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Pei on Burqa Bans and the European Court of Human Rights

Sally Pei (Yale University Law School) has posted Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights. The abstract follows.

Over the past decade, Europe has been the site of strident debates over integration and Islam. One major pole of controversy is the trend toward enacting legislation to prohibit Islamic veils from public places. Laws banning face coverings, already in force in France and Belgium, are under consideration in a number of European countries, including the Netherlands, Italy, and Switzerland. The laws raise fundamental questions about what it means to be French, Belgian, Dutch, or indeed European. But the bans are of special interest for another reason: They provide a likely testing ground for the nascent nondiscrimination jurisprudence of the European Court of Human Rights (“the Court”), and a potential opportunity to bolster legal safeguards against discrimination at the regional level.

The laws might seem to invite an obvious challenge on the grounds that they deny the right to religious freedom guaranteed by Article 9 of the European Convention. But previous cases addressing restrictions on religious dress have sharply narrowed that avenue for redress. This Comment argues, however, that Article 14 nondiscrimination claims can fill that void. The Court’s Article 14 jurisprudence has long been criticized for its limited scope and application, but a recent line of cases in the education context evinces the emergence of a new doctrinal approach to discrimination. Properly applied and reinforced, that case law could mature into a general analytical framework for addressing the claims likely to arise from anti-burqa legislation and other discriminatory measures.

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Bridge on State Enactment of Religious Freedom Restoration Act Laws

Last week, Oxford Journal of Church and State posted for advanced access Religious Freedom or Libertarianism: What Explains State Enactments of Religious Freedom Restoration Act Laws? by Dave Bridge (Baylor University).  An extract of the piece follows.

In 2002, officer Rex Shrum submitted his letter of resignation to the Coweta, Oklahoma, police department. Also a Church of Christ minister, Shrum quit the force after twelve years when his superiors would no longer accommodate his need to have Sunday mornings off. Invoking the Oklahoma Religious Freedom Act, Shrum sued, claiming that the city officials had denied him his right to free exercise. The jury sided with the minister, awarding Shrum a total of $235, 000 for religious freedom claims. Even though the Supreme Court had already struck down the federal Religious Freedom Restoration Act (RFRA) in City of Boerne, Texas v. Flores, Shrum had brought suit under Oklahoma’s state-level Religious Freedom Act. This essay looks at state-level RFRAs and assesses their determinants. What factors are associated with states that pass RFRAs? More importantly, what do these factors tell us about (1) broader trends in American politics and (2) the RFRAs themselves?

State RFRAs are significant because they occupy a unique place in American public policy and ideology. At the policy level, they provide concrete laws for the execution of the loftier ideal of free exercise. RFRAs give citizens a clear foundation for making free exercise violation claims against the state. Even though the US Constitution and state constitutions may have language promoting free exercise, state RFRAs provide a strong indicator that their respective states will take steps to ensure religious freedom. Practically, they provide easier access to the courts for free exercise claimants and lay out a stricter standard for state action. The impact of Oklahoma’s law, for example, can be seen above, as Shrum used the Oklahoma RFRA to pursue his case.

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Beaman on Is Religious Freedom Impossible in Canada?

Lori G. Beaman (U. of Ottawa) has posted Is Religious Freedom Impossible in Canada? The abstract follows.

The idea of religious freedom is not new in Canadian law or wider public discourse, although it has taken on a life of its own in the post-Charter era (1982 onward) and certainly in the last several years. As the courts wade more fully into the swirling abyss that is religion they find themselves struggling with the issues that preoccupy scholars of religion (and for which they have found no conclusive answer): what is “religion” and how can it be defined in a manner that is inclusive and meaningful? This article takes as its point of departure the provocative and compelling argument made by Winnifred Sullivan in her book, The Impossibility of Religious Freedom (2005), that religious freedom as a legal promise is untenable. In this article I argue that while plausible and convincing in the context of the United States, Sullivan’s thesis may be less applicable in Canada for three key reasons. First, the embeddedness of Roman Catholicism in Canadian social structure has resulted in a textured and nuanced understanding of religion, or, at the very least, a recognition that religion is in some measure a multifaceted notion. Secondly, the recognition of group rights, however defined, means that there is a space created for alternative religious discourses, in part because of the constitutional recognition of multiculturalism. Thirdly, the recent turn by the Supreme Court of Canada to an understanding of the subjectivity of religious freedom strengthens the idea that religion must be conceptualized in relation to the ways in which individuals understand and practice it in their day to day lives.

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Stopler on Religious Establishment, Pluralism and Equality in Israel

Gila Stopler (NYU School of Law) has posted Religious Establishment, Pluralism and Equality in Israel—Can the Circle be Squared? The abstract follows.

Israel’s constitutional structure purports to combine strong establishment of the Orthodox Jewish religion in the state with respect for liberal values such as pluralism equality and liberty. Whereas the establishment of the Orthodox Jewish religion is achieved through laws regulations and administrative power, liberal values that are only partially enshrined in law, are mostly defended and articulated by the Israeli Supreme Court. Focusing on the internal conflicts within the Jewish majority the article will show how the power granted to the Orthodox Jewish religion by the state has been used to circumvent liberal values and will examine the role of the Israeli Supreme Court in ameliorating this problem. It will argue that although in countries in which religion and the state are separated a ‘hands-off’ approach to pluralism may be sufficient to protect liberal values, in a country such as Israel with a strong religious establishment a more activist approach, which will be termed ‘egalitarian pluralism’ is required. The article will argue that an egalitarian pluralist approach is needed in order to maintain Israel’s dual commitment to its nature as a ‘Jewish and Democratic’ state and will assess and critique the partial implementation of this approach by the Israeli Supreme Court.

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Strasser on Hosanna-Tabor, the Ministerial Exception, and the Constitution

Mark Strasser (Capital University Law School) has posted Making the Anomalous Even More Anomalous: On Hosanna-Tabor, the Ministerial Exception, and the Constitution. The abstract follows.

In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the lower courts and to greater inconsistency in the judgments issued when religious employees have allegedly been subjected to prohibited discriminatory practices. Further, by mischaracterizing the past jurisprudence, the Hosanna-Tabor Court has muddled what was previously fairly clear, and thus will not only have put a wide range of religious employees at risk but will have made the Religion Clauses jurisprudence more generally even less understandable.

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Izunwa & Ifemeje on Right to Life, Abortion and the Principle of Double-Effect

Maurice Okechukwu Izunwa and Sylvia Ifemeje (both from Nnamdi Azikiwe U., Awka) has posted Right to Life and Abortion Debate in Nigeria: A Case for the Legislation of the Principle of Double-Effect. The abstract follows.

The controversy as to whether abortion on demand will be legalized in Nigeria has been long and protracted. This is not unconnected with the fact that the issues that border on life are always sensitive for society and all the more for the legislature and the Courts. Notwithstanding the comparatively conservative status of law on abortion in Nigeria, arguments from differential fields of knowledge relating to the amendment of the law as it is, are far reaching. A great many insist that all forms of willful abortion should be criminalized. In this school of thought, we find the Catholic Church at the baseline. Nevertheless, the leftist pro-choice school defends the opinion that it is only fair and just that a woman should be left to decide in such a grave matter about her life and health. This essay makes an ethical detour in differential arguments as a necessary prerequisite for the much needed legal mediation of the rival camps. It proposes the legislation of the “principle of double effect” as the legal middle course.

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Moon on Christianity, Multiculturalism, and National Identity

Richard Moon (University of Windsor Law) has posted Christianity, Multiculturalism, and National Identity: A Canadian Comment on Lautsi v. Italy. The abstract follows.

The Lautsi decision reflects the deep ambivalence in Western liberal democracies about religion and its relationship to politics. Like the Canadian courts, the European Court of Human Rights (ECtHR) seems to recognize that religion and politics should be separated but that this separation can never be total. While the ECtHR and the Supreme Court of Canada rely at least formally on a similar test for determining a breach of religious freedom (a test that emphasizes the state’s obligation to remain neutral in spiritual matters) their application of the test is guided by different understandings of the public/political significance of religion and more particularly the relationship between religion, civic values, and national identity. The Court in Lautsi seems to accept, or at least acquiesce in, two claims made by the Italian government about the meaning of the crucifix: that it symbolizes the Italian national identity, which is tied to its history as a Christian or Roman Catholic nation, and that it symbolizes the Christian foundation of the civic/secular values of the Italian political community – the values of democracy and tolerance. Behind the claim that the crucifix is not simply a religious symbol but also a symbol of the Italian identity and political culture, is the draw of a thicker or richer form of national identity than that offered by civic nationalism. The assumption is that Italians are held together in a political community not simply by their shared commitment to liberal values or democratic institutions but by a common culture rooted in a religious tradition. Religion and politics are joined at the core of national identity and the root of political obligation. This link between religion and politics, though, rests on the problematic claim that the values of democracy and tolerance emerged directly from Christianity (and are the logical, even necessary, outcome of Christian doctrine) and the disturbing claim that Christianity is uniquely tied to these values. While religion does sometimes intersect with politics in Canada, it no longer plays a role in the definition of the country’s national identity. Canada, sometime ago, embraced multiculturalism as the defining feature of its national identity and liberal-democratic values as its political bond. There is no doubt that Canada’s moral/social culture has been shaped in different ways by the Christian faith of earlier generations, nevertheless any attempt to formally link Canadian national identity to a particular religious tradition would run against the country’s self-conception as a multicultural (multi-faith) society.

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Kwall on Jewish Tradition as Intellectual Property

Roberta Rosenthal Kwall (DePaul University College of Law) has posted Is the Jewish Tradition Intellectual Property?  The abstract follows.

Whether works of authorship should be protected from unauthorized changes and, if so, in what manner, are questions of endless fascination to intellectual property scholars. Jewish law is not typically considered a “work of authorship” although in many ways it can be so viewed. This article is concerned with exploring the Jewish tradition as intellectual or cultural property. It focuses on the human dimension of creativity embodied in the Jewish tradition, and how that dimension is manifested in the rabbinic interpretation of Jewish law. The resulting tradition — as it is embodied in both the Jewish texts and lived by the people — has afforded the Jewish people their unique identity throughout the ages. Simply put, the Jewish tradition is a very unique form of cultural property. This analytical framework has significant implications for how to negotiate the balance between preservation and development of the tradition.

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Leeson on The Law and Economics of Monastic Malediction

Peter T. Leeson (George Mason U.) has posted “God Damn”: The Law and Economics of Monastic Malediction. The abstract follows.

Today monks are known for turning the other cheek, honoring saints, and blessing humanity with brotherly love. But for centuries they were known equally for fulminating their foes, humiliating saints, and casting calamitous curses at persons who crossed them. Clerics called these curses “maledictions.” This article argues that medieval communities of monks and canons used maledictions to protect their property against predators where government and physical self-help were unavailable to them. To explain how they did this I develop a theory of cursing with rational agents. I show that curses capable of improving property protection when cursors and their targets are rational must satisfy three conditions. They must be grounded in targets’ existing beliefs, monopolized by cursors, and unfalsifiable. Malediction satisfied these conditions, making it an effective institutional substitute for conventional institutions of clerical property protection.

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Laborde on Equal liberty, Non-Establishment, and Religion

Cecile Laborde (University College London) has posted Equal Liberty, Non-Establishment, and Religion. The abstract follows.

Egalitarian theories of religious freedom deny that religion is entitled to special treatment in law, above and beyond that granted to comparable beliefs and practices. The most detailed and influential defense of such an approach is Christopher Eisgruber and Lawrence Sager’s Religious Freedom and the Constitution (2007). In this essay, I develop, elucidate, and show the limits of the reductionist strategy adopted by Eisgruber and Sager. The strategy requires that religion be analogised with other beliefs and practices, according to a robust metric of comparison. I argue that Eisgruber and Sager fail to develop a consistent and coherent metric, and I further suggest that this failure is symptomatic of the broader difficulty encountered by liberal theory in fitting the concept of religious freedom into a broadly egalitarian framework.