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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five.  Since last week, Douglas Laycock remains at #1, Perry Dane remains at #2, Elizabeth Sepper remains at #3, Richard Garnett remains at #4, and Patrick McKinley Brennan remains at #5.

1. Religious Liberty and the Culture Wars  by Douglas Laycock (U. of Virginia, School of Law) [258 downloads]

2. Doctrine and Deep Structure in the Contraception Mandate Debate by Perry Dane (Rutgers, School of Law) [232 downloads]

3. Contraception and the Birth of Corporate Conscience  by Elizabeth Sepper (Washington U., School of Law [148 downloads]

4. ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense by Richard W. Garnett (Notre Dame Law School)  [135 downloads]

5. ‘The Pursuit of Happiness’ Comes Home to Roost? Same-Sex Union, the Summum Bonum, and Equality by Patrick McKinley Brennan (Villanova U., School of Law) [78 downloads]

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five.  Since last week, Douglas Laycock remains at #1, Perry Dane remains at #2, Elizabeth Sepper has moved up to #3 replacing Dwight Newman, Richard Garnett has moved up to #4, and Patrick McKinley Brennan has joined the list at #5.

1. Religious Liberty and the Culture Wars  by Douglas Laycock (U. of Virginia, School of Law) [254 downloads]

2. Doctrine and Deep Structure in the Contraception Mandate Debate by Perry Dane (Rutgers, School of Law) [231 downloads]

3. Contraception and the Birth of Corporate Conscience  by Elizabeth Sepper (Washington U., School of Law [148 downloads]

4. ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense by Richard W. Garnett (Notre Dame Law School)  [134 downloads]

5. ‘The Pursuit of Happiness’ Comes Home to Roost? Same-Sex Union, the Summum Bonum, and Equality by Patrick McKinley Brennan (Villanova U., School of Law) [76 downloads]

Posted on by Mark Movsesian

Robinson on Religious Institutions

Zoe Robinson (DePaul) has posted a new piece, What is a Religious Institution?, on SSRN. The abstract follows:

Change in the First Amendment landscape tends towards the incremental, but the Supreme Court’s opinion two terms ago in Hosanna-Tabor v. EEOC — holding that religious institutions enjoy a range of First Amendment protections that do not extend to other individuals or organizations — is better understood as a jurisprudential earthquake. The suddenness and scale of the shift helps to explain the turmoil that has ensued in the lower courts and law journals. And yet, it could be that the biggest aftershock has yet to be felt. The Court left open the most important functional question that exists in scenarios where there will be constitutional winners and losers: what, or who, is a ‘religious institution’ for First Amendment purposes?

The lower federal courts have begun to grapple with the question, but no satisfactory approach exists. Drawing on the historical sources and values animating Hosanna-Tabor and its Religion Clause predecessors, this Article provides a workable framework for distinguishing between those institutions that fall within the scope of the religious institutions category and those that do not. The framework proposed here proceeds from a purposive analysis that turns on which institutions will most often and most effectively use the newly identified and exclusive protections to benefit society as a whole. To this end, the framework favors institutions that have as their purpose (1) protection of individual conscience; (2) protection of group rights; and (3) provision of desirable societal structures.

Posted on by Mark Movsesian

Salomone on Proposals to Ban Religious Dress in French Universities

My St. John’s colleague, Rosemary Salomone, has written an essay on proposals to ban religious dress in French universities, “Should the Veil Be Banned in Higher Education?” Here’s a synopsis:

The piece discusses competing approaches to the uniquely French concept of “laicite,” a form of secularism, and the current debate in France over a proposal from the High Council for Integration to ban ostensible religious signs or clothing from French public universities. Though the proposal does not mention Islam, Professor Salomone argues that the target clearly is the wearing of the Islamic “hijab” or headscarf. Professor Salomone questions the reasons offered for the ban, based on alleged incidents of religious conflicts in universities, which the Minister of Higher Education and Research and the president of the Conference of University Presidents refute. She warns that banning the veil would unjustly deny some Muslim young women their only option for higher education and further isolate them culturally and religiously.  She further suggests that the debate ignores the forces of globalization, transnationalism, and European integration, the consequent rise of “world citizens” among the younger French population, and the gradual integration of Muslims into French society that inevitably will loosen the French approach to “laicite,” and perhaps sooner than the current debate would lead us to believe.

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five. Since last week, Douglas Laycock remains at #1, Perry Dane remains at #2, Dwight Newman remains at #3, Elizabeth Sepper remains at #4, and Richard Garnett remains at #5.

1. Religious Liberty and the Culture Wars  by Douglas Laycock (U. of Virginia, School of Law) [240 downloads]

2. Doctrine and Deep Structure in the Contraception Mandate Debate by Perry Dane (Rutgers, School of Law) [226 downloads]

3. On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada by Dwight G. Newman (U. of Saskatchewan, College of Law) [175 downloads]

4. Contraception and the Birth of Corporate Conscience  by Elizabeth Sepper (Washington U., School of Law [142 downloads]

5. ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense by Richard W. Garnett (Notre Dame Law School)  [131 downloads]

Posted on by Mark Movsesian

Liviatan on Abortion and Islam in Cultural Debates

Ofrit Liviatan (Harvard) has published an article, “From Abortion to Islam: The Changing Function of Law in Europe’s Cultural Debates,” in the current volume of the Fordham International Law Journal. Here’s the abstract:

The Article rethinks the law’s role in present-day European debates over Islam in light of its calming effects on the once fiercely-fought abortion reforms across Western Europe. Using examples from Germany, Italy, France, Belgium, Britain, the Netherlands and Switzerland the article demonstrates that the role of the legal process in each of these culture-based debates diverged along its two social functions. Reflecting growing public anxieties, legal actions concerning Muslims typically focused on generating social and cultural change, foreclosing the likelihood of political compromises. In contrast, at the time of abortion reform legal measures acted as mechanisms of social and cultural order, contributing to the pacification of the fierce public controversies even as moral disagreements over abortion endured. Drawing on this comparison, the article suggests that Europe’s constitutional review processes present a compromise-building path to deliberate contemporary conflicts over Islam.

The Article proceeds in three parts. Part II and III analyze the legal developments in the context of Islam and abortion across Western Europe, revealing a contrasting dynamics in the roles of the legal process in each of these debates. Part IV assesses the effects of the legal process in each of the debates and rules out alternative explanations for this divergence. It argues that the factor of time or European secularization cannot account for the current intensity-difference in each of these debates. The article concludes by proposing a path to launch the currently absent constitutional conversation over Islamic-based tensions in Western Europe. Modeled on abortion reform, constitutional courts should reach beyond proportional balancing and dictate policy frameworks addressing both the roots of Muslim disadvantages and the anxieties of the European public.

Posted on by Mark Movsesian

Pearson on Article 9 and the Eweida Judgment

From Oxford’s Human Rights Law Review, an essay by Megan Pearson (PhD Candidate, LSE) on Article 9 of the European Convention on Human Rights, particularly its prohibition on state interference with religious freedom:

Freedom of conscience and religion is probably unique in its potential to challenge almost every area of law. Since society contains a multitude of religious and moral beliefs, many religious people will constantly be faced with practices with which they disagree and will in a myriad of ways be constrained from living an ideally religious life. Not all of this can constitute an interference with the right under Article 9 of the European Convention on Human Rights (ECHR) to manifest belief ‘in teaching, practice and observance’. However, the European Court of Human Rights’ (‘the Court’) approach has historically been unnecessarily restrictive in considering whether an interference under Article 9(1) exists, thus shutting out cases at an early stage of reasoning and before justification is considered under Article 9(2). This approach has been narrowed even further by the British courts.

Article 9 has therefore been of limited use to claimants. The first full case to be heard on it by the Court was not until 1993 as earlier cases were ruled inadmissible by the European Commission of Human Rights. However, the Court’s approach is currently in a state of flux, as demonstrated by Eweida v United Kingdom and is moving to a broader approach that correctly moves the attention to the justification stage.

This article focuses on Article 9(1) and the question of interference. It does not consider when interferences will be justified. The first part will consider various proposals for deciding ‘where rights begin’. It will then address specific questions arising from ECHR and English case law on the topic, considering in particular whether it should be possible to claim an interference where the conflict could be avoided by resigning from employment or taking other similar action. The third section will consider the change brought by Eweida and discuss some remaining issues that have not yet been resolved.

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five.  Since last week, Douglas Laycock has moved up to #1, Perry Dane has moved down to #2, Dwight Newman remains at #3, Elizabeth Sepper remains at #4, and Richard Garnett remains at #5.

1. Religious Liberty and the Culture Wars  by Douglas Laycock (U. of Virginia, School of Law) [224 downloads]

2. Doctrine and Deep Structure in the Contraception Mandate Debate by Perry Dane (Rutgers, School of Law) [219 downloads]

3. On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada by Dwight G. Newman (U. of Saskatchewan, College of Law) [171 downloads]

4. Contraception and the Birth of Corporate Conscience  by Elizabeth Sepper (Washington U., School of Law [135 downloads]

5. ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense by Richard W. Garnett (Notre Dame Law School)  [116 downloads]

Posted on by

The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five.  Since last week, Perry Dane remains at #1, Douglas Laycock has moved up to #2, Dwight Newman has moved down to #3, Elizabeth Sepper remains at #4, and Richard Garnett remains at #5.

1. Doctrine and Deep Structure in the Contraception Mandate Debate by Perry Dane (Rutgers, School of Law) [216 downloads]

2. Religious Liberty and the Culture Wars  by Douglas Laycock (U. of Virginia, School of Law) [195 downloads]

3. On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada by Dwight G. Newman (U. of Saskatchewan, College of Law) [167 downloads]

4. Contraception and the Birth of Corporate Conscience  by Elizabeth Sepper (Washington U., School of Law [129 downloads]

5. ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense by Richard W. Garnett (Notre Dame Law School)  [104 downloads]

Posted on by Mark Movsesian

Zucca on Freedom of Religion as an International Human Right

Lorenzo Zucca (King’s College London) has published Prince or Pariah? The Place of Freedom of Religion in a System of International Human Rights, as part of the Working Paper Series produced by the ReligioWest project at the European University Institute. The abstract follows:

The human right to freedom of religion (HRFR) at the international level is a deeply contested concept and is interpreted in radically different ways in the respective historical constitutional instruments of the US and Europe. It is, for example, embedded in the First Amendment of the American
Constitution, but finds no explicit recognition in the French Declaration of Rights. The question that emerges from this simple starting point is: what is the place of freedom of religion in a system of protection of international human rights? Is there a single answer to this question, or is it a deeply contingent matter that depends on discrete constitutional histories? This paper attempts to unravel this deeply contentious issue, which goes to the very core of disagreement about the nature of the human
rights to freedom of religion. Lacking agreement as to what constitutes freedom of religion, international intervention should limit itself to the bare minimum in this area. This renders freedom of religion a pariah at the international level.