its allegedly anti-democratic resolution that labels male circumcision a “violation of the physical integrity of children”
- An Ohio county court has upheld a school board’s decision to fire a science teacher for teaching creationism and religious doctrine in his middle-school classroom
Mancini & Rosenfeld (eds.), “Constitutional Secularism in an Age of Religious Revival”
This December, Oxford University Press will publish Constitutional Secularism in an Age of Religious Revival edited by Susanna Mancini (University of Bologna Law) and Michel Rosenfeld (Yeshiva University). The publisher’s description follows.
The global movement of culture and religion has brought about a serious challenge to traditional constitutional secularism. This challenge comes in the form of a political and institutional struggle against secular constitutionalism, and a two pronged assault on the very legitimacy and viability of the concept. On the one hand, constitutional secularism has been attacked as inherently hostile rather than neutral toward religion; and, on the other hand, constitutional secularism has been criticized as inevitably favouring one religion (or set of religions) over others.
The contributors to this book come from a variety of different disciplines including law, anthropology, history, philosophy and political theory. They provide accounts of, and explanations for, present predicaments; critiques of contemporary institutional, political and cultural arrangements, justifications and practices; and suggestions with a view to overcoming or circumventing several of the seemingly intractable or insurmountable current controversies and deadlocks.
The book is separated in to five parts. Part I provides theoretical perspectives on the present day conflicts between secularism and religion. Part II focuses on the relationship between religion, secularism and the public sphere. Part III examines the nexus between religion, secularism and women’s equality. Part IV concentrates on religious perspectives on constraints on, and accommodations of, religion within the precincts of the liberal state. Finally, Part V zeroes in on conflicts between religion and secularism in specific contexts, namely education and freedom of speech.
Luhmann, “A Sociological Theory of Law”
This December, Routledge will publish A Sociological Theory of Law by Niklas Luhmann (University of Bonn). The publisher’s description follows.
Niklas Luhmann is recognised as a major social theorist, and his treatise on the sociology of law is a classic text. For Luhmann, law provides the framework of the state, lawyers are the main human resource for the state, and legal theory provides the most suitable base from which to theorize on the nature of society. He explores the concept of law in the light of a general theory of social systems, showing the important part law plays in resolving fundamental problems a society may face. He then goes on to discuss in detail how modern ‘positive’ – as opposed to ‘natural’ – law comes to fulfil this function. The work as a whole is not only a contribution to legal sociology, but a major work in social theory. With a revised translation, and a new introduction by Martin Albrow.
NYPD Beard Policy Violates the Free Exercise Clause
I am a little late in noting this decision of the United States District Court for the Southern District of New York involving a Free Exercise Clause challenge to the New York Police Department’s facial hair policy by a NYPD probationary police officer. The probationary officer is a member of the Chabad Lubavitch Orthodox Jewish community, and his faith prohibits him from cutting his facial hair. The NYPD’s policy generally prohibits the wearing of beards but makes exceptions for undercover duties, medical conditions, and religious reasons, but the last two exceptions require written approval. In practice, however, even accommodated beards may only be 1 millimeter or less in length, and the plaintiff’s natural beard grew to 1 inch. So the accommodations would not work for the plaintiff, because they would require him to trim his beard.
After his request for exemption was denied and he was eventually fired, the plaintiff sued under the Free Exercise Clause. One might think that the plaintiff would lose, because the policy was neutral as to religion and applied generally (see Employment Division v. Smith). But the plaintiff won. The City argued that the beard policy and the 1 millimeter exemption was a neutral, generally applicable rule, but the court disagreed. It said: “‘[f]acial neutrality is not determinative’ when the record shows that Plaintiff was terminated pursuant to a policy that is not uniformly enforced.”
What is particularly interesting is the nature of the exemptions that the court found trigger strict scrutiny. It isn’t just the stated exemptions in the policy. It’s the fact that “the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound.” There were temporary exemptions to the one millimeter rule granted for religious reasons and family reasons. And there was under-enforcement of the one millimeter rule against officers who violated the policy for unspecified reasons. The court also rejected the City’s claim that shaving is necessary in order to render effective the fitness testing apparatus used by the Department, which is fitted over the officers’ mouth and needs to sit flush against the face. There was evidence that some officers were accommodated as to this requirement for medical reasons, and so strict scrutiny applied when plaintiff’s request for accommodation on religious grounds was denied. Here the court relied on then-Judge Alito’s famous police-beard case in Fraternal Order of Police Newark Lodge #12 v. City of Newark, in which the court held that where the government has made a “value judgment” that medical reasons are more important than religious reasons, strict scrutiny applies.
I’ve written before several times about the gaping hole (see Chapter Eight) in Smith that is being broadened all the time by the problem of the general applicability exception carved right into Smith itself. In this case, it isn’t only explicit exemptions to the policy that trigger strict scrutiny, but the “de facto” exemptions and accommodations in implementation and administration of the policy. If discretion in enforcement of a policy, and the exceptions that governments make all the time to their rules, really do trigger strict scrutiny, then one should expect to see the number of free exercise claims greatly increase in the coming years. Smith’s rule will look a whole lot less rule-like than it actually appears. What free exercise effect this expanding exception to Smith may have on other sorts of cases in which executive and administrative discretion as to the enforcement of the law is high remains to be seen.
Rieffer-Flanagan, “Evolving Iran: An Introduction to Politics and Problems in the Islamic Republic”
Early this year, Georgetown published Evolving Iran: An Introduction to Politics 
and Problems in the Islamic Republic, by Barbara Ann Rieffer-Flanagan (Central Washington University). The publisher’s description follows.
Evolving Iran presents an overview of how the politics and policy decisions in the Islamic Republic of Iran have developed since the 1979 revolution and how they are likely to evolve in the near future. Despite the fact that the revolution ushered in a theocracy, its political system has largely tended to prioritize self-interest and pragmatism over theology and religious values, while continuing to reinvent itself in the face of internal and international threats.
The author also examines the prospects for democratization in Iran. Since the early years of the twentieth century, Iranians have attempted to make their political system more democratic, yet various attempts to produce a system where citizens have a meaningful voice in political decisions have failed. This book argues that greater democratization is unlikely to occur in the short term, especially in light of increased threats from the international community.
This accessible overview of Iran’s political system covers a broad array of subjects, including foreign policy, human rights, women’s struggle for equality, the development and evolution of elections, and the institutions of the political system including the Revolutionary Guards and Assembly of Experts. It will appeal to undergraduates and the general public who seek to understand a country and regime that has mystified Westerners for decades.