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Annicchino & Marzouki on Emotions, Politics and Religious Freedom in US Mosque Controversies

Pasquale Annicchino and Nadia Marzouki (both at the European University Institute – Robert Schuman Centre for Advanced Studies) have posted Mosques Controversies in the United States: Emotions, Politics and the Right to Religious Freedom. The abstract follows.

In the last decade the number of mosques in the United States has considerably grown from 1209 to 1925. As shown by sociologist Akbar Ahmed, there is an important diversity among American mosques, in terms of size, ethnic background, theological teaching, proselytizing strategy. While most mosques and Islamic centres are built without encountering any opposition from local community, a few controversies have recently attracted a lot of media and public opinion attention. Rather than an exhaustive survey of all the mosque debates, this article analyses the most important specific type of arguments that were made by participants in such controversies. In particular, it examines the extent to which the relevance and the legitimacy of the liberal language of rights seems challenged by a growing part of the American public, that puts forward notions of appropriateness, sensitivity, and nationalism.

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Osanloo on Gender, Honor, and Compensation in Iranian Criminal Sanctioning

Arzoo Osanloo (U. of Washington) has posted When Blood Has Spilled: Gender, Honor, and Compensation in Iranian Criminal Sanctioning. The abstract follows. NB: The full article is behind a pay wall.

This article explores the gender implications of retributive punishment in Iran’s criminal justice system with specific attention to the Islamic mandate of forgiveness. Iranian penal codes allow victims’ families to forgive an offender through forbearance of their right of retribution. To mitigate or even cancel the retributive component of punishment in numerous crimes, including murder, defendants usually offer compensation. Through a study of the gendered logics of criminal sanctioning, forbearance, and compensation, this article brings to light some of the issues victims’ families and defendants face. In doing so, this article explores the debates around one of the formal gender gaps in Iranian laws, unequal compensation in sanctioning, where the amount of reparation for the loss a woman’s life is legally half that of a man’s. Because of this, some accounts of Islamic criminal processes suggest that female family members are helpless victims or nonactors in legal negotiations. By studying how gendered social relations operate in Iran’s criminal legal process, this article finds women playing key roles in family decisions to forgive or not. The examination of judicial processes, moreover, reveals some of the complexity of gender relations, which are not fixed, as static legal texts might suggest.

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Jolly on State Photo Identification Standards and Religious Freedom

Rajdeep Singh Jolly (The Sikh Coalition) has posted How State Photo Identification Standards Can Be Used to Undermine Religious Freedom. The abstract follows.

The purpose of this essay is to highlight a latent threat to religious freedom in the post-9/11 environment. In the absence of state laws that track the language of the Religious Freedom Restoration Act of 1993, state legislatures motivated by anti-Muslim bias can harm religious minorities by enacting facially neutral and generally applicable laws that forbid headcoverings in driver license photographs. If such laws are enacted, individuals who wear religious headcoverings can be forced to choose between religious freedom and valid identification cards, without which travel and economic transactions become exceedingly difficult. As a safeguard against this deprivation of religious freedom, this essay argues for more robust civil rights protections at all levels of American government, including stronger federal regulations and wider adoption of state versions of the Religious Freedom Restoration Act.

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Quraishi-Landes on What American Judges Do with Islamic Family Law in Their Courtrooms

Asifa Quraishi-Landes (U. of Wisconsin Law School) has posted Rumors of the Sharia Threat Are Greatly Exaggerated: What American Judges Really Do with Islamic Family Law in Their Courtrooms. The abstract follows.

American rule of law has always considered issues of accommodations of religious minorities seeking to follow rules that differ from American secular legal norms. In other words, Sharia is by no means the first religious law to be presented in American courts. Two centuries of case law involving religious-based requests from American Catholics, Jews, Mormons, Native Americans, and others has resulted in several established policies and practices that American judges use to adjudicate requests for consideration of religious law. In short, requests for consideration of religious law are balanced with constitutional and legislative principles, using judicial tools such as comity, public policy, and unconscionability. Because many Americans are unaware of this established practice, the anti-Sharia campaign has been able to create a concern that judicial consideration of Sharia-based claims from Muslim American litigants is compromising American law and values. The case law, however, shows a different picture. Judicial treatment of Sharia requests is not threatening the American rule of law, it is an illustration of it. As with requests from other American religious groups, sometimes Sharia requests win, and sometimes they don’t. Reasonable minds differ over whether the courts get it right each time. But in every case, the job of the judge is a careful balancing of rights against each other, not an automatic trumping of religious practice by secular law or vice versa.

The campaign to ban Sharia in the United States appears to be directed at two different alleged threats: (1) that Sharia will take over American law, and (2) that judicial accommodation of Muslim religious practices is eroding our secular rule of law. The first is a non-issue: there is no real chance that Sharia will replace American law or our Constitution. But the second is worth talking about. It asks a question crucial to the nature of our secular constitutional democracy: Can we legally accommodate a diversity of religious legal practices among our citizens and, if so, with what limits? I will address one aspect of this question by summarizing in Part II how Islamic family law is currently accommodated in American courtrooms today and discussing in Part III why this does not threaten women’s rights or our American rule of law. In Part IV, I consider the global and domestic implications of Muslim American tribunals serving the dispute resolution needs of American Muslims. Part V concludes.

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Carpenter on Limiting and Empowering American Indian Religious Freedoms

Kristen A. Carpenter (U. of Colorado Law School) has posted Limiting Principles and Empowering Practices in American Indian Religious Freedoms. The abstract follows.

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress’s subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations.

Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts—namely Congress’s decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level—that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.

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Hamoudi on Religious Minorities and Shari’a in Iraqi Courts

Haider Ala Hamoudi (University of Pittsburgh Law) has posted Religious Minorities and Shari’a in Iraqi Courts. The abstract follows.

There is a rising interest in our academy in the study of constitutional states, particularly in the Islamic world, whose legal and constitutional structure is at least as a formal matter both founded on and subject to religious doctrine. For those of us interested in the Arab spring, and indeed in constitutionalism in much of the Islamic world, this work is not only valuable, but positively vital. Without it, we are unable to discuss most emerging Arab democracies in constitutional terms. In Iraq, and in Egypt after it, two of the premier Arab states which have recently seen constitutions approved through popular referendum, Islam is described as state religion, as source of legislation and as constraint upon law as well. Nobody reasonably aware of the region imagines that Libya and Syria (were the latter to develop into a democratic state) would reach a different conclusion respecting the role of Islam in the public order. While the details may well differ from one state to another, the principle of “constitutional theocracy” holds fast throughout much of the Arab world. The effect of this on religious minorities that are not Muslim is the subject of this essay, with particular reference to the one Arab state with which I am most familiar, that of Iraq.

In assessing how rising constitutional theocracies like Iraq happen to balance the priorities they afford Islam in foundational text with religious freedom, a value also invariably enshrined in the constitutions of emerging democracies in the Middle East, it is important to note that the going opinion is very much in favor of some form of protection for and tolerance of non-Muslim minorities. It is also important to note that in assessing any conflicts with shari’a, there is a great deal of nuance, indeed near Read more

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Levis on Changes in the Church of England from 1660-1760

The Oxford Journal of Church and State has posted The Pragmatic Pulpit: Politics and Changes in Preaching Styles in the Church of England, 1660–1760 by R. Barry Levis (Rollins College).  An extract of the piece follows.

Victorian evangelicals and Tractarians shared a negative assessment of the eighteenth-century church. E. B. Pusey, for instance, saw the deficiencies of his contemporary church stretching back to the previous century. Pusey, as well as the other Tractarians, maintained that the eighteenth-century church had “suffered deeply, both in lukewarmness of life and degeneracy of faith, until the horrors of the French Revolution awoke us as out of a death-sleep.” In another context, he noted with disdain that “the eighteenth century was comparatively a stagnant period of the Church,—in England, owing to the violent revolution, whereby so many of her best members, the Non-juring Clergy, were ejected, and that, at one time, the State set itself to corrupt and degrade her, and her writers looked for strength in foreign alliances;—abroad, through the development of the principles of the ultra-reformation, and the influence of degraded England and corrupted France.” Instead, Pusey looked with particular nostalgia toward the seventeenth-century divines.

Many in the eighteenth century would have concurred with this judgment that the Church of England suffered from decay in both discipline and doctrine. Fiction writers portrayed its clergy as incompetent buffoons. Henry Fielding famously depicted Parson Trulliber in Joseph Andrews as more at home in the pig sty, “but two steps from his parlour-window,” than the pulpit. Trulliber had a special gift to arouse female members of his congregation with his preaching. One overly stimulated congregant who “to say the truth, the parson had exercised her ways than one; … , resolved to receive the bad things of this world together with the good.” Jane Austen painted an obsequious Mr. Collins in Pride and Prejudice. Likewise, William Hogarth produced several satirical etchings skewering the clergy.

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Vega on Making Corporate Whistleblowing Moral in the New Era of Dodd-Frank

Matt A. Vega (Thomas Goode Jones School of Law, Faulkner U.) has posted Beyond Incentives: Making Corporate Whistleblowing Moral in the New Era of Dodd-Frank Act “Bounty Hunting”. The abstract follows.

If you can imagine Wall Street as the American Old West and the Securities and Exchange Commission (“SEC”) as the local sheriff, then the SEC’s new bounty program is the equivalent of nailing up reward signs all over town that read: “Wanted: Dead or Alive.”  The agency is looking for information regarding publicly traded companies, financial services institutions, and other covered entities who may have violated U.S. securities laws, and it is willing, more than ever, to pay a premium for the information.

On July 21, 2010, President Obama signed into law the Dodd-Frank Act that, among other things, amends the Securities Exchange Act of 1934 by adding Section 21F “Securities Whistleblower Incentives and Protection.”  This obscure and little debated section offers whistleblowers multi-million dollar “bounties” for reporting suspected securities law violations directly to the SEC.  Under the program, which went into effect last year, the SEC is required to pay as a bounty to whistleblowers who voluntarily provide the agency with “original information” an amount equal to 10% to 30% of any monetary sanctions exceeding $1 million dollars.  When the average SEC settlement is over $18.3 million dollars, whistleblowers can expect the average bounty to be well in the range of $2 million to $5 million dollars.

This new program is fundamentally flawed because it attempts to combat corporate opportunism by encouraging employee opportunism.  To solve systemic problems like securities fraud and foreign bribery, the SEC needs to look beyond financial incentives.  It needs to take a step back and consider the basic moral principles of mutual self-interest and subsidiarity. These normative arguments were sorely missing in the debates leading up to the final rules implementing the bounty program.  These principles make clear that what is missing from Congress’s latest effort is mandatory internal reporting.

This Article endorses the Whistleblower Improvement Act of 2011, H.R. 2483, which was introduced by Congressman Michael Grimm in the first session of the 112th Congress and would require internal reporting as a condition for money benefits under the SEC’s new bounty program.  This amendment is needed not just to make corporate compliance programs work in the new era of SEC bounty hunting, but to make whistleblowing morally upright.

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Mohammedi on Sharia-Compliant Wills

Omar T. Mohammedi (Fordham U. School of Law) has posted Sharia-Compliant Wills: Principles, Recognition, and Enforcement. The abstract follows.

Remembrance of death and the afterlife is a cornerstone of the Islamic ethos. Planning for death by ensuring a distribution of one’s estate in accordance with Islamic Sharia law is obligatory upon all Muslims wishing to comply with their religious obligations. Thus, when it comes to inheritance, many Muslims living in the United States must make the necessary arrangements to ensure that their legacy will pass under the precepts of Sharia law while also maintaining compliance with state law. As Muslim populations across the United States continue to expand, practitioners in the field will face new, interesting dilemmas and challenges. Due to its complexity and differences with the established legal theories of intestacy laws in the United States, Islamic inheritance law proves to be an engaging and important subject.

In ensuring that Sharia-compliant wills that are also in line with state law, practitioners will likely face certain challenges. This article seeks to identify and address such challenges. There are three major areas where these challenges come to the forefront: basic conflicts between U.S. intestacy laws and Islamic inheritance laws; conflicts with the Establishment Clause of the First Amendment of the U.S. Constitution; and potential public policy conflicts arising from the enforcement of certain interpretations of Sharia law.

First, this article will provide an overview of Islamic inheritance laws. It will then compare such laws with U.S. intestacy laws and subsequently discuss how the two might be synthesized and reconciled to satisfy both bodies of law. This article then presents recommendations on how the aforementioned conflicts may be addressed to comply with both Sharia and U.S. law while avoiding Establishment Clause issues. Finally, this article hopes to demonstrate the extent to which a Sharia-compliant may be enforceable in U.S. courts.

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Ten Napel on An Alternative Approach to Limiting Government Religious Displays in the Public Workplace

Hans-Martien Ten Napel (Leiden Law School) has posted Beyond Lautsi: An Alternative Approach to Limiting the Government’s Ability to Display Religious Symbols in the Public Workplace. The abstract follows.

One of the central ideas underlying the chapter is that the questions regarding the limits of the government’s ability to display religious symbols in the public sphere, and how judges should deal with the manifestation by citizens of religious symbols in public institutions, are closely interrelated.

First, the Chamber and Grand Chamber judgments in the Lautsi case and several related cases in the Italian context will be discussed. Next, two prototypical reactions will be described: one (Mancini’s) agreeing with the Chamber judgment; the other (Weiler’s) agreeing with the Grand Chamber judgment. Finally, after a brief comparison with U.S. case law, an alternative approach inspired by the concept of positive secularism is sketched as a possible way out of this deadlock. This concept has recently been defended in the report of The Consultation Commission on Accommodation Practices Related to Cultural Differences (CCPARDC), which was responsible for analyzing the challenges posed by a new migratory situation in Québec, Canada, among others. The chapter ends with a conclusion.