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Wilson on Accommodating Religion in Family Law

Robin Fretwell Wilson (Washington and Lee University – School of Law) has posted The Perils of Privatized Marriage. The abstract follows.

Governments around the world continue to struggle with how to accommodate religious minorities in an increasingly pluralistic society, and how to accommodate religion in matters of family law. Efforts to respect religious understandings in family disputes seem at first blush innocuous: they would allow religious groups to define their own norms and celebrate the rich diversity of society. However, the experience of women and children of multiple faiths across the world demonstrates that religious deference extracts an unconscionable price. As the Volume in which this Chapter appears illustrates, such proposals would confer considerable latitude in family matters not only on adherents of Islam, but on Christians, Jews, and members of other faiths.
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Carpenter on Individual Religious Freedoms in American Indian Tribal Constitutional Law

Kristen A. Carpenter (U. of Colorado Law School) has posted Individual Religious Freedoms in American Indian Tribal Constitutional Law. The abstract follows.

Written on the 40th Anniversary of the Indian Civil Rights Act, this article engages with a prominent critique of individual rights in tribal communities, namely that they effectuate the ‘assimilation’ of tribal people, values, and institutions. On the one hand, because American Indian religions emphasize collective values and experiences, this critique is particularly apt in the religion context, and the imposition of individual rights norms recalls the federal government’s historic efforts to destroy tribes by eradicating tribal religious practices. Moreover, in many tribal communities, religion is conceptualized and practiced not in terms of ‘rights’ but rather ‘duties’ to other people, plants, animals, natural features, and the ceremonies themselves. On the other hand, some Indian tribes have historically recognized personal liberties in spiritual practices, and now consider it an obligation of self-government to protect individual interests in religion. This article explores these themes, particularly as they manifest in tribal constitutional law, which reveals a broad spectrum of rights and duties, individual and collective protections. The article also elaborates on several ways that tribes recognize individual rights in the context of tribal culture, namely using tribal custom as a basis for interpreting positive law on individual religious rights, maintaining separate institutions for the resolution of legal disputes about religion, and engaging in constitutional reform to change religious rights provisions that are inconsistent with tribal values. In the final analysis, the article observes that that while many challenges remain, tribal governments often try to facilitate individual and collective interests in religious freedom today.

 

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Stahl on Local Government, Vote Appropriation and “the Jewish Question”

Kenneth Stahl  (Chapman U. School of Law) has posted Local Government, One Person/One Vote, and the Jewish Question. The abstract follows.

This article argues that the Supreme Court’s jurisprudence regarding the application of the ‘one person/one vote’ rule to local governments, while often considered hopelessly confused, actually contains an internal logic that reflects the ambiguous legacy of the Enlightenment in this country. There are three broad strands within the one person/one vote jurisprudence: the first, beginning with Avery v. Midland County, requires cities to apportion votes based on a ‘one person/one vote’ principle; the second, exemplified by Ball v. James, permits certain municipalities to apportion votes according to a ‘one dollar/one vote’ formula; and a third, captured in Holt Civic Club v. City of Tuscaloosa, gives the state plenary power to allocate votes with regard to some local government matters. Although these three strands seem impossible to reconcile, they are all consistent with an Enlightenment jurisprudential project to consolidate the power of the central state by suppressing the ability of entities exercising authority over particular territories, such as local governments, to challenge the state’s hegemony. Read more

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Denk on the Eighth Amendment, Catholic Teaching and Death Penalty Discourse

Kurt M. Denk, S.J. (Boston College Law School) has posted Jurisprudence that Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse. The abstract follows.

Despite obvious differences, certain historical and conceptual underpinnings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court’s expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis “necessarily embodies a moral judgment.” This Article compares that jurisprudence with the Catholic Church’s present, near-absolute opposition to capital punishment, assessing how the death penalty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning. It then identifies substantive concepts that permit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated, presenting this approach as a means to advance death penalty discourse.

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Duncan on Christian Libertarianism

Richard F. Duncan (U. of Neb. College of Law) has posted By the Waters of Babylon: Christian Libertarianism in the Age of Obama. The abstract follows.

In this short essay, I compare Secular America to ancient Babylon in order to convey my understanding of what it is like to live as a faithful Christian in a postmodern secular state. Just as the Jewish people wandered in exile in ancient Babylon, Christians wander today in an America that has rejected our God.

My pragmatic proposal for Christians living in the Age of Obama is to recognize that Babylonian law will typically reflect the morality and values of Babylon, not those of the America of our forefathers. The path to religious freedom in our society lies in an explosion of privatization, in a radical shrinking of the role of government in the lives of its citizens. As government retreats, religion will be free to advance. As government programs are cut and resources are returned to private citizens, we will be free to educate our children as we believe is best, to support causes we believe are right and good, to live our lives in accordance with our understanding of the good life and based upon our own theories of justice. In other words, a small Babylonian government should be the goal of Christians who find themselves living by the waters of Babylon here in Secular America.

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Blitt on the Secular Influence of the Russian Orthodox Church

Robert C. Blitt (University of Tennessee College of Law) has posted Whither Secular Bear: The Russian Orthodox Church’s Strengthening Influence on Russia’s Domestic and Foreign Policy. The abstract follows.

As 2012 presidential elections in Russia draw near, evidence points to a collapse in that country’s constitutional obligation of secularism and state-church separation. Although early signs of this phenomenon can be traced back to the Yeltsin era, the Putin and Medvedev presidencies have dealt a fatal blow to secular state policy manifested both at home and abroad, as well as to Russia’s constitutional human rights principles including nondiscrimination and equality of religious beliefs.
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Ringelheim on Rights, Religion & the Public Sphere in the European Court of Human Rights

Julie Ringelheim (U. of Louvain, Belgium) has posted Rights, Religion and the Public Sphere: The European Court of Human Rights in Search of a Theory?  The abstract follows.

This paper seeks to analyze the European Court of Human Rights’ (ECtHR) case-law on religious freedom in the light of political and social theory debates on the place of religion in the public sphere. The Court’s jurisprudence on these matters denotes an increasing attempt at going beyond casuistry and building a consistent vision of religious freedom and its implications for state-religions relations, valid across Europe. Alongside the core notion of pluralism, three major principles have progressively emerged in this case-law: the right to autonomy of religious communities vis-à-vis the state; an obligation of neutrality for the state; and the necessity of the secularity of the legal order’s foundations. These principles, it is submitted, are in line with the democratic ideal that underlies the European Convention. Yet, the Court’s approach to religion-related disputes is not without tensions and problems. These are especially manifest when the Court handles disputes that go beyond the issue of the respective autonomy of religion and public authority, and concern the multifaceted question of expression ofreligion in the public sphere, in particular, the status of religion in public discourse, the wearing of religious garments at public school or university, and claims for accommodation of religious practice in the workplace. In some cases of this sort, the Court has adopted stances that are questionable from the viewpoint of the principles it has itself identified as central for religious freedom. In other instances, these principles themselves appear to be in need of further elaboration. But the significance of the tensions surrounding the treatment of religious disputes by the Court cannot be fully grasped without having regard to present-day discussions in social and political theory on the relations between religion and the public sphere. From this perspective, it appears that the ECtHR’s case-law is to a large extent built on assumptions stemming from the classic secularisation thesis, and that this, among other factors, makes it theoretically ill-equipped to deal with situations that do not fit this paradigm.

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Johnson on Corporate and Religious Fiduciaries in Bankruptcy

Lyman Johnson (Washington and Lee U. & U. of St. Thomas, St. Paul Schools of Law) has posted Debarring Faithless Corporate and Religious Fiduciaries in Bankruptcy. This paper was first presented in September 2011, at the “Religion and Bankruptcy” Conference, hosted by the Center for Law and Religion. Marc DeGirolami liveblogged the presentation for the CLR Forum. The abstract of Johnson’s article follows.

Fiduciary duties for the top governance officials of both business and religious organizations demand faithfulness to the institution’s mission, a seemingly strict demand. Meaningful sanctions for breach, however, are difficult to obtain and may not deter future misconduct, including that kind of conduct leading to organizational bankruptcy. This article advocates that, to attain both special and general deterrence, bankruptcy law should look to other regulatory regimes and permit a bankruptcy court to debar faithless secular and ecclesiastical fiduciaries from holding certain leadership positions. Although written shortly before the 2012 Supreme Court Hosanna-Tabor decision, that opinion – addressing the “ministerial exception” for employees − does not alter the constitutional assessment of the position argued for in this article with respect to harm-causing, non-ministerial governing officials.

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Hiers on Biblical Contract and Tort Jurisprudence.

Richard Hiers (University of Florida) has posted Ancient Laws, Yet Strangely Modern: Biblical Contract and Tort Jurisprudence. The abstract follows.

People generally, and even most biblical scholars, tend to view biblical law as, at best, a random patchwork of odd and antiquated commandments and rules.  The present Article demonstrates that many biblical laws can be understood to have functioned in biblical time, in ways remarkably similar to various laws characterized in modern AngloAmerican jurisprudence as contract and tort law.  In particular, the Article points out that the biblical tort laws found in Exodus 21:18 through 22:17 are structured along lines closely parallel to concepts found in modern tort law jurisprudence.  Many of the  biblical laws considered here give expression to the underlying values of concern for the worth and well being of both individuals and the community.  The findings here should be of interest to both legal and biblical scholars.

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Woehrling & Jukier on Religion in Canada

José Woehrling (University of Montreal) and Rosalie Jukier (McGill University) have posted Religion and the Secular State in Canada. The abstract follows.

This article reflects the National Report from Canada on Religion and the Secular State prepared by the co-authors for the XVIIIth International Congress of Comparative Law that took place in Washington, D.C., in July 2010. This Report provides a snapshot of the state of the law with respect to religion in Canada from a multitude of perspectives, touching on both its private law and public law dimensions, against the backdrop of the diverse and changing social and religious composition of Canada. The theoretical and constitutional frameworks, as well as important questions of the definition of secularity and the need for reasonable accommodation, are canvassed. Particular applications of religion and the secular state in the arenas of education, marriage and divorce, contracts, religious symbols and hate speech are also discussed.