Posted on by Mark Movsesian

Waltman on Religious Liberty and Employment

Jerold Waltman (Baylor) has posted a paper on recent British legislation affecting religion in the workplace, Religious Liberty and the Employment Sections of the Equality Act 2010. The abstract follows. — MLM

Religious liberty is rightly called the “first freedom.” This is not only because it was the first to develop historically, but also because it involves human beings’ most fundamental identity. When peoples’ beliefs are imposed on them, they cannot be free in any meaningful sense of the term. But the individual’s freedom to believe carries two vital corollaries. One is that she must be able to put those beliefs into practice. The other is that religious liberty has a collective as well as an individual dimension. Many religions require that people form groups in order to worship and engage in other religious activities. Thus, in a polity committed to religious liberty, religious organizations must be able to claim rights alongside individuals.

Posted on by Mark Movsesian

Laborde on Religious Dress

More on banning religious attire: Cecile Laborde (University College London) has posted State Paternalism and Religious Dress. The abstract follows. — MLM

This paper criticises the paternalist argument for bans on gender-specific restrictive religious dress. This posits that the prohibition on the wearing of hijab in schools assists the emancipation and autonomy of young girls. In the first section, I briefly summarize the republican paternalist position against the hijab, and explain why it is flawed, in light of a critical republican ideal of non-domination. In the second section of the paper, I expand the argument, and apply it to recent controversies about the wearing of the niqab (full face covering). I argue that the so-called ‘burqa ban’ in France (13 July 2010) suffers from even graver flaws than the 2004 hijab ban, to the extent that it extends paternalistic coercion from children to adults. More generally I explore the question as to whether, if there are relevant differences between hijab and niqab, they have a bearing on the normative case against legal regulation.

 

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Sandberg on Religious Freedom and Discrimination in the UK

Russell Sandberg (Cardiff Law School) has posted The Right to Discriminate. The abstract follows. –JKH

The first decade of the 21st century has witnessed a number of controversies surrounding the interaction between law and religion in the United Kingdom. In particular, tensions have emerged between laws protecting religious freedom and those which prohibit discrimination on grounds of sexual orientation. In particular, Parliament has repeatedly examined the scope and ambit of exceptions afforded to religious groups which allow them to discriminate on grounds of sexual orientation when specific conditions are met.  And these exceptions have reportedly led to tensions within both the Blair and Brown cabinets and rebukes from the Vatican and the European Commission, criticising the exceptions for being too narrow and too broad respectively. The exceptions have also been challenged by way of judicial review, have been applied or commented upon in a number of high-profile cases and have attracted comment in the print and broadcast media. A number of employees have brought claims asserting that new legal requirements promoting equality on grounds of sexual orientation are incompatible with their religious beliefs. This article seeks to explore the legal changes that have occurred in the first decade of the 21st century affecting religion and sexual orientation with particular reference to how courts and tribunals have dealt with clashes between the two. It discusses the extent to which English law allows religious groups and individuals to follow their own beliefs regarding human sexuality.

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Van Alstyne on the Establishment Clause

William W. Van Alstyne (William & Mary Law School) has posted What is ‘An Establishment of Religion?’. The abstract follows.—YAH

This critical examination of the phrase “an establishment of religion” contained within the First Amendment uses an analysis to the exact language to draw out several possible interpretations, including: state established churches, the conventional understanding restricting any legislation dealing with religion, and the existence of religion in the actual operation of government.

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Stolzenberg on Race and Religion in Law

Nomi M. Stolzenberg (University of Southern California Gould School of Law) has posted Righting the Relationship Between Race and Religion in Law. The abstract follows.—YAH

This review discusses the interrelationship of race and religion in law, the subject of Eve Darian-Smith’s new book, which seeks to rectify the neglect of religion in the study of race and law and the parallel neglect of race in studies of law and religion. Concurring with the book’s basic propositions, that the segregation of race and religion into separate fields of legal studies needs to be overcome and the religious origins of fundamental liberal legal ideas need to be recognized, I tease out different ways in which race and religion can be “linked” and religion can “play a role” in the development of modern law that are not fully parsed out in Darian-Smith’s analysis. Applauding her attempt to integrate recent challenges to the long regnant “secularization thesis” into the study of race and law, I point out some unresolved ambiguities in those challenges and their implications for law.

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Anti-Semitism in America’s Favorite Pastime

Kenneth Lasson, Professor of Law at the University of Baltimore School of Law has posted Hammerin’ Hank & the Golden Arm: Remembering Baseball’s Jewish Hall of Famers.  The piece explores the experiences of Hank Greenberg (AKA the “Hebrew Hammer”), first baseman and power hitter for the Detroit Tigers, and pitcher Sanford “Sandy” Koufax of the  Brooklyn/Los Angeles Dodgers.  Both endured anti-Semitic taunts, discrimination, and abuse during their careers in “America’s Favorite Pastime,” including for their refusal to play key World Series games so that they could attend Yom Kippur services.  This brief essay raises questions of American religious intolerance through the experience of religious minorities perceived as outsiders in a quintessentially American discipline.  Here is the paper’s brief abstract:

This article mostly discusses two of baseball’s greatest players, Sandy Koufax, and Hank Greenberg. Not only does it describe their great talent at the game, but also the religious discrimination, taunts and abuse they had to endure for their religious beliefs, not just from the public, but occasionally from members of opposing teams as well.

Enjoy.

—DRS, CLR Fellow

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Steven D. Smith: Freedom of Religion or Freedom of the Church?

Professor Steven D. Smith of the University of San Diego School of Law has posted, Freedom of Religion or Freedom of the Church?.  In it, he argues that the modern jurisprudence of the religion clauses is so untidy because it focuses on an amorphous concept of “religion” when instead it should focus on the more discrete concept of “the church.”  See the abstract below:

This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church – a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church – both the institutional church and the inner church – came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.

—DRS, CLR Fellow

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Beneke on Religious Violence, Anti-Catholicism, and Rights of Conscience in Early America

Chris Beneke (Bentley University) has posted “Not by Force or Violence”: Religious Violence, Anti-Catholicism and Rights of Conscience in the Early National United States. The abstract follows. – ARH

This essay maintains that the sixteenth- and seventeenth-century wars of religion, as well as the periodic hanging, burning, and disemboweling of heretics, did indeed provide a lush and useful ideological backdrop during the Revolutionary era.  As state and federal constitutions were framed, religious violence was vividly recalled, but it was also safely ensconced in the distant past.  Late eighteenth-century partisans of religious rights generally treated religious violence as the defining characteristic of a regrettable age that all reasonable and sympathetic people would want to avoid reliving, rather than an imminent threat.

This approach to a sanguinary and increasingly remote history was integral to a new legal and cultural framework in which anti-Catholicism slackened and less corporal understandings of religious faith took hold.  It was also integral to the justification of a more expansive conception of rights. Toleration’s protections were limited to preserving dissenters from violence and severe, intrusive forms of persecution.  By contrast, “religious liberty” (a close, late eighteenth-century synonym for “free exercise of religion”), protected them from the more mundane operations of religious oppression, such as restrictions on movement, marriage, and office holding, exclusive incorporation laws, and inequitable taxation, thus clearing the way for full participation in civil life.  To those who conceived and defended religious liberty in the new nation, violence was of course deplorable.  It was just not directly relevant.

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Noda on The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use

Tokufumi Joshua Noda  (Student at Boston College Law School) has posted The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use. The abstract follows. – ARH

Courts have been divided over the proper application of the substantial burden and equal terms provisions of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) to religious land-use cases. In particular, courts and scholars have had trouble balancing the competing concerns between municipalities and religious institutions regarding control over land-use regulations. The basic question remains, how to provide religious institutions with protection against discrimination without conceding too much control over land-use regulations. This Note observes the use of economic principles in Judge Posner’s opinions, which can help guide a balanced, fact-sensitive application of RLUIPA’s provisions. Using this approach, courts can balance competing concerns by weighing them against relevant facts that are specific to each community. Nevertheless, although the economic approach sheds light on the application of RLUIPA, it also reveals new tensions both within RLUIPA’s application and the economic approach generally.

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Tebbe on the Constitutionality of Witchcraft in South Africa

Nelson Tebbe (Brooklyn Law School) posted Witchcraft and the Constitution. The abstract follows. –JKH

Witchcraft beliefs and related practices are complex social phenomena that present difficult challenges for South African lawmakers who are bound by their constitution and committed to upholding its values. In this chapter of an edited volume from the University of Cape Town Press, I focus on certain constitutional questions raised by existing policies and current proposals. In some respects, the constitutional issues are easier than might be supposed. For example, Parliament may punish violence against suspected witches, even with laws that specifically address religiously motivated murder and assault. Also, citizens may believe that occult forces exist, and that those forces are being manipulated by jealous or malevolent neighbors. More constitutionally problematic are calls for educational campaigns that would “demystify” witchcraft beliefs, or proposals for laws that would prohibit certain rituals related to witch naming. Regardless of the resolutions, these sorts of constitutional issues deserve a place in the public debate.