Posted on by

Corbin on The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

Caroline Mala Corbin (U. of Miami School of Law) has posted The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Although Corbin addressed this issue last year, this updated article includes Corbin’s reflections post-decision. The abstract follows.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost. In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have.

Posted on by Mark Movsesian

Thames on Making Religious Freedom a Priority in Europe

Knox Thames (US Commission on International Religious Freedom) has posted a new paper, Making Freedom of Religion or Belief a True EU Priority, the latest in a series of working papers from the ReligioWest Project at the European Union Institute in Florence. Here’s the abstract:

The Council of the European Union recently released its Strategic Framework on Human Rights and Democracy, which included freedom of religion or belief in a list of 36 desired outcomes. The timing is good, as countries around the world are grappling with religion/state questions and the role of religious freedom for minority religious communities and dissenting members of the majority faith. Freedom of religion or belief stands at the crux of these issues, yet the Strategic Framework risks losing the religious freedom among the list of other worthy issues. By learning from the experience of the United States in its decade of religious freedom work, the European Union can jump start its efforts and ensure they have impact during this time of global transition.

Posted on by

Adida, Laitin & Valfort on Muslims in France

Claire L. Adida (University of California, San Diego), David Laitin (Stanford University) and Marie-Anne Valfort (Université Paris I Panthéon-Sorbonne) have posted Muslims in France: Identifying a Discriminatory Equilibrium. The abstract follows.

Evidence about the assimilation patterns of Muslim immigrants in Western countries is inconclusive because current research fails to isolate the effect of religion from that of typical confounds, such as race, ethnicity or nationality. A unique identification strategy allows us to isolate the effect of religion. Survey data collected in France in 2009 indicate that Muslim immigrants assimilate less than do their Christian counterparts, and that this difference does not decrease with the time immigrants spend in France. Experimental games reveal that the persistence of Muslims’ lower assimilation is consistent with Muslims and rooted French being locked in a bad equilibrium whereby: (i) rooted French exhibit taste-based discrimination against those they are able to identify as Muslims; (ii) Muslims trust rooted French and French institutions less than do Christians.

Posted on by Mark Movsesian

Wright on the Benefits of Religious Persecution

The observation that persecution, paradoxically, can confer benefits on a religion is not a new one. “The blood of the martyrs is the seed of the Church,” Tertullian wrote in the second century. It’s not an old one, either. Just yesterday, in fact, Judge Richard Posner made the point in his dissent in the Wisconsin high school graduation case, noted here. And, on SSRN, R. George Wright (Indiana University Robert H. McKinney School of Law) has posted an article, A Cost-Benefit Analysis of Religious Persecution: Casting Up a Dread Balance Sheet, arguing that persecution often confers “judicially cognizable benefits” on victims.  The abstract follows.

This Article notes that it is currently a matter of public controversy whether some forms of persecution based on religion are increasing or decreasing in the United States. This question itself is not subject to reasoned, consensual resolution. But a related and extremely important point remains to be made. Specifically, alongside the obvious costs of any persecution based on religion, many instances of alleged or actual religious persecution confer immense, judicially cognizable benefits, from the standpoint of many of the victims themselves, on many parties, including those victims. It can be entirely legitimate for legislatures, agencies, and courts to take such immense benefits to the victims into account in adopting policies or adjudicating claims about such government policies.

Posted on by Mark Movsesian

McCrudden on Religion and Human Rights

Christopher McCrudden (Queen’s University Belfast/University of Michigan) has posted a very interesting looking piece on religion and human rights, Catholicism, Human Rights and the Public Sphere. Here’s the abstract:

This article suggests that the scope and meaning of human rights, and its relationship to religion, is anything but settled, and that this gives an opportunity to those who support a role for religion in public life to intervene. Such intervention should address four main issues. First, it should ensure that judges engage in attempting to understand religious issues from a cognitively internal viewpoint. Secondly, it should articulate a justification for freedom of religion that fully captures the core of the significance of religious belief, and the importance of the religious principles in the public sphere. Thirdly, it should ensure engagement and dialogue between the churches and others on the meaning of human dignity, given its centrality to religious and secular perspectives on rights. Lastly, the churches should consider more carefully what it means to give ‘public reasons’ in the political and cultural context, and how it can engage in the process of ‘public reasoning’ regarding human rights.

Posted on by

Adolphe on New Challenges for Catholic NGOs in Light of Caritas in Veritate

Jane Adolphe (Ave Maria School of Law) has posted New Challenges for Catholic-Inspired NGOs in Light of Caritas in Veritate. The abstract follows.

The non-governmental organization (NGO) is perceived not only as a disseminator of information, monitor of human rights, or provider of services, but also as a shaper of national, regional, and international policy. Many members of the lay faithful, working with others from various Christian denominations, have established NGOs to monitor and to promote the rights of the unborn, the natural family, and many other topics of common interest. These NGOs lobby at the national, regional, and international levels. This paper discusses the role of the Catholic-inspired NGO on the international level with reference to the thought of Pope Benedict XVI in his encyclical, Caritas in Veritate.

 

Posted on by

Berger on The Aesthetics of Religious Freedom

Benjamin L Berger (York U. Osgoode Hall Law School) has posted The Aesthetics of Religious Freedom. The abstract follows.

What influence might legal aesthetics have on the shape of religious freedom? Focusing on time and space as foundational elements of the perception of phenomena, this paper argues that these aesthetic intuitions are an under-examined and yet elemental component of what conditions and shapes religious freedom in liberal constitutional orders. If one takes law to be a cultural form, attention to these basic facets of legal perception is essential to understanding law’s encounter with religion. Drawing from a range of examples in the Canadian jurisprudence, this paper shows that legal approaches to religious diversity, multiculturalism, tolerance, and accommodation are all subject to and framed by these aesthetic intuitions. To wonder about the possibilities open to us for responding to religious diversity through the law requires recognizing and wrestling with the temporal and spatial aesthetics of religious freedom.

Posted on by · 1 Comment

Marshall & Nichol on Standing and the Establishment Clause

William P. Marshall (University of North Carolina School of Law) and Gene R. Nichol Jr. (University of North Carolina School of Law) have posted Not a Winn-Win: Misconstruing Standing and the Establishment Clause. The abstract follows.

In Arizona Christian School Tuition Organization v. Winn, the Supreme Court, in a 5-4 decision, held that state taxpayers did not have standing under the Establishment Clause to challenge a state tax program in which taxpayers were given dollar-for-dollar tax credits for their contributions to private, non-profit state tuition organizations (STOs) that had been set up specifically to accept these contributions and then use the donated funds for “scholarships to students attending private schools, including religious schools.” Implicitly rejecting intangible, wisdely-shared, “psychic” harms as a basis for standing, the Winn majority held that though taxpayers might have standing to contest legislative appropriations designed to aid religious enterprises as in Flast v. Cohen, they had no standing to challenge legislative tax credit programs intended for the same purpose because there is no “extract[ion] and spend[ing]” of tax money in aid of religion in the latter program.
Read more

Posted on by Mark Movsesian

Munir on Jihad

Muhammad Munir (International Islamic University Islamabad) has posted a new article, Who Can Declare Jihad: The Head of a Muslim State or a Jihadi Group or Groups Within a Muslim State?, on SSRN. The abstract follows.

Non-state Islamic actors are engaged in their war against the West, Muslim states, and in some cases against their own states. Among the propaganda campaign raised by these Jihadis for winning support of fellow Muslims is that jihad can be declared by any jihadi group within a Muslim state and there is no need for the head of such a Muslim state for such a declaration. How does Islamic law look at the complex relations between jihadis operating from within a Muslim state and whether the state might be blamed for their attacks and other activities outside such a state? This paper explains relationship between jihadi groups inside a Muslim state which has necessary military and political authority but which has not given any explicit permission to such groups to operate. It is concluded that classical Islamic law does not authorize the operations of jihadi groups without the permission of the Imam. In addition, under Islamic law such a state is responsible for the acts of jihadi groups operating from its territory.

 

Posted on by Mark Movsesian

March and Modirzadeh on the Islamic Law of War

Andrew March (Yale) and Naz Modirzadeh (Harvard) have posted Ambivalent Universalism? Jus ad bellum in Modern Islamic Legal Discourse, on SSRN. The abstract follows.

In this paper, we discuss the trajectory of modern Islamic legal discourse on jus ad bellum questions, challenging the ideas that the choice is between either a defensive or an aggressive jihad doctrine, and that declaring and waging war is regarded in Islamic law as properly a matter to be monopolized by legitimate state authorities.