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Donald on Advancing Debate about Religion or Belief, Equality and Human Rights

This month, the Oxford Journal of Law and Religion posted for advanced access Advancing Debate about Religion or Belief, Equality and Human Rights: Grounds for Optimism? By Alice Donald (Senior Research Fellow, Middlesex University School of Law).  The abstract follows.

Legal judgments concerning equality or human rights and religion or belief have frequently provoked controversy in Britain. This article examines why this has occurred. It does not attempt a detailed analysis of the case law; rather, it discusses how the law has been understood and invoked in public discourse. It argues that debate about religion or belief and its place in society has been unduly dominated by particular—and sometimes partial—understandings of legal judgments. It proposes that the most productive level of engagement for those who wish to advance debate, practice and understanding in relation to religion or belief is with ‘front line’ decision-makers, such as public servants and workplace managers. It ventures that in the long term an approach based on human rights principles is likely to be more satisfactory than one which is based principally on equality.

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Breda on Accommodation of Sharia Law in Italy

Vito Breda (Cardiff Law School & Australian National University) has posted Sharia Law in Catholic Italy: A Non-Agnostic Model of Accommodation. The abstract follows.

The Italian Constitution and its interpretation by the Constitutional Court have led to the development of a model of accommodation of religious practices that seeks to balance a commitment to promoting religious pluralism whilst, at the same time, maintaining the neutrality of state institutions. What is distinctive about this quasi-neutral constitutional stance is the commitment to reducing the discrepancies between the legal and religious effects of key life decisions (e.g. the decision to get married). I call this stance positive secularism. In this essay, I would like to show that, thus far, positive secularism has been particularly effective in accommodating the demands of Muslim immigrants (Pacini 2001). For instance, some aspects of the Sharia law, such as marriage (including some effects of polygamous marriage) and divorce (including some effects of unilateral divorce), are already recognized by Italian international private law. The second stage for the accommodation of Sharia law in Italy is likely to be the recognition of Islam as one of Italy’s official religions. Recognition will increase the level of the Islamic communities’ autonomy and will allow for the automatic recognition of some aspects of Sharia law. In February 2010, the Italian government established the Committee for Islam, composed of representatives of Italian Islamic communities, within the Ministry of Interior Affairs. In the recent past, these types of dialogues between institutions and religious representatives have been the proxy for the official recognition of nine faiths in Italy. Waldensian Evangelical Church, the World Assemblies of God Fellowship, the Evangelical Baptist Church, the Lutheran Baptist Church, the Apostolic Church, the Church of Jesus Christ of the Latter-Day Saints, the Adventist Church, the Greek Orthodox Archdiocese of Italy, Hebrew Communities of Italy. The chapter is divided into two sections, which is preceded by an introduction, and followed by a conclusion. The first section will discuss the judicial introduction of Sharia law via the procedure of Italian international law. The second section will explain the advantages of the recognition process and the reasons that have prevented Islamic communities from benefiting from it.

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Brownstein on the Religious Liberty of Religious Institutions

Alan E. Brownstein (University of California, Davis – School of Law) has posted Protecting the Religious Liberty of Religious Institutions. The abstract follows.

This article is a preliminary inquiry into the question of whether the freedom of the Church, as a distinct religious institution, can be justified from an American legal perspective. The first part of the article identifies respect for the individual dignity and autonomy of the person as a primary justification for providing distinctive legal protection to religious liberty. It goes on to discuss whether distinctive religious liberty protection for religious institutions can be derived from the dignitary interests of the institution’s members – and if so, whether there is some limit beyond which institutional religious liberty claims cannot be grounded in the individual dignitary interests of congregants or constituents.

The second and longer part of the Article examines whether an argument for protecting and accommodating the autonomy of religious institutions can be grounded in American history during the 1700’s and early 1800’s. The history of this period includes multiple cross currents of values and interests that very by time and region – making it difficult to reach more than tentative conclusions. However, the Protestant commitment by religious liberty proponents to the belief that each man must judge for himself on matters relating to religion, the virulent anti-Catholicism of the period, at least some of which may be attributed to fear of and antipathy toward top down ecclesiastical hierarchy, and the prevalence of anti-clerical attitudes suggest some limits to the American commitment to the freedom of the Church as an institution. Clearly, a sphere of religious liberty extended to the local congregation and to a considerable extent to democratically created and accountable ecclesiastical decision-making bodies. It may be argued, however, that Americans of this period viewed non-democratic, hierarchical religious institutional structures – that challenged the intrinsic right of individual conscience in matters of faith – to be much less deserving of respect and protection.

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Oleske on Lukumi Babalu Aye

James M. Oleske Jr. (Lewis & Clark Law School) has posted Lukumi at Twenty: A Legacy of Uncertainty for Religious Liberty and Animal Welfare Laws. The abstract follows.

Twenty years after the Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah, uncertainty reigns in the lower courts and among commentators over the issue of constitutionally compelled religious exemptions. Despite the Court’s general disavowal of such exemptions in Employment Division v. Smith, Lukumi appeared to breathe life into a potentially significant exception to Smith. That exception – which this Article calls the “selective-exemption rule” – provides that religious exemptions may still be required by the Free Exercise Clause when the government has selectively made available other exemptions to a law.

This Article addresses the key unresolved questions about the scope of the selective-exemption rule and challenges the received reading of the leading circuit court decision interpreting the rule. Relying heavily upon that reading, prominent religious liberty advocates have been pressing for a remarkably broad Read more

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Cohen-Almagor on Religious, Hateful, and Racist Speech in Israel

Raphael Cohen-Almagor (University of Hull) has posted Religious, Hateful, and Racist Speech in Israel. The abstract follows.

This essay is a study in politics and law. The first section of the paper explains Israel’s vulnerability as a Jewish, multicultural democracy in a hostile region, with significant schisms that divide the nation. Given Israel’s tenuous conditions, this paper is set to observe how Israel has coped with destabilizing expressions that aim to increase the rifts in society and to promote hatred against the other, whoever the other might be. This essay is largely concerned with Israel’s policy on hate speech and racial expressions as they have come into expression by religious authorities, and in that sense this study supplements similar studies conducted in the past. Those expressions have stemmed from the ideologically motivated religious authorities against two groups of people: those who aimed to give away parts of Israel’s territory, and Palestinian Arabs.

The paper presents the State Attorney’s stance regarding extreme statements made in the context of the disengagement from Gaza. Following that presentation, the paper continues by addressing the issue of religious incitement by Jewish and Moslem sages. What is suggested about fighting bigotry emanating from Jewish religious teaching is true also for hatred emanating from Islam. The argument is made that the State cannot sit idly by while senior officials incite racism and undermine the State’s democratic values. Such officials should be discharged of all responsibilities. The State ought to weigh the costs of allowing hate speech, as well as the risks involved, and balance these against the costs and risks to democracy and free speech associated with censorship. Israel needs to protect its citizens, both Jewish and non-Jewish, as well as to protect itself as a Jewish democracy. In doing so, Israel should not unnecessarily infringe on free expression or create discriminatory situations. It is not a small feat to achieve both. A balance needs to be struck between competing social interests. Freedom of expression is important as is the protection of vulnerable minorities.

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Strasser on the Establishment Clause

Mark Strasser (Capital University Law School) has posted The Endorsement Test is Alive and Well: A Cause for Celebration and Sorrow. The abstract follows.

The endorsement test, first explained by Justice O’Connor, provides one way to determine whether state action violates Establishment Clause guarantees. Now that Justice O’Connor has retired, there is some question whether the endorsement test will survive. Commentators’ claims to the contrary notwithstanding, however, there is no reason to think that the endorsement test retired along with Justice O’Connor, although a separate issue is whether those on the Court using the test will do more than give occasional lip service to the interests and perspectives of minority religious groups. At this point, the most likely scenario is that the Court will sometimes use the test, but will be unlikely to use it to strike down a particular practice. The article concludes that the test is likely to remain one of the tests used by the Court to determine whether Establishment Clause guarantees have been violated — the test will retain its potential to assure that individuals will not be treated as second-class citizens because of their religious beliefs but will in reality do little or nothing to take account of religious minorities’ sincere reactions to a variety of practices privileging some religions over others and privileging religion over non-religion.

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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) [158 downloads]

2. Queering Schools, GSAs and the Law: Taking on God, by Donn Short (U. of Manitoba Faculty of Law) [110 downloads]

3. Constitutionalism: East Asian Antecedents, by Tom Ginsburg (U. of Chicago Law School) [77 downloads] 

4. The Firearm and the ‘Culture of Death’: Foundational Presuppositions and Fundamental Questions, by Kevin P. Lee (Campbell U. Law School) [68 downloads]

5. The Causes and Cures of Unethical Business Practices – A Jewish Perspective, by Steven H. Resnicoff  (DePaul U. College of Law) [66 downloads]

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McCrea on The Veil Ban and European Law

Ronan McCrea (University College London) has posted The Ban on the Veil and European Law. The abstract follows. NB: The full text is behind a paywall.

This article argues that the fate of veil bans under European law is uncertain. It shows that European commitments to free speech and freedom of religion cannot accommodate an absolute ban justified solely on grounds of the offensiveness of the veil. However, a ban that applies to public face-covering in general (rather than a ban that only targets the veil), that relates to the specific (though admittedly broad) context of social life and that provides some exceptions allowing the veil to be worn in specific religious or expressive contexts, has a reasonable chance of being upheld by European courts despite the significant infringement of personal autonomy it would involve.

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Hill on Theism, Naturalism, and Liberalism

John Lawrence Hill (Indiana U., Robert H. McKinney School of Law) has posted Theism, Naturalism, and Liberalism: John Stuart Mill and the “Final Inexplicability” of the Self. The abstract follows.

The purpose of this essay is to explore what often is overlooked in political and constitutional discussions of the relationship between law and religion. Law and religion are not natural adversaries. They are thought to conflict today not simply because secular law must create a space for competing religious viewpoints. The source of the conflict runs much deeper. It is nothing if not metaphysical–a conflict of worldviews.

This essay explores the metaphysical conflicts between the religious and the secular-naturalist worldviews by examining the philosophy of John Stuart Mill. I chose Mill not only because he is arguably the most important liberal philosopher of all time, the thinker who transformed liberalism from the older, classical to the modern, progressive ideal, but because he also had a well-developed metaphysical conception of human nature which is so strikingly in tension with his political liberalism. Mill’s “harm principle,” developed in On Liberty, is the true philosophical source of the modern right of privacy. And his overarching justification for liberty as a means of self-individuation is the dominant idea of freedom today. Yet Mill was a deeply conflicted thinker–a utilitarian who was drawn to romanticism, a political libertarian and a metaphysical determinist, a naturalist who rejected God, soul, and self, who nevertheless made self-individuation the real animating justification for political liberty.

The contradictions within Mill’s thought are the contradictions of liberalism itself. They are ultimately our contradictions–and they derive from our own ambivalent attachments to theism and naturalism.

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Barzilai on Law, Politics, and the Adjudication of Religious Issues

Gad Barzilai (University of Washington – Henry M. Jackson School of International Studies) has posted Law is Politics. The abstract follows.

In his essay, “Law or Politics: Israeli Constitutional Adjudication as a Case Study,” Gideon Sapir is coping with some problems concerning adjudication of religious issues. He presumes that there is a certain dichotomy that differentiates “law” from “politics,” since the first deals with norms and the second with regulating and balancing political branches. Sapir’s article, in my opinion, proves that law is politics in a sense that law generates and embodies political and socioeconomic interests, identities, and consciousness. I argue below that politics cannot be differentiated from law, and therefore cannot respond to Sapir’s aspiration to de-politicize adjudication and to monitor and hamper the effects of personal backgrounds and worldviews on judicial rulings. I analyze some of Sapir’s findings and arguments from a critical perspective that law is politics.

The subject matter of religious justices in supreme courts are particularly relevant in countries where almost no institutional and constitutional separation between state and religion prevails. In countries like Israel that have not separated state from religion, and have used religion as part of state nationality and legal ideology, the background of the justices and their basic worldviews will most often be a reflection and articulation of interactions between religion, state power foci, and state ideology. The Israeli Jewish political elite has used Orthodox religion to legitimize the state, and hence has used the non-separation of nationality and religion embedded in Zionism, for political purposes.