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Singh on Polygamy Law in India

Suraj Singh (University of Study and Research in Law) has posted Polygamy in India – With Special Reference to the Bulkiest Constitution in the World. The abstract follows.

The research work analyzes the issue of Polygamy with reference to the bulkiest constitution in the world. Most of the debaters argue that the Indian polygamy law only prohibits polygamy among one religious group. Thus, current Indian law poses a constitutional paradox because permitting polygamy among Muslim men but prohibiting it among Hindus under the freedom of religion provisions violates the equal protection provisions of the Indian Constitution. The author takes a departure from this standpoint and argues that there are several reasons why Polygamy was not made punishable under the muslim personal law. The reasons are umpteen, i.e., historical reasons, political reasons, etc. which are further elucidated in the report. Relevant constitutional provisions and judicial pronouncements are being articulated and discussed with reference to the issue of Polygamy.Hence, the legislation in India, prohibiting polygamy among Hindus yet allowing polygamy among Muslims, is not unconstitutional and it doesn’t violate the provisions of Articles 13, 14 and 15 of the Indian Constitution.

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Krivenko on the Islamic Veil and Gender Equality

Ekaterina Yahyaoui Krivenko (University of Montreal – Faculty of Law) has posted The Islamic Veil and its Discontents: How Do they Undermine Gender Equality. The abstract follows.

The article addresses the use of notions of gender equality and non-discrimination in the discussions concerning the practice of Islamic veiling by the European Court of Human Rights as well as by French authorities in relation to the recent adoption of the law banning full face veils in public spaces in France. The author argues that the use of the rhetoric of gender equality without the required knowledge and understanding of the justifications for and discussions about this practice existing within Islam is in both cases very inadequate and leads to results opposite to those they intended to promote. Based on insights into the discussions of Muslims about the practice of veiling the author makes some proposals for a more adequate approach to this practice both from the point of view of women’s status as well as from the point of view of relationship between Islam and the West.

 

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Prélot on France’s Full Veil Prohibition

Pierre-Henri Prélot (University of Cergy-Pontoise) has posted Religious Symbols and the Law of 1905: Reflections on the Prohibition of the Full Veil in Light of the French Law on Religious Practice. The abstract follows.

There is a recurrent debate in France on the conflict between the principle of secularism and the expression of religious convictions in public places. The liberal approach, which is open to all forms of public expression including the religious convictions of individuals, is opposed to a much more restrictive conception, which understands secularism as limiting religious convictions to the private sphere, with the corollary of the interdiction, or at least a strict restriction, of their public manifestation, whether they be individual or collective. In today’s highly secularized French society, which feels itself undermined by religious factors deriving from international conflicts and internal tensions, the sometimes radical affirmation of identities tends to weaken the liberal interpretation which is at the basis of the law of 1905, in favor of a much more restrictive vision of the principle of secularism. That is revealed by the law of October 11, 2010, on the prohibition of the covering of the face in public places, which falls within the very old royal tradition, derived from Gallicanism, of the public regulation of religious practices. Although it carefully avoids any reference to religious practices or convictions, the law of October 11, 2010 must be understood as a law implementing a religious policy.

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Kwall on Copyright Law and Jewish Process Theology

Roberta Rosenthal Kwall  (DePaul U. College of Law) has posted The Lessons of Living Gardens and Jewish Process Theology for Authorship and Moral Rights. The abstract follows.

This Article examines the issues of authorship, fixation and moral rights through the lens of Jewish Process Theology. Jewish Process Theology is an application of Process Thought, which espouses a developmental and fluid perspective with respect to creation and creativity. This discipline offers important insights for how to shape and enforce copyright law. The issue of “change” and authorship is more important now than ever before given how the digital age is revolutionizing the way we think about authorship. The Seventh Circuit’s recent decision wrongly maintaining that a living garden is not capable of copyright protection since it is unfixed, changeable and partially the product of non-human authorship illustrates the need for interdisciplinary guidance with respect to copyright law and policy.

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Render on Religious Practices, Sex Discrimination and Toleration

Meredith Render (U. of Alabama School of Law) has posted Religious Practice and Sex Discrimination: An Uneasy Case for Toleration. The abstract follows.

This essay considers two questions: (1) whether there are moral or instrument reasons to tolerate religious practices that contravene our fundamental public values; and (2) in instances in which there is no moral or instrumental reason to tolerate a practice that contravenes public values, whether it is appropriate to condition the availability of tax exempt status on religious institutions’ fidelity to public values.

The essay offers a response and supplement to the insights contained in Caroline Mala Corbin’s interesting essay, “Expanding the Bob Jones Compromise” in which Corbin thoughtfully argues that we should withdraw tax exempt status from religious institutions that discriminate on the basis of sex. Corbin observes that tax exempt status is already conditioned on nondiscrimination with respect to race, and she offers the insight that there is no principled reason to treat sex and race discrimination differently in the this context. While this essay accepts the latter insight, I argue that there may be instrumental reasons why we would be concerned about the government determining which religious practices contravene our nondiscrimination norms and which do not. I further raise concerns about the mechanism Corbin selects (conditional tax exempt status) in light of Hosanna-Tabor, the Supreme Court’s latest articulation of the degree of protection offered by the Religious Clauses to religious practices that implicate the selection of ministers.

Posted on by Marc O. DeGirolami

Davie on Law, Sociology, and Religion

I missed this when it came out a few months ago — Grace Davie’s Law, Sociology, and Religion: An Awkward Threesome — in the Oxford Journal of Law and Religion.  Like all of the journal’s content at present, it is available for free.  And our readers will want to check out this piece.  Here is the opening of Professor Davie’s extremely interesting article:

Lawyers are increasingly interested in religion—for good reason. Religious disputes demand the attention of legal experts—an interest that is likely to grow given that almost all of us live in religiously diverse societies, in which effective forms of co-habitation have to be established and regulated. Sociologists, initially distracted by the assumption that modernization implied secularization, are similarly inclined, spurred on by the presence of religion in public as well as private debates. No longer is it possible to relegate religion to the sidelines of social science. Sociologists, finally, have always been interested in the law—recognizing that the law and law-making reflect the changing nature of society.  The interpretation of law, conversely, sharpens the issues at stake and becomes itself an important factor in social change.

All that said, these can be difficult conversations. Lawyers and sociologists are differently trained and ask different questions about religion, as indeed about everything else. They do not always listen to each other. Lawyers, for example, create and interpret legal frameworks, some of which deal with religion; they are less interested in the messy realities of lived religion as this is experienced in everyday life. If it is one thing to deem certain forms of religion to be legally acceptable and others not, it is quite another to grasp the implications for the individuals and communities, that fall—at times arbitrarily—on one side of the line or the other. Why, for example, do certain religious movements fare better in some parts of Europe than in others? Clearly this has nothing to do with the religious movements themselves, and everything to do with the understandings of tolerance and toleration in the host society, and the historical specificities that lie behind this. Legal judgements must be placed in context.

Professor Davie is surely right to say that lawyers, sociologists, and religious studies scholars are pursuing very different sorts of inquiries and projects, and she is surely also right to say that they nevertheless can learn a great deal from one another.

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Esbeck on Hosanna-Tabor and the First Amendment

Carl H. Esbeck (University of Missouri School of Law) has posted A Religious Organization’s Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment.  As noted by Professor DeGirolami in an earlier post, Professor Esbeck co-authored an amicus brief in the case.  The abstract of the article follows.

In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required.

Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during a sacrament. Smith held that the Free Exercise Clause was not implicated when Oregon enacted a neutral law of general applicability that happened to have an impact on a religious practice. The Court admitted that the nondiscrimination law in Hosanna-Tabor was a general law of neutral application that happened to have an impact on the School’s ability to fire a teacher. It distinguished Smith. Read more

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Bickers on Standing and Establishment Clause Jurisprudence

John M. Bickers (Northern Kentucky University – Salmon P. Chase College of Law) has posted a very interesting piece, Standing on Holy Ground: How Rethinking Justiciability Might Bring Peace to the Establishment Clause.  The abstract follows.

The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting lack of clarity leaves lower courts to their own devices in endeavoring to calm increasingly intense struggles. Read more

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Murray on Assumptions in Hosanna-Tabor

Brian M. Murray (Staff Attorney, Community Legal Services of Philadelphia) has posted The Elephant in Hosanna-Tabor. The abstract follows.

This article identifies an unarticulated and widely ignored assumption in the Supreme Court’s recent religious liberty decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which grounded the ministerial exception in the Free Exercise Clause. Specifically, the Court’s failure to articulate which organizations can invoke the ministerial exception could undermine the Free Exercise Clause that is the very basis of the exception’s existence. I argue that the Court’s oversight will result in significant future litigation in a post-Employment Division v. Smith world. The Court’s decision in Hosanna-Tabor uses ambiguous and careless language when failing to articulate the assumption mentioned above. Chief Justice Roberts’ majority opinion uses phrases such as “religious body,” “church,” and “religious organization” interchangeably and without explanation. I explain why this is inadequate from an historical, jurisprudential, and practical perspective by highlighting the tradition of recognizing institutional autonomy and the rise of unconventional religious entities, known as “parachurches,” that self-define as religious. These organizations will present the trickiest case studies with respect to the ministerial exception, thereby making future litigation on this issue likely.
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Moran: Islamic Law, Religious Freedom, and ERISA-Backed Pension Plans

Beverly I. Moran, tax-law scholar and Professor of Law at Vanderbilt Law School, has posted Islamic Law Meets Erisa:  How America’s Private Pension System Unintentionally Discriminates Against Muslims and What to Do About It.  The article explores the position of Muslim employees, who can be disadvantaged when their religious beliefs prevent them from taking retirement funds generated through interest schemes; the challenge to, and obligations of, employers in accommodating these employees’ beliefs; and related Title VII jurisprudence.  The author’s abstract, describing this complicated and troubling legal landscape, follows the jump. Read more