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Vlas on Religious Freedom in Romania

Natalia Vlas (Babes-Bolyai University)  has posted The Law on Religious Freedom: An Expression of Romanian Democracy? . The abstract follows.

This paper aims to analyze the place of religion in the Romanian society and politics, by focusing specifically on the process of readjusting religious freedom in Romania after 1990. Although the regulation of religious life in accordance with international human rights principles was considered one of the cornerstones of the Romanian democracy, the replacement of the communist legal framework with a new one took more than 17 years and was accompanied by numerous tensions among the religious actors themselves, state institutions and civil society organizations. The analysis of the state of religious freedom two decades after the fall of the communism in Romania reveals ambivalent developments. Despite some undeniable signs of progress, there are still significant areas that require improvement. The most problematic aspects are the maintenance of the two-tier system and the financial dependence of the culte on the state.

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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:

1. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [239 downloads]

2. Suffer the Teenage Children: Child Sexual Abuse in Church Communities by Patrick Parkinson (U. of Sydney – Faculty of Law) [224 downloads]

3. Rethinking Religious Reasons in Public Justification  by Andrew F. March (Yale U.) [203 downloads]

4. Bankrupting the Faith by Pamela Foohey (U. of Illinois College of Law) [140 downloads]

5. And I Don’t Care What It Is: Religious Neutrality in American Law by Andrew Koppelman (Northwestern U. School of Law) [123 downloads]

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Clark on Religions on Sovereigns

Elizabeth A. Clark (J. Reuben Clark Law School) has posted Religions as Sovereigns: Why Religion is “Special” The abstract follows.

Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism theories and the values of (and concerns about) federalism that they identify and draws strong parallels with a range of theories of religious freedom, highlighting its similar values and potential weaknesses. This comparative endeavor highlights the powerful resonance of sovereignty talk in the religion and law field and suggests that sovereignty is part of the deep structure of our understanding of religious liberty.

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Glickstein on the Ministerial Exception

Jed Glickstein (Yale Law School) has posted Should the Ministerial Exception Apply to Functions, Not Persons? The abstract follows.

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court confirmed what the lower courts had been saying for some time: the First Amendment prohibits the application of the employment discrimination laws to the relationship between a church and its ministers. Despite Hosanna-Tabor’s significance, however, the so- called ministerial exception remains in flux. For one thing, it is still unclear who will be deemed a “minister” for purposes of the doctrine. The answer to that foundational question may be more complicated than it appears. Thus far, courts and commentators have assumed that ministerial status is binary; a given employee either is a minister (in which case the First Amendment completely bars her suit) or she is not (in which case her suit proceeds like any other). That way of thinking may make sense for the easy cases, but it fits uneasily with the wide range of positions that have been labeled ministerial by the lower courts. This Note accordingly suggests an alternative framework that more closely tracks the functional considerations that underlie the ministerial exception. In short, it argues that a revised exception — one that applies to ministerial functions, not ministerial persons — better strikes the balance between antidiscrimination values and religious liberty that the First Amendment requires.

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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:

1. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [230 downloads]

2. Suffer the Teenage Children: Child Sexual Abuse in Church Communities by Patrick Parkinson (U. of Sydney – Faculty of Law) [224 downloads]

3. Rethinking Religious Reasons in Public Justification  by Andrew F. March (Yale U.) [196 downloads]

4. The Causes and Cures of Unethical Business Practices – A Jewish Perspective by Steven H. Resnicoff  (DePaul U. College of Law) [157 downloads]

5. Bankrupting the Faith by Pamela Foohey (U. of Illinois College of Law) [139 downloads]

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Jenkins on Copyright Law and Political Theology

Joseph S. Jenkins (U. of California, Irvine) has posted Copyright Law and Political Theology: Censorship and the Forebear’s Desire. The abstract follows. NB: The article is behind a paywall on JStor.

This historical exploration, treating limit moments of copyright law, illuminates correspondences among copyright, censorship, pacts between the sovereign and commercial profit seekers, and inheritance law. Relevant to all of these are powerful forebears’ desires for recognition, modeled on the theological pattern of the father God’s omnipotent Will. Failure to recognize the wide persistence of this premodern theological pattern–which contrasts considerably with the common view that copyrights main function is to incentivize the new–may result in faulty analysis of copyright law, including fair use.

The study begins with Henry VIII’s 1538 Proclamation, which initiates a nationwide book-licensing regime. The Proclamation is put into context with other concerns of Henry at that time. Additional moments treated in this study include: Venetian printing privileges in the late fifteenth century; the London Stationers’ Company as an incorporated mechanism suitable to the crown’s ideology-control projects; efforts by Ponsonby, Greville, and Walsingham to block a competitor’s licensing of a Sidney Arcadia manuscript; the intellectual property clause of the U.S. Constitution; Wordsworth’s later-in-life attempts to make endure eternally, through copyright, the atemporal moment of creation that arose from his early poetry; and Sonny Bono’s (and our own) surprising resemblance to Wordsworth. The conclusion urges joint consideration of copyright and inheritance-law policies.

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Yilmaz on Muslim Secularism

Ihsan Yilmaz (Fatih University) has posted Towards a Muslim Secularism? An Islamic ‘Twin Tolerations’ Understanding of Religion in the Public Sphere. The abstract follows.

Since the mid-1920s, the top-down homogenization and secularization policies of the hegemonic Kemalist elite have aimed at socially engineering secularist nationalist Turkish citizens. The acronym LAST (Laicist, Atatürkist, Sunni, Turk) describes this ideal citizen typology. The state has also tried to monopolize Islam and has attempted to construct a state version of Islam (Lausannian Islam), marginalizing, vilifying and even criminalizing other Islamic interpretations. Nevertheless, non-state Islam and civil Muslim actors have not disappeared from the Turkish public sphere. One of these influential actors is the counter-hegemonic Turkish Islamists. They demand a role for Islam in the political realm, in a binary opposition to the assertively secularist Kemalists. Another influential actor, the intellectual leader of the largest faith-based movement in Turkey, Fethullah Gülen, offers a third way between these two extremes on state-religion-society relations.

This paper endeavors to show that an interpretation of Muslim secularism that inhabits religious and secular worlds simultaneously, that is in critical engagement with them and that blurs conventional political lines on the hotly debated issue of state-religion-society relations is possible.

This understanding of ‘Islamic twin tolerations’ challenges the artificially constructed binary oppositions. It also resonates with the Habermasian (2006) ‘religion in the public sphere.’ It argues that the faithful from all religious backgrounds can legitimately have demands based on religion in the public sphere and in the final analysis; it is the legislators’ epistemic task to translate these demands into a secular language in the legislative process.

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Gaylord on Free Exercise and the HHS Mandate

Scott Gaylord (Elon University School of Law) has posted For-Profit Corporations, Free Exercise, and the HHS Mandate. The abstract follows.

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the 15 cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free exercise clause and laws, such as the HHS mandate, that are alleged to be neutral and generally applicable. But these cases are made even more difficult because of a specific claim that is raised in each case — that corporations can exercise religion under the First Amendment and RFRA. As several district courts have noted, “whether secular corporations can exercise religion is an open question.” This paper analyzes this novel and unresolved issue, arguing that, just as corporations can engage in free speech under Citizens United, for-profit corporations can exercise religion under the free exercise clause and RFRA.

Although the Supreme Court has not addressed this specific issue, I argue that it has established rules for determining whether corporations can invoke particular constitutional rights and that, under these rules, corporations can invoke the protection of the free exercise clause. Several district courts have reached the opposite conclusion, while several others have avoided the issue altogether. Relying primarily on a single footnote in First Nat’l Bank of Boston v. Bellotti, the courts denying free exercise protection to for-profit corporations maintain that the free exercise of religion is a “purely personal” right that is limited to individuals and religious non-profit organizations. This paper contends, however, that a more detailed review of Bellotti, Citizens United, and the Court’s other decisions regarding the constitutional rights of corporations reveals that free exercise, like the freedom of speech, is not a “purely personal” right. Consequently, corporations — whether for-profit or non-profit — can claim its protection. Moreover, in the wake of Bellotti and Citizens United, neither the “profit motive” of a for-profit corporation nor the “religious nature” of religious organizations (e.g., churches) justifies limiting the free exercise clause only to individuals and non-profit religious organizations. Although many (perhaps most) corporations may choose not to engage in religious activities, there is no constitutional basis for precluding a priori all for-profit businesses from raising free exercise claims.

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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:

1. Suffer the Teenage Children: Child Sexual Abuse in Church Communities by Patrick Parkinson (U. of Sydney – Faculty of Law) [219 downloads]

2. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [206 downloads]

3. Rethinking Religious Reasons in Public Justification by Andrew F. March (Yale U.) [188 downloads]

4. The Causes and Cures of Unethical Business Practices – A Jewish Perspective by Steven H. Resnicoff  (DePaul U. College of Law) [145 downloads]

5. Bankrupting the Faith by Pamela Foohey (U. of Illinois College of Law) [131 downloads]

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Lipez on The Judaism of Louis Brandeis

Hon. Kermit Lipez (US Court of Appeals, 1st Circuit) has posted Doing Justice: The Judaism of Louis Brandeis. The abstract follows.

There are many ways to think about justice, some philosophical, others more pragmatic. My own leanings are pragmatic. I have never been embarrassed to say that “justice means doing the right thing,” understanding that some elaboration may be necessary. Nonetheless, it was reassuring to discover that the great Supreme Court Justice Louis Brandeis had a similar pragmatic bent. I made this discovery when I was preparing a Yom Kippur sermon about Justice Brandeis. I had been puzzled for some time by Justice Brandeis famous statement, “Justice is but truth in action.” What exactly did he mean? Although the answer to that question, set forth in my sermon, includes a discussion of Justice Brandeis attitude toward his Judaism, I think that discussion has relevance for lawyers and judges of all religions. That relevance should not be surprising. There is a commonality between law and religion. They both teach us to do the right thing.