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Sandberg on the Study of Law and Religion

Russell Sandberg (University of Wales System – Cardiff Law School) has posted The Sociology of the Law and Religion. The abstract follows.

This is the English language version of a piece which is published in Italian in Dizionario del sapere storico-religioso del Novecento, edited by Alberto Melloni, by Il Mulino (Bologna, 2010). It provides a definition of ‘the sociology of the law on religion’. This can be understood as a discipline which studies the interaction between law, religion and society. The paper assesses the extent to which this discipline exists. It looks at law and religion scholars such as Doe and Bradney who have made reference to sociology and sociologists of religion such as Davie and Beckford who have made reference to law. The author has further developed his analysis of the interaction between law and religion and the sociology of religion in his doctoral thesis and will return to the subject in a forthcoming monograph for Cambridge University Press.

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Hensler on Sports at a Fundamentalist Christian University and the Nature of Tort Law

Louis W. Hensler III (Regent U. School of Law) has posted Torts as Fouls: What Sports at a Fundamentalist Christian University Taught Me About the Nature of Tort Law. The abstract follows.

This essay is largely a response to John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917, 918 (2010). I propose a refinement of Goldberg and Zipursky’s vision. In my view, tort is better seen, not as recourse for “wrongs,” but rather as sanction for “fouls.” In other words, tort merely forces the rule-breaker to consider the consequences of his conduct rather than prohibiting the conduct altogether by a punitive sanction. I believe this refinement solves some of the problems presented by Goldberg and Zipursky’s approach.

I first started thinking about the distinction between providing recourse against a wrongdoer and sanctioning a rule breaker while I was a participant and spectator in the intramural sports program at a fundamentalist Christian university where the intentional foul (e.g., to stop the clock while time was running out in a basketball game) was not allowed. This approach seemed generally consistent with the overarching philosophy of the school – all conduct was either right or wrong. Violating rules was wrong. Intentionally violating rules, even with a willingness to accept the sanction provided by the rules of the game, was wrong. The intentional foul was an implicit rejection of moral absolutes and acceptance of moral pragmatism. I never quite came to fully accept that view of the intentional foul. Read more

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Shah on Muslim Law in the Western Context

Prakash Shah (Queen Mary, University of London School of Law) has posted In Pursuit of the Pagans: Muslim Law in the English Context. The abstract follows.

In this Working Paper, I make the case that a reconfiguration of law is taking place in the contact between Western and Muslim law. Muslim law is itself a complex, pluralistic amalgam of different legal ‘bricks’, and in the context of the struggle for Islam to be acknowledged as a legitimate source of value pluralism in the Western context, the religious aspects of Muslim law, with their doctrinal justifications, are being foregrounded. With the English case as the main focus, I further argue that customs among Muslims are suppressed in this process of ‘shariatisation’. Beyond that, even Muslim doctrines are being placed under the spotlight in various ways. These changes are taking place as a result of Muslims living as non-dominant communities in Europe, where they are under the gaze of the dominant culture and are judged to be potential or actual violators of human rights and the rule of law. Relying on Balagangadhara’s (2005) explanation of the ‘dynamic of religion’, I present these processes as an outcome of the collision of two religious cultures, the Islamic and the Western.

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Pierik on State Neutrality in Europe

Roland Pierik (University of Amsterdam) has posted State Neutrality and the Limits of Religious Symbolism.  The abstract follows.

The European Court of Human Rights (ECtHR) has concluded that the mandatory display of crucifixes in public school classrooms does not violate the European Convention. Many have questioned whether a supra-national court like the ECtHR is entitled to interfere in issues that are so intimately linked to the national identity of state parties. However, even if one agrees that the Court’s Grand Chamber was in the end correct not to interfere (by employing the margin of appreciation), one can still question whether a constitutional democracy like Italy is justified in enforcing an explicit Christian symbol in public schools.

In this chapter, I analyze the Lautsi case from the perspective of state neutrality. It is generally acknowledged in legal and political philosophy that contemporary constitutional democracies cannot be formally linked to some religious confession, except in a vestigial and largely symbolic sense. As Rajeev Bhargava argues, the idea of neutrality requires a “principled distance” between religion and the state, two entities that should be seen as distinct spheres with their own respective areas. In this chapter, I analyze whether the wish to hold on to such a religiously inspired tradition is consistent with the idea of state neutrality, a central value of contemporary constitutional democratic states. Read more

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Norton on Using an Establishment Clause Analysis for Free Speech Claims

Helen L. Norton (University of Colorado School of Law) has posted The Equal Protection Implications of Government’s Hateful Speech. The abstract follows.

Under what circumstances should we understand government’s racist or otherwise hateful speech to violate the equal protection clause? Government speech that communicates hostility or animus on the on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties’ discriminatory behavior, deter its targets from certain important behavior, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms potentially posed by such government expression. The recent emergence of the Court’s government speech doctrine — which to date has emphasized the value of government expression without yet fully addressing its potential costs — offers an important new opportunity to consider the situations in which government speech might offend equal protection values.
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Kwall on Women, Synagogue and the Cultural Analysis Paradigm

Roberta Rosenthal Kwall  (DePaul U. College of Law) has posted The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study. The abstract follows.

This Article develops an original cultural analysis paradigm with significant implications for understanding the relationship between law and culture. It also illustrates how this relationship should inform the normative application of areas of law in which tensions exist between modern sensibilities and traditional practices steeped in cultural perspectives form other times. Indeed, the negotiation between preservation and change confronts all ancient cultural traditions in modernity. The specific application invoked in this Article concerns the issue of women being called to read publicly from the Torah, a subject of serious academic debate among observant Jews. The analysis demonstrates that the virtually unanimous practice of excluding women from participation in public Torah reading exists despite long-standing ambiguity in the strictly legal realm of the tradition. This reality reveals that the prevailing practices and legal justifications have been markedly influenced by cultural considerations. Thus, the story of women and public Torah reading provides the ideal subject for exploring the synergies between law, culture, and tradition. This story also serves as a model for how cultural analysis can inform the discourse on a broad range of issues in which settled law confronts cultural shifts.

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Sandberg on Whether Judges Understand Religion

Russell Sandberg (Cardiff U. Law School) has posted The Adventures of Religious Freedom: Do Judges Understand Religion? The abstract follows.

At the dawn of the twenty-first century, something rather unexpected happened: religion became significant again. Since the time of the Enlightenment, great thinkers had been quick to predict that religion would vanish in modern rational society and throughout the twentieth century this broadly became the case. However, the events of the late twentieth and twenty-first centuries have questioned these long held expectations about the decline of religion. One of the most noteworthy, but often overlooked, changes relates to law. Religious freedom is now recognised as a human right and discrimination on grounds of religion or belief has become explicitly prohibited. These new laws have led to a significant increase in litigation and discussion of ‘religious rights’ (a process which may be referred to as the ‘juridification of religion’) and long-standing assumptions and values have become questioned. The relationship between law and religion has become increasingly important and increasing controversial. This paper looks at several recent high profile effects in order to determine the effect of this ‘juridification of religion’. Cases concerning prayers said at Council meetings, refusals to give urine samples and protests outside St. Pauls Cathedral will be amongst those examined to determine whether judges truly understand religion and the extent to which the new legal framework is working.

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Griffin on Why Hosanna-Tabor Misinterprets the First Amendment

Leslie C. Griffin (University of Houston Law Center) has posted The Sins of Hosanna-Tabor.  The abstract follows.

The Supreme Court has lost sight of individual religious freedom. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court for the first time recognized the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Court ruled unanimously that Cheryl Perich, an elementary school teacher who was fired after she tried to return to school from disabilities leave, could not pursue an antidiscrimination lawsuit against her employer. Read more

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Garnett on the Role of Religious Communities

Richard W. Garnett (Notre Dame Law School) has posted Religious Freedom and (and in) Institutions.  The abstract follows.

This paper is a contribution to a volume of essays dealing with a range of contemporary challenges – challenges posed by new questions, and by new forces – to religious liberty. It considers the role that religious communities, groups, and associations play – and the role that they should they play – in our thinking and conversations about religious freedom and church-state relations. And, its primary claim is that the values and goods that the First Amendment’s Religion Clauses embody and protect are well served by a civil-society landscape that is thick with churches (and mediating institutions and associations of all kinds) and by legal rules that reflect their importance. These institutions contribute in distinctive ways to the reality of religious freedom under law.

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Nichols on Religion and Marriage

Joel A. Nichols (University of St. Thomas School of Law) has posted Religion, Marriage, and Pluralism. The abstract follows.

In November 2010, Oklahoma voters overwhelmingly passed the first “anti-sharia statute” as an amendment to their state constitution. Although federal courts have held the Oklahoma amendment unconstitutional, several other states continue to move toward various bans on sharia law. Such statutes would have the greatest impact in family law.

This article describes tensions faced by members of both minority Muslim and majority Christian religious communities, who view family issues as controlled both by their religious community and by the demands of the civil state. The article outlines four possible future paths for the intersection of religion and the civil state regarding marriage and divorce. Within these four alternatives, it is clear that even if states purport to disallow sharia (or any other religious beliefs) such a pronouncement will not eliminate adherence to sharia among faithful Muslims. It would mean, at most, that sharia would not be enforced by civil courts. At least for some observant Muslims, the effect will be the same as in the United Kingdom or Ontario: Islamic religious arbitrations will continue to exist outside the protection of the civillaw.
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