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Bernardini on Religious Liberty in the Catholic-Muslim Dialogue

Paola Bernardini (Pontifical U. St. Thomas Aquinas, Rome) has posted Religious Liberty: A Common Challenge for Catholic-Muslim Dialogue. The abstract follows.

Comparing the struggles of the Church on the subject of religious liberty with those in course of progress within Islam may be conducive to greater interreligious understanding. It is not by chance that Muslim and Christian scholars have adopted this approach on more than one occasion. Even Pope Benedict XVI, speaking to the Roman Curia at the end of 2006, seemed to implicitly acknowledge this fact when he stated that “the Muslim world today finds itself facing an extremely urgent task . . . very similar to the one . . . imposed upon Christians beginning in the age of the Enlightenment”: namely the task of recognizing the freedom of faith and finding appropriate solutions in this regard. Starting from this presumption, the present paper will be divided mainly into two parts. Part I will briefly illustrate the positions of the Church before and after the Second Vatican Council. Part II will delve into the positions of some modern Islamic Organizations, countries, and scholars on the civil right to religious freedom.

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Rienzi on Religious Liberty for Money-Makers

Mark Rienzi (Catholic University of America – Columbus School of Law) has posted God and the Profits: Is There Religious Liberty for Money-Makers? The abstract follows.

Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many religions impose, and at least some businesses follow, religious requirements for the conduct of profit-making businesses. Thus businesses can be observed to engage in actions that are obviously motivated by religious beliefs: from preparing food according to ancient Jewish religious laws, to seeking out loans that comply with Islamic legal requirements, to encouraging people to “know Jesus Christ as Lord and Savior.” These actions easily qualify as exercises of religion.

It is widely accepted that religious freedom laws protect non-profit organizations. The argument for denying religious freedom in the for-profit context rests on a claimed categorical distinction between for-profit and non-profit entities. Yet a broad examination of how the law treats these entities in various contexts severely undermines the claimed categorical distinction. Viewed in this broader context, it is clear that denying religious liberty rights for profit-makers would actually require singling out religion for disfavored treatment in ways forbidden by the Free Exercise Clause and federal law.

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Helfand on Implied Consent and the Contraception Mandate

Michael Helfand (Pepperdine University School of Law) has posted What is a ‘Church’?: Implied Consent and the Contraception Mandate. The abstract follows.

This Article considers the “religious employer” exception to the “contraception mandate” – that is, the “preventative care” requirements announced by Department of Health and Human Services pursuant to the Patient Protection and Affordable Care Act. This exception has triggered significant litigation with a variety of employers claiming that they have been excluding from the “religious employer” classification in violation of both the First Amendment and the Religious Freedom Restoration Act. In considering these claims, this Article applies an “implied consent” framework to these cases, which grounds the authority of religious institutions in the presumed consent of their members. On such an account, consent can be assumed so long as members understood the unique religious objectives of the institution when they joined, thereby implicitly authorizing the institution to make rules related to accomplishing these uniquely religious objectives. Building on this implied consent framework, this Article argues that the First Amendment should protect institutions from the requirements of the contraception mandate so long as these institutions were both organized around a core religious mission and where that religious mission was open and obvious to employees. In such circumstances, courts should presume that employees recognized the unique religious objectives of their employer and thereby implicitly authorized their employer to make rules related to achieving these religious goals.

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Powell on Islamic Law in Turkey

Russell Powell (Seattle University School of Law) has posted Evolving Views of Islamic Law in Turkey. The abstract follows.

The tradition of Kemalist secularism (laiklik) in Turkey is often cited to distinguish Turkey as an exceptional case among predominantly Muslim countries. While it is true that the Turkish Constitution, laws, and legal opinions approach the relationship between the state and religion very differently than those of Iran, Saudi Arabia, Egypt, or even Indonesia, it would be wrong to underestimate the role that religion plays in the formation of Turkish legal norms, including citizen understanding of those norms. There is a wealth of literature describing the nature of Turkish secularism and its evolution. A number of both quantitative and qualitative studies inquire about the preference for Shari’a among Turkish voters. The typical question asks whether respondents favor the establishment of a Shari’a state. Over the past fifteen years, these surveys have received response rates ranging between five and twenty-five percent in favor of such a state. However, these results are extremely problematic, because they do not provide any context or meaning for “the establishment of a Shari’a state,” either for those who favor it or for those who oppose it. This study begins to unpack the range of possible meanings attributed to Shari’a within Turkey, both among voters and among intellectuals, as a framework for future empirical studies and as a basis for deeper understandings of the role of Islam within Turkish law and politics.

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Hurst on Hosanna-Tabor and Separationism

Alan Hurst (BYU – J. Reuben Clark Law School) has posted Hosanna-Tabor and the Exaggerated Decline of Separationism. The abstract follows.

Scholars generally agree that the separation of church and state, as an approach to the Religion Clauses, has been in decline for decades. Yet the Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran School v. EEOC is strongly and unanimously separationist, and none of scholars’ explanations for separationism’s decline adequately explain Hosanna-Tabor.

I argue that previous scholarship fails to explain Hosanna-Tabor because it has been insufficiently attentive to what “separationism” means and the ways in which separationist approaches to the Religion Clauses can differ from each other. It has therefore failed to appreciate the ways in which the Supreme Court’s separationist principles have evolved rather than being repudiated, in particular the Court’s increased willingness to see free private choice as an adequate buffer between church and state and the Court’s increasingly narrow understanding of what counts as religion for separationist purposes.

These evolving aspects of the Court’s approach to separationism help make sense of Hosanna-Tabor, in which free private choice was not an issue and the church’s interests at stake were clearly part of the religious sphere. Further, they lead to a few predictions about the future of separationism and recommendations for pro-separationist scholars and activists.

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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) [212 downloads]

2. Rethinking Religious Reasons in Public Justification  by Andrew F. March (Yale U.) [160 downloads]

3. Queering Schools, GSAs and the Law: Taking on God, by Donn Short (U. of Manitoba Faculty of Law) [136 downloads]

4. The Causes and Cures of Unethical Business Practices – A Jewish Perspective, by Steven H. Resnicoff  (DePaul U. College of Law) [133 downloads]

5.Bankrupting the Faith, by Pamela Foohey, (U. of Illinois College of Law) [125 downloads]

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Ordon on Freedom of Association in the People’s Republic of Poland and Restrictions on the Catholic Church

Marta Ordon (John Paul II Catholic U. of Lublin, Faculty of Law) has posted Freedom of Association in the People’s Republic of Poland and Its Restriction with Regard to the Roman Catholic Church. The abstract follows.

The desire to associate with others is a manifestation of the social nature of every human being. In modern democracies, the right to associate is regarded as one of the personal liberties. Such democratic states create favorable conditions for the operation of various types of organizations, including those established to pursue religious goals. However, it was not the case in the People’s Republic of Poland (“PRP”), that is, under the communist rule. In a country modelled on the Soviet state and acknowledging the supremacy of the Communist Party over the entire society, all the other actors of the social system were expected to be mere “dummies on the public scene dominated by the Communist Party.” It is worth noting that the political system deployed in Poland after World War II was based on the atheistic Marxist ideology that was hostile to any religion or religious organizations, particularly the Roman Catholic Church. What follows, when pondering upon the issue of freedom of association in the PRP and its restriction with regard to the Catholic Church’s organizations, the ideological aspects must not be disregarded.

As a part of the introduction to the main body of the paper, the author will clarify the difference between the concept of freedom of association as adopted modern democracies and that reinforced in socialist countries, as well as demonstrating the attitude of communist authorities to the Roman Catholic Church and its organizations. Further, legal and factual constraints will be exposed that led to almost a total elimination of the Church-led organizations in communist Poland. The paper primarily explores the Polish literature on the subject and the material gathered in the Polish state and Church archives, since nothing about the subject has yet been published in English.

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Broyde on Lessons for Sharia Courts from the Beth Din in America

Michael J. Broyde (Emory U.) has posted Jewish Law Courts in America: Lessons Offered to Sharia Courts by the Beth Din of America Precedent. The abstract follows.

After a lengthy trial-and-error history, Jewish law in America has found a home in a well-defined and expansive system of Jewish law courts around the country referred to as batei din. The Beth Din of America (BDA), one of the nation’s most prominent rabbinic courts, was founded in 1960 to accommodate the portion of the Jewish community in America committed to living in accordance with both secular and religious law. For some time, batei din struggled to find their footing within the American legal system. Secular courts were initially uncomfortable upholding and enforcing decisions issued in accordance with what was essentially foreign law. Today, however, the BDA provides a sprawling network of Jewish law courts that function as arbitration panels (and more), offering litigants access to a religious forum marked by the characteristic expedience and affordability of the arbitration process. More significantly, the BDA has gained widespread acceptance among America’s secular courts, which, to date, have never overturned a BDA-issued decision. As the Muslim community in America embarks upon a quest to develop and refine its own religious court system, it should regard the BDA precedent as a useful navigation tool.

Although the BDA is now a fifty-year-old organization, its true metamorphosis as an arbitration panel began only in 1996 when it gained autonomy from the Rabbinical Council of America. Read more

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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.

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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) [201 downloads]

2. Rethinking Religious Reasons in Public Justification  by Andrew F. March (Yale U.) [153 downloads]

3. Queering Schools, GSAs and the Law: Taking on God, by Donn Short (U. of Manitoba Faculty of Law) [133 downloads]

4. The Causes and Cures of Unethical Business Practices – A Jewish Perspective, by Steven H. Resnicoff  (DePaul U. College of Law) [130 downloads]

5. Bankrupting the Faith, by Pamela Foohey, (U. of Illinois College of Law) [116 downloads]