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Tourkochoriti on Freedom of Religion in France and the USA

Ioanna Tourkochoriti (Committee on Degrees in Social Studies, Harvard University) has posted The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the USA. The abstract follows.

Six years after prohibiting the wearing of headscarves by students in public schools, the French state passed a law prohibiting the wearing of burkas in public places. Compared to France, in the United States there is more tolerance for wearing signs of religious affiliation. The difference in legal responses can be understood in reference to a different background understanding of the fundamental presuppositions of republicanism in the two legal and political orders, which also define their conception of secularism. The law enacted in France can be understood in a general frame of a paternalistic state, which is seen as permitted to dictate the proper exercise of their reason to the citizens. In the United States, the dominant understanding of republicanism attempts to reconcile the natural rights philosophy with the conception of the common good. The trust in the use of collective power and the legislature dominant in France can be opposed to the distrust towards the same elements in the United States.

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Upham on Society of Sisters, Natural Law, and the Pope’s Undeserved Praise

David R. Upham (U. of Dallas) has posted Pierce v. Society of Sisters, Natural Law, and the Pope’s Extraordinary — But Undeserved — Praise of the American Republic. The abstract follows.

In his 1929 encyclical, Divini Illius Magistri (On Christian Education), Pope Pius XI paid an extraordinary tribute to the United States, the Supreme Court, and more specifically, the Court’s interpretation of the Fourteenth Amendment in Pierce v. Society of Sisters. In the course of affirming that parents have the primary right and duty to direct their offsprings’ education, he quoted with approval from Justice McReynolds’s opinion in Pierce. Moreover, the Pope praised both the Taft Court for its reliance on natural law, and the whole American Republic for having ordained the natural rights of the family, and the natural law in general, in the Constitution.

This article will explore the significance and validity of this praise. This article concludes that this tribute, while extraordinary, was simply unwarranted. Rather, the Taft Court evinced an increasing indifference, if not hostility, to natural law concepts–an indifference clear in Pierce itself as well as Buck v. Bell and other cases. Read more

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Gross on Emergency Measures in Jewish Law

Oren Gross (U. of Minn. Law School) has posted Violating Divine Law: Emergency Measures in Jewish Law. The abstract follows.

Judaism is a thoroughly legal culture. Structured around the concept of mitzvot (commandments), Jewish law regulates both the public sphere of social and political interactions and the private sphere of human conduct. Jewish law is founded on a single source of legal authority, i.e., divine will as it is expressed in the Torah that was revealed to Moses at Sinai and transmitted down the generations. Yet, applying the Torah’s principles and rules to everyday life requires further decision-making in the processes of interpretation, application and administration of the law. Jewish law embraces the principle of human decision-making responsibility by recognizing the exclusive competence of halakhic authorities to determine the meaning of the Torah by way of interpretation and exegesis.While laws and regulations that are put in place by halakhic authorities without having a direct basis in the biblical text are binding they cannot contradict or overturn primary (divine) legislation. To the extent that they purport to do so, they would be “unconstitutional” and invalid.

Yet, the paper argues that this has not always been the case. The first argument is that dealing with such questions as could rules promulgated by the halakhic authorities go so far as to practically “overrule” the divinely ordained law of the Torah and could the sages permit or even command that which the Torah forbids, or prohibit that which under the Torah had been allowed, Jewish law has always given these questions a qualified affirmative answer despite the divine source of the Torah law. The second claim is that the legal basis for the sages’ ability to make emergency decisions and adopt emergency measures is not entirely clear. In fact, the paper argues that the ambiguity about the legal foundation of such radical authority or power is purposeful. While some halakhic authorities identify the source of their authority as present within the framework of the law, others seem to recognize that their actions had been lacking legal authority. Rather than invoking their widely-recognized broad interpretative powers and attempt to make the claim that their actions and decisions had been in accordance with the dictates of the Torah they accept, albeit tacitly, the need to act in contravention of the Torah.

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Wright on the Coercion Test and Establishment Clause Cases

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Why a Coercion Test is of No Value in Establishment Clause Cases.  The abstract follows.

Courts have increasingly referred to some sort of ‘coercion’ test in resolving Establishment Clause cases. This is not surprising, given the references to coercion in other areas of the law, and the serious criticism received by other, familiar Establishment Clause tests. As it turns out, though, the literature of the social sciences and humanities, and of philosophy especially, show, initially, the discouraging complexity of trying to rely on any form of coercion test in the Establishment Clause cases.

The crucial problem, however, is not precisely one of the complexity, in this context, of the idea of coercion. Rather, the idea of coercion turns out to be remarkably unclear, open, and in various ways crucially undeveloped and incomplete. Read more

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Crouch on Criminal Trials of Religious Minorities

Melissa Crouch (Melbourne Law School) has posted Criminal (In)Justice in Indonesia: The Cikeusik Trials. The abstract follows.

This article examines the recent court trials of the twelve men who were implicated in the brutal killing of three Ahmadis, and of injuring several others, in a demonstration against Ahmadiyah in Cikeusik in 2011. It calls into question the integrity of the criminal justice system, and argues that the government must take a firm stance against the perpetrators of vigilante violence by ensuring fair and impartial trials in criminal cases concerning religious intolerance, rather than criminalising the activities of religious minorities.

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Heise and Sisk on Extra-Judicial Factors Influencing Free Exercise Claims

Michael Heise (Cornell Law School) and Gregory C. Sisk (University of St. Thomas School of Law) have posted Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts. The abstract follows.

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key extra-judicial factor — judicial ideology — our main finding is that judicial ideology did not correlate with case outcomes. While judicial ideology did not emerge as a significant influence in the Free Exercise context, however, other variables did. Notably, Muslim claimants fared poorly, cases involving exemption from anti-discrimination laws were significantly more likely to result in pro-accommodation rulings, and Asian and Latino judges as well as judges who were former law professors were particularly amenable to Free Exercise and accommodation claims. On balance, our results paint a more complex and nuanced picture of how extra-judicial factors inform Free Exercise and accommodation litigation outcomes as well as judicial decision making more generally.

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Aziz on Selective Enforcement of Material Support Laws Against Muslim Charities

Sahar F. Aziz (Tex. Wesleyan U. School of Law) has posted Countering Religion or Terrorism? Selective Enforcement of Material Support Laws Against Muslim Charities. The abstract follows.

The laws that prohibit providing material support to terrorism are the linchpin of the preventive counterterrorism paradigm. These laws are often the fall-back criminal provisions employed when the government cannot prove terrorism charges. But they are so broad and vaguely worded that they effectively criminalize a myriad of activities that would otherwise be constitutionally protected. Moreover, as the government is not statutorily required to prove that the defendant had a specific intent to support terrorism, it has carte blanche to prosecute a broad range of legitimate activities, such as charitable giving, peace building, and human rights advocacy. The Department of Justice, with the Supreme Court’s blessing, has consequently criminalized training and advocacy in support of nonviolence on the justification that such activities legitimize a designated group or individual. The government’s standards for what it deems as “legitimizing” are so broad that then- Solicitor General Elena Kagan went so far as to call for prosecuting lawyers for filing an amicus brief on behalf of a terrorist organization. Read more

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Rienzi on the Constitutional Right Not to Kill

Mark Rienzi (Catholic U. of America, Columbus School of Law) has posted The Constitutional Right Not to Kill. The abstract follows.

Federal and state governments participate in and permit a variety of types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings.

The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith.

This Article offers a new answer to this very old question: a federal constitutional right not to kill, protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.

The Court’s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are “deeply rooted in the Nation’s history and traditions.” Read more

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Helfand on Litigating Religion

Michael A. Helfand (Pepperdine University School of Law) has posted a very interesting article, Litigating Religion.  In an earlier liveblogging post, Professor DeGirolami discussed Professor Helfand’s talk drawn from the paper at the Religious Legal Theory Conference.  The abstract of the article follows.

This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating religion. Read more

Posted on by Marc O. DeGirolami

Inazu on Hauerwas and Dworkin

CLR Forum friend John Inazu has posted a sophisiticated piece on Ronald Dworkin’s legal and political theory (they are distinct but related), The Limits of Integrity.  John relies on the writing of Stanley Hauerwas to ground his critique of Dworkin.  The article is of a piece with some of John’s other efforts at integrating theological and legal argument.  An excellent read.  The abstract follows.

This article draws upon the work of theologian Stanley Hauerwas to demonstrate how Ronald Dworkin’s theory of law as integrity relies upon secular liberal presuppositions. Dworkin’s constraint on “religious convictions or goals” not only inhibits theological argument in our discussions about law and legal interpretation, but also neutralizes what may be the strongest objections to Dworkin’s normative views. The juxtaposition of Hauerwas and Dworkin is particularly apt because both hold similar interpretive commitments that hang in the balance between a fixed textualism and an unbounded pragmatism. Both justify their epistemic practices by a kind of faith — they do not and cannot know what comes next in their interpretive traditions.

Part I sketches Dworkin’s interpretive theory, and Part II notes its limitations. Part III introduces Hauerwas’s views on interpretation and suggests commonalities between Dworkin and Hauerwas. Parts IV and V illustrate the exclusionary effects of Dworkin’s premises on Hauerwas’s arguments by comparing the ways in which both thinkers approach the abortion controversy. Hauerwas’s arguments show that Dworkin has either imported his own normative commitments into his interpretive premises or failed to distinguish law as integrity from the constraints of public reason. Put differently, either Law’s Empire or Life’s Dominion has overreached. Dworkin hasn’t told us which it is, but Hauerwas shows us why the question cannot go unanswered.