Posted on by

Paulsen on Religious Liberty and the Existence of God

Michael Stokes Paulsen (University of St. Thomas School of Law) has posted The Priority of God (A Theory of Religious Liberty). The abstract follows.

Professor Paulsen argues that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State. Religious freedom exists to protect the exercise of plausibly true understandings of God’s actual commands, as against state power, and to disable state power to proscribe — or prescribe — religious exercise. The article explores four possible stances of society toward religious freedom, depending on whether society and state embrace the idea of religious truth (or not) and whether society and state embrace the idea of religious tolerance (or not). It then argues that America’s Constitution’s religion clauses, in their original conception, are predicated in a belief in the possibility of religious truth and the imperative of religious tolerance so that the state does not interfere with private individuals’ and groups’ pursuit of truth. This perspective illuminates many of the issues that have plagued interpretation of the First Amendment religion clauses.

Posted on by

Simson on Same-Sex Marriage and the Establishment Clause

Gary J. Simson (Mercer University School of Law) has posted Religion by Any Other Name? Prohibitions on Same-Sex Marriage and the Limits of the Establishment Clause. The abstract follows.

 This article considers whether laws prohibiting same-sex marriage should be found to violate the Establishment Clause. After explaining the nonendorsement principle that the Supreme Court has recognized as central to the clause, the article discusses the limited case law and commentary that explicitly address the constitutionality of same-sex marriage prohibitions under the Establishment Clause. It then examines the various reasons that opponents of same-sex marriage have offered in support of a ban and concludes that those reasons provide strikingly little justification for laws banning same-sex marriage.

Read more

Posted on by

Mishra on Law and Religion in Saudi Arabia

Abhinav Mishra (Rajiv Gandhi National University of Law) has posted Bridging the Gap between Religion and Law in Saudi Arabia. The abstract follows.

To associate Law with Religion is not particularly bad until it becomes the primary source of all principles used to govern the people of a state. Law must chance with the changing times and a Legal System overtly influenced by Religion prevents it from doing so. Therefore, the purpose of this paper is to show out the key loopholes in the Saudi Arabian Legal System, point out why the lusterless system is still in action, propose a new model and show how it would be effective. Also, in this paper, possibilities of revolt and other such contemporary issues will be touched upon.

Posted on by

Augustine on The First Amendment, Freedom Riders and Passage of the Voting Rights Act

Jonathan C. Augustine (Louisiana Workforce Commission) has posted The Theology of Civil Disobedience: The First Amendment, Freedom Riders and Passage of the Voting Rights Act. The abstract follows.

In 2011, usage of the term “civil disobedience” resurged in the American lexicon for at least two reasons: (1) there was widespread civil protest in Egypt; and (2) America observed the fiftieth anniversary of the now-celebrated Freedom Rides. Both reasons demonstrate the continued relevance of the twentieth century American Civil Rights Movement (“the Movement”).

American media widely covered Egyptian citizens’ nonviolent acts of civil disobedience as Egyptians peacefully protested governmental corruption in demanding free and fair elections. Further, since 2011 marked the golden anniversary of the Freedom Rides in the United States, Americans were reminded of the nonviolent civil disobedience undertaken by an interdenominational movement of clergy and laity, undergirded by a Judeo-Christian suffering servant theology. Dissident adherents literally sacrificed themselves for the democratic cause in which they believed. Read more

Posted on by

Larson on Indigenous Peoples’ Religious Rights Claims to Water Resources

Rhett Larson (Arizona State U. College of Law ) has posted Holy Water and Human Rights: Indigenous Peoples’ Religious Rights Claims to Water Resources. The abstract follows.

Water, perhaps more than any other natural resource, has profound religious meaning: in ceremonial uses, as a spiritual symbol, and as an object of worship. The scarcity of legal scholarship regarding the nexus between religious rights and water law is therefore curious. This paper examines that nexus and its implications in the context of indigenous peoples and international law. The international human right to water has developed as an implicit right necessary to securing jurisprudentially underdeveloped positive rights explicitly provided for under international human rights covenants, such as the right to a standard of living, but can also be built upon the foundation of broadly accepted, jurisprudentially mature civil rights, like the freedom of religion. Grounding the human right to water on such a foundation has important implications for indigenous peoples’ religious-rights-based claims to water resources. The stability of such claims depends upon effective frameworks within which international tribunals can adjudicate such claims. Ultimately, this Article evaluates the development of the international human right to water, discusses the nexus of that right with religious rights in the context of indigenous peoples’ water-resource claims, and proposes frameworks for evaluating those claims. The formulation and interpretation of water law requires greater consideration of the cultural meaning of water to promote cooperation within the watershed and to protect natural and cultural resources.

Posted on by

Temperman on Religious Symbols in the Classroom

Jeroen Temperman (Erasmus University Rotterdam) has posted Religious Symbols in the Public School Classroom. The abstract follows.

This paper flags a couple of preliminary legal questions that are remarkably often ignored or trivialized by (international) courts. Underscoring the importance of identifying primary rights holders, genuine conflicting interests, and the obligations of duty bearers in symbol cases, this contribution illustrates that much depends on who can be identified as ‘symbol-displayer’ and who as ‘symbol-viewer’ and within which particular (public) setting. Focusing on public school education, the paper addresses such questions as under what circumstances may State neutrality be considered a legitimate ground for limiting fundamental rights. And who is actually supposed ‘to be neutral’ according to human rights law –– States, buildings, the ‘public square’, civil servants, teachers, students, and/or pupils? When does a symbol truly ‘interfere’ with the rights and freedoms of others or with public order? And who is to prove that? Also, what are the exact standards of proof in symbols cases?

Posted on by

Blitt on the United Nations’ Resolutions on Combating Religious Intolerance

Robert C. Blitt (University of Tennessee College of Law) has posted Defamation of Religion: Rumors of its Death are Greatly Exaggerated. The abstract follows.

This Article explores the recent decisions by the United Nations (“UN”) Human Rights Council and General Assembly to adopt consensus resolutions aimed at “combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief.” These resolutions represent an effort to move past a decade’s worth of contentious roll call votes in favor of prohibiting defamation of religion within the international human rights framework. Although labeled “historic” resolutions, this Article argues that the UN’s new compromise approach endorsed in 2011 — motivated in part by the desire to end years of acrimonious debate over the acceptability of shielding religious beliefs from insult and criticism — is problematic because it risks being exploited to sanction the continued prohibition on defamation of religion and perpetuation of human rights violations on the ground.

After briefly considering the history of defamation of religion at the UN and the strategies employed by its proponents, this Article turns to an assessment of the UN Human Rights Council’s 2011 consensus Resolution 16/18. In light of the resolution’s objectives, this Article explores the viability of the international consensus around “combating intolerance” and tests to what extent, if any, the concept of defamation of religion may be waning in practice. To this end, this Article weighs, among other things, statements and resolutions of the Organization of Islamic Cooperation (“OIC”) pertaining to defamation — particularly those issued following the adoption of Resolution 16/18 — as well as its activities in other UN bodies. Read more

Posted on by

Sternlieb on the Shomrim and the Establishment Clause

Sarah Sternlieb (Emory University School of Law) has posted When Eyes and Ears Become Arms of the State: The Dangers of Privatization Through Government Funding Insular Religious Groups. The abstract follows.

The Shomrim, Hebrew for ‘guards,’ operate as an ancillary police force in Hasidic communities. Defined by devout adherence to traditional norms, Hasidic Jews confine themselves to insular communities within America. However, like many insular or inherently religious communities, they appear to have a propensity to discriminate against outsiders in their attempts at seclusion. Although the Shomrim hold themselves out as their community’s primary police force, they frequently commit bias crimes and other discriminatory acts. This Comment advances the novel argument that the Shomrim are state actors, and that government funding to the Shomrim may also violate the Establishment Clause. The Shomrim receive substantial government funding, maintain close ties and connections with the police and the state, and perform a public function. Because these connections constitute a ‘close nexus,’ the Shomrim’s actions are fairly attributable to the state. As state actors, the Shomrim would be held accountable to constitutional limitations, and would be prohibited from discriminating against outsiders. However, remedying this attribution of state action implicates additional constitutional problems. This Comment proposes that under current state action doctrine and Establishment Clause jurisprudence, the only permissible solution in this context is to remove government ties and funding.
Read more

Posted on by

Shemtob on the Religious Composition of the Supreme Court

Zachary Baron Shemtob (Central Connecticut State University) has posted The Catholic and Jewish Court: Explaining the Absence of Protestants on the Nation’s Highest Judicial Body. The abstract follows.

Following the 2006 retirement of Sandra Day O’Connor and the confirmation of Samuel Alito to succeed her, Roman Catholics formed a majority on the United States Supreme Court for the first time in this institution’s 210-year history. This Catholic majority was further strengthened by the appointment of Sonia Sotomayor in 2009. By the time of Elena Kagan’s first case in October of 2010, not a single Protestant sat on the nation’s highest judicial body.

By way of comparison, in 1960 the Court consisted of seven Protestants, one Catholic and one Jew; in 1985, eight Protestants and one Catholic sat on the Court. This phenomenon is further reflected in judicial appointments. Since 1985, only one Protestant has been appointed, Justice David Souter, compared to seven Catholics and three Jews. The prima facie reason for this transformation is simple: President Reagan began the Protestant erosion by appointing two Catholics; George H.W. Bush followed by appointing a Catholic; and Bill Clinton, George W. Bush, and Barack Obama chose only Jewish and Catholic nominees. The deeper reasons, which are considerably more complex, are the focus of this article.

Posted on by

Ashe on Women, Religion, & American Law

Marie Ashe, Professor of Law at Suffolk University Law School, will publish Women’s Wrongs, Religions’ Rights: Women, Free Exercise, and Establishment in American Law.  Please see the abstract below:

 This article provides an historical examination of American Constitutional law concerning religion as it has evolved through three periods: the Mormon period of the late nineteenth century; the religious pluralism period of post-WW2 decades; and the multiculturalism period that began around 1990 and that remains underway. It examines Supreme Court interpretations of First Amendment provisions pertaining to religion, and it contextualizes those interpretations to explore their implications for women’s liberty and equality at each of the three periods. Its argument is that Constitutional doctrine relating to religion – through its multiple doctrinal reversals – has consistently entailed and depended upon negative constructions of women, sacrificing women’s liberty and equality interests in order to prefer and to cultivate the liberty and equality interests of churches.