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Hatzis on Anti-Discrimination Law and Clergy in the U.K.

Nicholas Hatzis (University of Oxford) has posted The Church-Clergy Relationship and Anti-Discrimination Law. The abstract follows.

Should antidiscrimination norms apply to the relationship between a religious group and its clergy? In Hosanna-Tabor Evangelical Lutheran Church v EEOC the US Supreme Court affirmed the existence of a “ministerial exception” which bars discrimination claims by ministers of religion against their church. In 2005 the House of Lords had reached the opposite conclusion, ruling, in Percy v Board of National Mission of the Church of Scotland, that the decision to dismiss an ordained minister was not a spiritual matter falling outside the scope of secular law. This article examines the constitutional foundations of the ministerial exception, argues that Percy ignored important aspects of church autonomy and suggests that courts should consider creating a narrowly tailored rule exempting decisions to appoint or remove clergy from the scope of anti-discrimination law.

 

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Galenkamp on Locke and Bayle on Religious Toleration

Marlies Galenkamp (Erasmus University Rotterdam) has posted Locke and Bayle on Religious Toleration.  The abstract follows.

In Western-European societies, two questions are currently at the centre of political debate. What is the scope and what are the limits of religious toleration? What is the proper role of the state with regard to religious issues? By addressing these two topics, Dutch constitutional law scholars commonly start from two presumptions. First of all, the presumption in favour of liberty (leading to a quite absolute interpretation of fundamental rights) and secondly, the doctrine of interpretative restraint by civil authorities with regard to religious matters. These presumptions are generally considered as uncontested axioms. It seems to me that both presumptions may be qualified, however. This will be done by elaborating on the views of two 17th-century scholars on religious toleration, the Englishman John Locke and the Frenchman Pierre Bayle. Interestingly, both formulated their insights during their exile in the Dutch Republic. It will turn out that the dominant interpretation of the presumptions rests on a too superficial reading of Locke and on a disregard of Bayle’s insights, respectively.

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Ahdar on Regulating Religious Coercion

Rex Ahdar  (U. of Otago, NZ) has posted Regulating Religious Coercion. The abstract follows (NB: article is behind a paywall).

This Article examines the nature and regulation of religious coercion. Direct religious coercion denotes situations where the government expressly applies sanctions to ensure conformity with religious goals. Indirect religious coercion describes situations where, although the state may not have intended to pressure citizens to comply with or participate in some religious activity, it nonetheless takes advantage of social, psychological or peer pressure that has the same conformity-inducing effect. Indirect religious coercion is a real problem for those who dissent from majoritarian religious practices. But an open-ended inquiry into it can, as critics point out, be a highly unpredictable and subjective exercise. On balance, the Article concludes that the concept does deserve recognition by the courts. The Article develops a modified indirect coercion test to guide judges in First Amendment cases. A two-step test is expounded to streamline the inquiry, identify the key criteria, and render the test more workable.

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Beschle on a Broad Free Exercise and a Narrow Definition of Religion

Donald L. Beschle  (John Marshall Law School) has posted Does a Broad Free Exercise Right Require a Narrow Definition of “Religion”? The introduction follows.

In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions. The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.

Reaction to Smith was largely negative, and legislative and state court responses followed, seeking to restore strict scrutiny as the appropriate standard when a free exercise exemption was denied. Smith was seen as an unfortunate decision reflecting insensitivity to the significance of the free exercise right. This article explores the possibility that Smith may have been less the result of that insensitivity than it was a response to the vast expansion of the concept of religion in constitutional law since the Court’s first free exercise decisions employing strict scrutiny. This expansion made the application of strict scrutiny, at least as it is normally understood, wildly impractical.

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Posted on by Mark Movsesian

Mautner on Excluding Women from Torah Study

One of the many things that worries secular liberals about the revival of religion — assuming a revival is really occurring — is the traditionalism of the religious worldview. Since the Enlightenment, liberalism has taught that the individual must be free to  determine for himself, without the interference of tradition or traditional authority,  the meaning of existence and his place in the universe (see, e.g., Planned Parenthood v. Casey). The religious worldview rejects this idea. The meaning of the universe is determined by God, and wisdom lies in discovering His plan and accepting the place He has assigned you in it. (Of course, religions differ on the details of the plan!) There are important qualifications, of course. Liberalism doesn’t think people should just do what they want, and traditionalism doesn’t think that everything must always remain the same. But much of the tension between secular liberals and religious conservatives can be traced to these different premises.

Menachem Mautner (Tel Aviv University – Buchman Faculty of Law) has posted an interesting-looking piece that explores this tension in the context of Jewish law, or, more precisely, the study of Jewish law: A Dialogue between a Liberal and an Ultra-Orthodox on the Exclusion of Women from Torah Study. Here’s the abstract:

This is a fictive dialogue between a liberal and an ultra-Orthodox on the exclusion of women from Torah study. The dialogue begins with a lengthy discussion of the highly intricate preliminary problems of understanding and normatively evaluating the practices of another culture. The Liberal argues that the exclusion of women from Torah study precludes them from fully realizing the intellectual potential that lies within them, i.e., it denies them reaching the height of their human flourishing. It also implies that ultra-Orthodox women are regarded as having lesser moral worth than men.

The ultra-Orthodox argues that whereas modernity is premised on the denial of any status bestowed by tradition in the life of a person, for the ultra-Orthodox tradition has a binding force: it embodies God’s imperatives as to the good life, together with the ways these imperatives have been interpreted throughout the generations by Halakhic sages. Torah study is a religious imperative (mitzvah) that under the accepted tradition is Read more

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Urscheler on Legal Traditions in Nepal

Lukas Heckendorn Urscheler (Swiss Institute of Comparative Law) has posted Innovation in a Hybrid System: The Example of Nepal. The abstract follows.

The Nepali legal tradition is a legal hybrid in many regards. Nepal was not colonised by a Western state, and the Hindu legal tradition therefore dominated all areas of law until the middle of the 20th century. Since the 1950s there has been a strong influence of Indian common law. It is probably for this reason that comparative classifications that include Nepal see the legal system as a mixture of common law and customary law. However, other mixtures mark the Nepali legal tradition. French law inspired the ruler in the 19th century, and that influence can still be found in the formal law. In addition, the plurality of Nepalese society made it necessary to provide space for different customary regimes to coexist with the formal Hindu law. When it comes to innovations within the legal system, including international law, the different ingredients interact.

In family-related matters, the case-law of the Nepali Supreme Court illustrates the confrontation between international legal standards and the traditional rules. The Supreme Court has referred to the culturally conditioned discrimination against women and called for a thorough (political) analysis in order to eliminate discrimination without a radical change of culture. In the area of discrimination against homo- and transsexuals the Supreme Court took a more innovative approach. It remains to be seen, however, if such a change is effective beyond the courtroom.

In the area of private financial compensation for wrongs, the formal (written) Nepali law does not have a general concept of tort. Compensation is generally integrated within the ambit of criminal law. Field research indicates that it would be possible to resort to existing customary principles of compensation rather than to the relatively complex common law of torts favoured by some Nepali scholars. However, this approach might not be without difficulty, as it might imply admitting the “superiority” of the customary practices of ethnic groups of lower standing in society.

The example of Nepal shows that innovation in a hybrid system is often marked by the difficulty of – at least apparently – contradictory elements and layers of the legal system. There might be a tendency towards choosing the dominant or the most easily accessible solution. This paper suggests that the hybrid nature of the legal system offers opportunities that could be taken in order to achieve effective change and appropriate solutions.

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Colombo on the Naked Private Square

Ronald J. Colombo  (Hofstra U. School of Law) has posted The Naked Private Square. The abstract follows.

In the latter half of the twentieth century, America witnessed the construction of a “wall of separation” between religion and the public square. What had once been commonplace (such as prayer in public schools, and religious symbols on public property) had suddenly become verboten. This phenomenon is well known and has been well studied.

Less well known (and less well studied) has been the parallel phenomenon of religion’s expulsion from the private square. Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.

Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.

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Sepper on Taking Conscience Seriously

Elizabeth Sepper (Washington U. School of Law) has posted Taking Conscience Seriously. The abstract follows.

For too long, the conventional account of morality in medicine has placed conscience firmly on one side of the moral divide. The archetypal doctor who refuses to participate in controversial treatments—most commonly end-of-life care, abortion, sterilization, and contraception—has been the lodestar of legislative efforts and scholarly accounts. In the name of institutional conscience, healthcare facilities have also been permitted to assert moral or religious objections to care and impose them on employees and affiliates of all beliefs and backgrounds. Doctors, nurses, and institutions that are willing to deliver controversial care have been virtually absent from discussions.

This Article aims to reframe the debate by taking conscience seriously. Through engagement with the moral philosophical literature, it makes two inter-related arguments. First, conscience equally may compel a doctor or nurse to deliver a controversial treatment to a patient in need. Yet legislation meant to protect conscience, paradoxically, has undermined the consciences of these doctors and nurses. Second, endowing healthcare institutions with conscience via legislation is theoretically and practically problematic. By privileging the institutions’ rights to refuse to provide certain treatments, legislation impinges on the rights of individual providers to provide care they feel obligated by conscience to deliver. Ultimately, if legislation is to protect conscience, it must negotiate between competing claims of conscience of health providers and the facilities in which they work—regardless of whether they refuse or are willing to provide controversial care. This Article introduces a new framework for achieving a better balance between the interests of institutions, individual doctors and nurses, and the patients who depend on them for care.

Posted on by Mark Movsesian

Ross on Mosaic Law in Early Protestant Jurisprudence

From the beginning, Christian jurisprudence has tried to distinguish the “moral” elements of the Mosaic Law, which continue to bind Christians, from the “ceremonial,” which do not. Richard Ross (University of Illinois) has written what looks to be a fascinating essay, Distinguishing Eternal from Transient Law: Natural Law and the Judicial Law of Moses,  on the efforts of Protestants in early modern Europe and New England to grapple with this distinction. He ties their work  to similar efforts by natural law theorists of the period to differentiate between eternal and merely local principles. The abstract follows.

This essay examines two interlinked efforts in early modern Europe and New England to distinguish legal provisions valid across different societies and time periods from those that were local and transitory and therefore not compulsory in the present. Consider, first, the judicial laws of Moses. A minority of Protestants, whom I will call the “Mosaic legalists,” tried to ascertain which Old Testament judicial ordinances were no longer obligatory because they were particular to the Jewish commonwealth, and which were eternally-valid “appendices” to the natural law and Decalogue. The challenge of differentiating the perpetual from the local also occupied early modern students of the law of nature. Whether one believed that God impressed natural law upon the world or that people deduced natural law Read more

Posted on by Marc O. DeGirolami

DeGirolami, “The Punishment Jurist”

I have a new paper, which is a chapter contribution for what will be a conceptual history of several foundational writings in criminal law and punishment.  It’s called, The Punishment Jurist, and deals with the thought of Sir James Fitzjames Stephen, a judge of the Victorian period.  The essay is more about criminal punishment than about law and religion, but there is a good bit about the latter as well.

In his major work of scholarship — the History of the Criminal Law of England (1883) — Stephen discusses (at the end of Volume II) the issue of “offenses against religion.”  And one of the matters he takes up is the crime of witchcraft.  I discuss his views of witchcraft and other offenses against religion to rebut the oft-heard and erroneous claim that Stephen believed the realms of morality and criminality to be co-extensive (notwithstanding his belief in the important connections between the two, and in turn between morality and religion), and the claim that Stephen is a punishment consequentialist full stop.

Comments are welcome.