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Sekulow & Zimmerman on Jews for Jesus, 25 years later

Jay Alan Sekulow and Erik M. Zimmerman (both from American Center for Law and Justice) have posted Reflections on Jews for Jesus: Twenty-five Years Later. The abstract follows.

This Article marks the twenty-fifth anniversary of the Supreme Court’s decision in Board of Airport Commissioners v. Jews for Jesus, Inc. The Court held, in a unanimous decision, that LAX Resolution No. 13787 declaring that Los Angeles International Airport’s  central terminal area “is not open for First Amendment activities by any individual and/or entity”—which airport officials interpreted to allow “airport-related” expression and forbid other expression, such as religious leafleting—violated the Free Speech Clause of the First Amendment. More broadly, Jews for Jesus contributed to the fight to provide equal footing for religious speech in the free speech arena, a development that has become all the more important since the Supreme Court abandoned the application of strict scrutiny in free exercise cases in 1990.

This Article discusses the Jews for Jesus litigation and the Supreme Court decision’s impact on First Amendment jurisprudence. Part I provides legal background for the case, discussing various Supreme Court cases decided before Jews for Jesus that addressed restrictions on leafleting or assembly, laws that provided government officials with unfettered discretion, or claims of a free speech right to access various types of public property for expressive activities. Part II discusses the Jews for Jesus litigation, from the enactment of the Resolution to the issuance of the Supreme Court’s decision. Part III discusses the impact and continued legal relevance of Jews for Jesus. Part IV describes the effect of Jews for Jesus over the past twenty-five years from a legal, practical, and personal perspective, as well as the developments in the law of religious speech since the 1987 decision.

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Acevedo on Secularism in the Indian Context

Deepa Das Acevedo (Ph.D. Student, U. of Chicago) has posted Secularism in the Indian Context. The abstract follows.

Indian constitutional framers sought to tie their new state to ideas of modernity and liberalism by creating a government that would ensure citizens’ rights while also creating the conditions for democratic citizenship. Balancing these two goals has been particularly challenging with regard to religion, as exemplified by the emergence of a peculiarly Indian understanding of secularism which requires the non-establishment of religion but not the separation of religion and state. Supporters argue that this brand of secularism is best suited to the particular social and historical circumstances of independent India. This article suggests that the desire to separate religion and state is integral to any understanding of secularism and that, consequently, the Indian state neither is nor was meant to be secular. However, Indian secularists correctly identify the Indian state’s distinctive approach to religion-state relations as appropriate to the Indian context and in keeping with India’s constitutional goals.

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Eko on Hate Speech in the US and France

Lyombe S. Eko (University of Iowa) has posted New Medium, Old Free Speech Regimes: The Historical and Ideological Foundations of French & American Regulation of Bias-Motivated Speech and Symbolic Expression on the Internet. The abstract follows.

This article analyzed how the United States and France regulate bias-motivated communication or hate speech on the Internet. Communication that is characterized by vitriolic expressions of hatred towards individuals or groups on the basis of their race, ethnicity, religion, national origin, or sexual orientation is permissible in the United States because the country has an individualistic, libertarian worldview in which freedom of speech takes pride of place. Under the First Amendment, the rights of the speaker take precedence over the feelings of the listener. In contrast, France has a communitarian, moral philosophical system in which civility and equality take precedence over individual speech rights. These contrasting perspective were evident in the Yahoo! cases that were heard by courts in both countries.

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Walhof on Religion and the Public Sphere

Darren R. Walhof (Grand Valley State University) has posted Habermas, Same-Sex Marriage and the Problem of Religion in Public Life. The abstract follows.

This article addresses the debate over religion in the public sphere by analysing the conception of ‘religion’ in the recent work of Habermas, who claims to mediate the divide between those who defend public appeals to religion without restriction and those who place limits on such appeals. I argue that Habermas’ translation requirement and his restriction on religious reasons in the institutional public sphere rest on a conception of religion as essentially apolitical in its origin. This conception, I argue, remains embedded in a standard secularization framework, despite Habermas’ claim to offer a new account of secularization. This approach betrays the complex reality of the political constitution of religion and the religious constitution of politics, as demonstrated by the current debate about marriage rights in the USA. In mischaracterizing the inherently public and political dimensions of religion, Habermas undermines the effectiveness of his normative framework.

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Witte Jr. & Nichols on the Jurisdiction of Religious Matrimonial Tribunals

John Witte Jr. (Emory University School of Law) and Joel A. Nichols (University of St. Thomas School of Law) have posted Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions. The abstract follows.

In many areas of law and society, religion and law exercise “overlapping jurisdictions.” Often such overlapping claims concern institutions that have both religious and political dimensions, such as education and schooling; charity and social welfare; and marriage and family life. It is the third of these mixed institutions – marriage and the family – that is the focus of this Essay. The headline battles today are over what forms of marriage should be recognized by the state: straight versus same sex marriage, contract versus covenant marriage, monogamous versus polygamous marriage, and more. But an emerging battle concerns not the forms of marriage, but the forums in which marriage and family cases are adjudicated. Specifically, the new battle is looming over the place of faith-based family laws and religious tribunals.

Such jurisdictional conflicts have recently resulted in a growing set of “anti-Shari’a law” statutes, first in Oklahoma and now in Kansas, South Dakota, and elsewhere. Such statutes are based on rather slender, if not specious, rationales – and on a purported study that has not been sufficiently assessed. We argue, contrary to this study, that the very few cases cited by proponents of anti-Shari’a statutes say far more about the use of ordinary principles of comity regarding the law of foreign nations, respect for the voluntary choices of individuals, and a sense of growing multiculturalism in general than they do about any sort of fanciful imposition of Shari’a law on unwitting parties. We oppose such anti-Shari’a laws for their targeted discrimination, their duplication of other laws and decisional norms, their potential conflict with the Federal Arbitration Act, and more.

But hard questions persist that cannot be easily swept away with a mere assertion that religious groups should enjoy autonomy over the marriage and family affairs of their voluntary faithful. Those are the questions that we have been probing and encouraging others to probe in this and prior writings: What are the appropriate lines between the civil state and religions with respect to marriage? Civil marriage and divorce are perhaps a least common denominator for all citizens, but can there be variations if accompanied by base level protections for women and children? And how can the state best protect vulnerable members and also advance its liberal ends? Such hard questions need not lead to a jurisdictional stand-off between law and religion, however, nor to a universal and over-reaching claim by the state. Instead, negotiation, compromise, and mutual respect may lead to more nuanced and achievable results – especially if we are careful not to be so distracted by conversations about the propriety of Shari’a that we miss the actual complications of the growing marital and legal pluralism in the United States.

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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. Toleration: Is There a Paradox? by Jeremy Waldron (N.Y.U. School of Law) [189 downloads]

2. Suffer the Teenage Children: Child Sexual Abuse in Church Communities by Patrick Parkinson (U. of Sydney – Faculty of Law) [187 downloads]

3. Rethinking Religious Reasons in Public Justification  by Andrew F. March (Yale U.) [140 downloads]

4. Queering Schools, GSAs and the Law: Taking on God, by Donn Short (U. of Manitoba Faculty of Law) [121 downloads]

5. The Causes and Cures of Unethical Business Practices – A Jewish Perspective, by Steven H. Resnicoff  (DePaul U. College of Law) [118 downloads]

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Olree on James Madison’s Formative Experiences with Religious Establishments

Andy G. Olree (Faulkner U. – Jones School of Law) has posted “Pride Ignorance and Knavery”: James Madison’s Formative Experiences with Religious Establishments. The abstract follows.

Judicial interpretations of the First Amendment’s religion clauses have purported to rely heavily on the history of the American Founding era. Today, it seems no Founder carries more weight in religion clause opinions than James Madison, a seminal figure the Supreme Court has repeatedly credited as “the leading architect of the religion clauses of the First Amendment”—most recently in January 2012, as it relied heavily on Madison’s views in deciding the Hosanna-Tabor case. But courts citing Madison have tended to focus on the short period beginning with his “Memorial and Remonstrance” in 1785 and ending with the ratification of the Bill of Rights in 1791. Less frequently, a court might refer to particular subsequent events or writings from Madison’s life. But to this point, both scholars and judges have paid relatively little attention to his early, formative years, the years leading to his interest in church-state issues and his entry into politics. This Article posits that his early experiences with the Anglican religious establishment in colonial Virginia played an instrumental role in shaping his lifelong thought on church and state, in particular his interest in religious liberty and his opposition to religious establishments, religious persecution, and laws that strayed into the sphere of religion. Accordingly, the Article examines Madison’s formative experiences with religious establishments in order to provide a fuller understanding of his views of the natural right of religious liberty.

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Liviatan on the Changing Function of Law in Europe’s Cultural Debates

Ofrit Liviatan (Harvard U.) has posted From Abortion to Islam: The Changing Function of Law in Europe’s Cultural Debates. The abstract follows.

The Article rethinks the law’s role in present-day European debates over Islam in light of its calming effects on the once fiercely-fought abortion reforms across Western Europe. Using examples from Germany, Italy, France, Belgium, Britain, the Netherlands and Switzerland the article demonstrates that the role of the legal process in each of these culture-based debates diverged along its two social functions. Reflecting growing public anxieties, legal actions concerning Muslims typically focused on generating social and cultural change, foreclosing the likelihood of political compromises. In contrast, at the time of abortion reform legal measures acted as mechanisms of social and cultural order, contributing to the pacification of the fierce public controversies even as moral disagreements over abortion endured. Drawing on this comparison, the article suggests that Europe’s constitutional review processes present a compromise-building path to deliberate contemporary conflicts over Islam.

The Article proceeds in three parts. Part II and III analyze the legal developments in the context of Islam and abortion across Western Europe, revealing a contrasting dynamics in the roles of the legal process in each of these debates. Part IV assesses the effects of the legal process in each of the debates and rules out alternative explanations for this divergence. It argues that the factor of time or European secularization cannot account for the current intensity-difference in each of these debates. The article concludes by proposing a path to launch the currently absent constitutional conversation over Islamic-based tensions in Western Europe. Modeled on abortion reform, constitutional courts should reach beyond proportional balancing and dictate policy frameworks addressing both the roots of Muslim disadvantages and the anxieties of the European public.

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Mooney on the Hajj and Reasonable Accommodation Under Title VII

Matthew P. Mooney (Student at Duke U. School of Law) has posted Between a Stone and a Hard Place: How the Hajj Can Restore the Spirit of Reasonable Accommodation to Title VII. The abstract follows.

Although section 701(j) of the Civil Rights Act of 1964 requires that employers reasonably accommodate their employees’ religious practices and beliefs, many commentators acknowledge that the spirit of reasonable accommodation has not been realized because courts have drastically limited the scope of employers’ duty. This may be especially true for Muslims, who, according to a 2012 study, are roughly half as likely to prevail in free-exercise and religious-accommodation lawsuits as are non-Muslim claimants. One of the central tenets of Islam, the hajj, poses significant challenges for Muslim employees seeking accommodation under Title VII. Because accommodating the hajj will almost always impose more than a de minimis cost on employers, a court is unlikely to find that Title VII requires employers to accommodate a Muslim employee’s decision to complete the pilgrimage.

This Note attempts to articulate a new method for expanding Title VII’s protection of employees’ religious beliefs and practices. Specifically, this Note argues that increased involvement by the Equal Employment Opportunity Commission and the Department of Justice in hajj-accommodation cases offers a promising approach to developing a more balanced accommodation doctrine, or at least to  realigning the scales so that they are not tilted so heavily in favor of employers. Despite clear precedent limiting an employer’s duty to accommodate, increased intervention by the federal government in Title VII hajj-accommodation cases has the potential to shift the conception of reasonable accommodation. Though the government must pick and choose the cases in which to intervene, hajj-accommodation cases present an opportunity to further the dual purposes of the government’s Title VII enforcement authority to implement the public interest as well as to bring about more effective enforcement of private rights. Intervention can restore the spirit of accommodation to section 701(j) and give employers more of an incentive to accommodate their employees’ religious obligations.

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Clark on What Legal Teachers Can Learn From Preachers

Sherman J. Clark (U. of Mich. Law School) has posted To Teach and Persuade. The abstract follows.

Legal speech and religious speech inevitably do some of the same work. Both are vehicles through which we both talk about and become the kind of people we are. Granted, those of us who teach and argue about the law do not often conceive of our work in this way. That is part of what I hope to begin to remedy in this essay. While the construction of character is a more obvious aspect of religious than legal thought, law, including legal argument, can be constitutive in similar ways. If so–if our ways of talking about the law serve some of the same ends as do our ways of talking about religion–then we may be able to learn how better to talk about the law by thinking about how we talk about religion. I do not mean things like paragraph structure or argument organization or the proper use of headings, but rather something more subtle and more fundamental. One way to put it is this: legal speech can learn from religious speech how to be less small, and perhaps more ennobling.
More specifically, those of us who speak and teach about the law may be able to learn from religious ways of speaking and preaching how better to Read more