Posted on by Mark Movsesian

Tuck on LGBT Equality

Ryan Tuck has posted Parting the Red Sea: The Religious Case for LGBT Equality, on SSRN. The abstract follows.

Much of the LGBT legal equality movement has focused on non-religious arguments. While that has netted gains in a purely legal sense, the broader – and more desirable – goal of social equality will remain elusive if the LGBT movement does not turn the religious argument around. In other words, LGBT proponents need to understand how to utilize religion to forward their causes, rather than ignore how opponents use it on the other side.

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Tsitselikis on Aspects of Legal Communitarianism in Greece

Konstantinos Tsitselikis  (U. of Macedonia) has posted Aspects of Legal Communitarianism in Greece: Between Millet and Citizenship. The abstract follows.

Legal and political percepts pertaining to ethnic belonging in Greece are closely linked to the ideological understanding of Greekness, a legacy of the Ottoman Greek-Orthodox millet system. Complementary to this image of the national self, minority protection law on Muslims and Jews was and still is partially formed through millet-like paradigms. Greece’s territorial expansion made all inhabitants of the annexed provinces Greek citizens en masse: in addition to those that were deemed eligible to belong to the Greek nation, Jewish and Muslim communities also acquired Greek citizenship. For these communities the self-autonomy of the Ottoman millet structure in education and religious matters was transformed into minority protection, through special rights (community schools, Moufti’s jurisdiction, Muslim foundations, military conscription) attributable through religion to citizens of the state.

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Storrow on Religion, Feminism and Abortion

Richard F. Storrow (City U. of N.Y. School of Law) has posted Religion, Feminism and Abortion: The Regulation of Assisted Reproduction in Two Catholic Countries. The abstract follows.

Perspectives on abortion and religious values have been two primary influences on the development of the various regulatory regimes that govern assisted reproduction around the world. This article examines why two countries with similar histories of allegiance to Roman Catholicism have developed highly divergent legal regimes to regulate assisted reproduction. Italy has enacted one of the most restrictive regimes known, Spain one of the most permissive. The comparative analysis employed here will afford insight into how the development of legislative responses to assisted reproduction correlate with religious commitments, feminist sentiment and the regulation of abortion. This article concludes with a discussion of what implications its analysis might have for the regulation of the infertility industry in the United States.

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Waters on Hosanna-Tabor’s Potential Impact on Reproductive Rights

Jessica L. Waters (American University School of Public Affairs) has posted Testing Hosanna-Tabor: The Implications for Pregnancy Discrimination Claims and Employees’ Reproductive Rights. The abstract follows.

In April 2009 Jaretta Hamilton, a married elementary school teacher, was fired after her employer school learned that Hamilton became pregnant prior to her wedding. In October 2010 Christa Dias, an unmarried technology coordinator for two schools, was fired after her employer learned Dias was pregnant via artificial insemination. In 2011, Emily Herx, a married Language Arts teacher who was struggling with infertility, was fired after the school where she had been teaching for seven years learned that Herx was undergoing in vitro fertilization treatments. In the fall of 2011, Cathy Samford, an engaged middle school science teacher and volleyball coach, was fired after her employer discovered Samford’s pregnancy.

Can the employer schools of these four women legally fire them for attempting to become pregnant or actually becoming pregnant? Because the schools in question are religiously-affiliated schools, in the wake of Hosanna-Tabor Evangelical Lutheran Church v. EEOC the answer may be yes.
Read more

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Triger on Civil Marriage and Non-Marital Cohabitation in Israeli Rabbinical Courts

Zvi H. Triger (U. of Alabama School of Law) has posted Freedom from Religion in Israel: Civil Marriage and Non-Marital Cohabitation of Israeli Jews Go to the Rabbinical Court. The abstract follows.

The only form of marriage that is recognized under Israeli law is religious marriage. Following the Supreme Court’s ruling in the landmark 1963 Funk Schlesinger case, Israeli authorities must register couples who got married abroad as married. Many couples who wish to avoid the religious monopoly on marriage and divorce choose this rout. However, they are utterly wrong in thinking that they achieve freedom from religion by doing so.

In a 2006 landmark decision the Supreme Court held that the rabbinical court system has jurisdiction over the divorce of couples who got married in civil marriages abroad. While they do not need to have a full religious get procedure, the rabbinical court has exclusive jurisdiction over the dissolution of civil marriages of Jews. The Court’s decision was based on halachic principles, and was pre-approved by a panel of the rabbinical court.

However, rabbinical courts have been ignoring the Supreme Court’s injunction concerning the application of a speedier, more liberal divorce procedure in the dissolution of civil marriages, and they insist on performing a full Jewish get procedure. This article presents this trend, analyzes this phenomenon and offers tentative and preliminary speculations as to the reasons for and the direction of these developments.

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McLellan on Jehovah’s Witnesses and Child Protection Legislation

Myles Frederick McLellan  (U. of Ottawa) has posted Jehovah’s Witnesses and Child Protection Legislation: The Right to Refuse Medical Consent. The abstract follows.

Anglo-American law has for some time recognized the fact that the rearing of children cannot always be handled properly within the context of the natural family unit. Nevertheless, it is a far cry from the proposition that children cannot by their parents to a determination that they should not be so raised. The most bitter confrontation between parents and state usually occurs when the parents, far from being uncaring, interact with their children according to certain ideological, ethical or religious principles. Jehovah’s Witnesses are perhaps the most prominent example of this class of parent. They have, because of their interpretation of the scriptures, forbad certain forms of medical or surgical treatment. They have a deep religious conviction against the administration of blood transfusions. Parents who refuse to give consent for a blood transfusion for their children genuinely believe they are providing for their children’s best interest. When a child’s life is dependent upon a blood transfusion, there is an obvious clash of child-care standards – those imposed by the tenets of a religious faith and those imposed by the state.

It is the aim of this article to explore the remedies available to the state in such situations, and then to discuss the propriety of state intervention in such cases.

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Kovacs on the Tension Between Native American Religions and Wildlife Preservation Laws

Kathryn E. Kovacs (Rutgers School of Law – Camden) has posted Alleviating the Tension between Species Preservation and Religious Freedom. The abstract Follows.

The Bald and Golden Eagle Protection Act prohibits the taking or possession of eagles and eagle parts. Recognizing the centrality of eagles in many Native American religions, Congress carved out an exception to that prohibition for “the religious purposes of Indian tribes.” The problems with the administration of that exception are reaching crisis proportions. At the Fish and Wildlife Service’s National Eagle Repository, which collects dead eagles from around the country and distributes them to members of federally recognized tribes, more than 6,000 tribal members are on a waiting list for eagles. That list grows each year. The wait for a whole golden eagle is now more than four years. A growing number of people in the United States are practicing other religions, like Santeria, that require the use of bird feathers and cannot legally possess the eagle feathers they need for their religion. Frustration with the current system is feeding a burgeoning black market that threatens the viability of eagle populations. Neither of the Eagle Act’s goals are being met: eagles are not adequately protected, and tribal religious needs are not satisfied. Read more

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Religion and Education in Northern Ireland

Christopher McCrudden (Queens University Belfast, University of Michigan Law School) has posted Religion and Education in Northern Ireland: Voluntary Segregation Reflecting Historical Divisions.  The abstract follows.

Since the foundation of Northern Ireland (‘NI’) in 1920, the issue of control over primary and secondary education has been a source of significant tension between its two main ethno-religious communities as well as between each and the NI government. Education in Northern Ireland is organised differently compared with the rest of the United Kingdom and several of its ‘unique features’ arise out of the particular form of its political and religious sensitivities concerning education. This chapter is structured as follows. First, I shall outline the features of the governance of education in the NI model. Secondly, I shall attempt to explain briefly why these features came about. Thirdly, I shall consider research that has attempted to understand the effects of the model on the religious background of pupils in different schools. Fourthly, I shall address the role of teachers in this model. Fifthly, I shall consider issues relating to curriculum and collective worship. Sixthly, the crucial issue of school funding will be examined. Finally, I shall consider the prospects for the model in the future by considering pupil opinion on the structure of schooling and I shall explain how this model relates to political developments in Northern Ireland generally.

 

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Brownlee on Conscientious Objection and Civil Disobedience

Kimberley Brownlee (Warwick U.) has posted Conscientious Objection and Civil Disobedience. The abstract follows.

This paper looks at two types of dissent that are generally described as conscientious, namely, civil disobedience and conscientious objection. Both practices raise pressing normative questions about the proper parameters of dissenters’ rights and duties in a reasonably good society. They also raise questions about both the scope of legitimate toleration of assertions of conscientiousness and the appropriate legal and political responses to conscientious disobedience. The paper gives a qualified endorsement of the moral justifiability of these two practices. It also explores their credentials as moral rights and their legal defensibility. The paper challenges the dominant liberal view that, in relation to both moral rights and legal defenses, a more compelling case can be made for private conscientious objection than for civil disobedience.

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Resnicoff on Extraordinary Sources of Jewish Law

Steven H. Resnicoff (DePaul U. College of Law) has posted Extraordinary Sources of Jewish Law: the Example of Capital Punishment. The abstract follows.

Most Jewish law scholarship, especially that which is published in English, focuses on only one of Jewish law’s criminal law enforcement systems, namely, the operation of the rabbinic court system pursuant to the rules set forth in the Pentateuch, as interpreted in the Babylonian Talmud. In fact, this literature usually fails even to acknowledge the existence of the two other law enforcement systems: (1) enforcement by rabbinic courts functioning under their “extraordinary powers”; and (2) and enforcement by a Jewish king. These two systems vary enormously as to the procedural protections they provide and as to their practical consequences. Failing to examine them causes one to very seriously misunderstand how Jewish law functioned throughout history and paints a rather “Pollyanna-like” portrait of Jewish law.

This submission constitutes Chapter 8 of my book, “Understanding Jewish Law,” published by LexisNexis in June 2012. It explains the dramatic differences among these three criminal law enforcement systems and documents the pragmatic steps taken by rabbinic authorities responsible for providing a safe and stable social environment.