The summer conference season is underway! I’m looking forward to participating later this month (online) in a very interesting conference organized by Professor Adelaide Madera at the University deli Studio di Messina, “Religious Freedom of Minority Groups in Times of Ongoing Crisis.” I’ll be speaking on one of the largest “religious” groups in the US, the Nones. Details about the conference are at the announcement below:
Symposium on the Nones (with a Reply to Me)
I’m a little late getting to this, but a few months ago, the Australian Journal of Law and Religion and Emory’s Canopy Forum jointly published a valuable symposium on the rise of the Nones, with a lead article by Jeremy Patrick (University of South Queensland) that responds to some of my writings on the topic. Jeremy and I come to different judgments about whether Nones should qualify as a religion for legal purposes. Jeremy is persuaded they should; I am skeptical. But it’s always nice to receive careful criticism of one’s work, and I’m grateful to Jeremy and to the symposium’s organizers. You can read Jeremy’s essay, titled “A Brief Rejoinder to Movsesian on ‘The New Thoreaus,'” here.
Legal Spirits 066: The International Moot Court Competition in Law & Religion
We’re back after a bit of a hiatus with a new Legal Spirits episode. Center Director Mark Movsesian talks with Professors Andrea Pin and Luca Vanoni about the International Moot Court Competition in Law and Religion, an annual event that gathers law students from the US and Europe to argue a case before panels representing the European Court of Human Rights and the US Supreme Court. Andrea and Luca discuss how they came up with the idea for this unique competition, its pedagogical goals, and why it has succeeded for a decade and counting. Listen in!
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Around the Web
Here are some important law-and-religion stories from around the web:
- Yeshiva University recently settled a protracted lawsuit with a student-led LGBT group by granting it formal recognition as a student organization, allowing it access to campus facilities and university funding. The lawsuit arose from the school’s refusal to recognize the group on religious grounds, whereas the group claimed such a refusal violated New York antidiscrimination statutes.
- The state legislature of Kentucky recently passed a joint resolution directing the return of a monument displaying the Ten Commandments to the state’s Capitol Grounds. Temporarily removed during the 1980s due to construction, its return was enjoined by the Sixth Circuit Court of Appeals, citing the now-defunct Lemon test as rendering the monument violative of the Establishment Clause. In light of recent Supreme Court jurisprudence declaring the Lemon test overruled, the state legislature voted to reinstate the monument.
- A Catholic diocese and a Christian pregnancy center filed suit against the State of Illinois, challenging recent amendments to the Illinois Human Rights Act that prevents discrimination against employees based on their reproductive health choices. The plaintiffs allege that the amendments burden their Free Exercise rights by preventing them from making faith-based employment decisions, and coercing them to associate with individuals whose actions undermine their staunchly pro-life mission.
- The Kansas state House of Representatives issued a condemnation against a “Black Mass” to take place on the state capitol grounds, citing its clear anti-Catholic animus and blatant disrespect to Christianity. The procession involves the use of a consecrated Catholic host, viewed as a clear mockery and distortion of the Catholic Eucharist, and an alleged affront against the religious sensibilities of “all people of good will.”
- A New York federal district court ruled that a gender support plan that involved hiding a students social gender transition from her parents did not violate the Free Exercise or Due Process rights of her parents. The Court held that the plaintiff was free to exercise her religious and parental rights over her daughter in the household, and that a school policy that existed for the voluntary benefit of students does not endorse a religious message.
Theocratic Criminal Law in Iran
The word “theocratic” gets tossed around a lot these days. Usually, it is used to designate what the speaker believes to be a too-close relationship between religion and the state that results in a law or policy the speaker doesn’t like. But genuine theocracies, where clerics serve as the ultimate political authority, are pretty scare. One such theocracy is Iran. A new book from Oxford University Press, On Theocratic Criminal Law: The Rule of Religion and Punishment in Iran, discusses the situation. The author is Bahman Khodadadi (Harvard). Here’s the description from the Harvard website:
On Theocratic Criminal Law explores the roots and structures of the criminal law system of the world’s most prominent constitutional theocracy, the Islamic Republic of Iran.Â
While discussing the processes of forced de-westernization and de-modernization which occurred in the wake of the Islamic Revolution, this work examines how the Islamic conception of civil order and polity has been established within the legal and theological framework of the Iranian Constitution. The book engages in a process of ‘rational reconstruction’ of Iranian theocratic criminal law and offers a critical analysis of the way criminal law functions as the centrepiece of this mode of political domination. It illuminates how this revelation-based, punitive ideology functions, how the current Islamic Penal Code (IPC) mirrors prevailing Shiite jurisprudence, and ultimately, from what sort of fundamental defects theocratic criminal law in Iran is suffering.
This work provides a critical assessment of the criminalization and sentencing theories that have stemmed from the shariatization (Islamization) of all law in the wake of the Islamic Revolution of 1979. By embarking upon a typology of punishment in Shiite Islamic jurisprudence and the Iranian Islamic Penal Code the book then provides a systematic critical analysis of the three types of punishment stipulated in the Iranian Penal Code, namely ta’zir, hadd, and qisas. It also explores the jurisprudential principles and dynamic power of Shiite Islam not only as a driving force behind political and social change but as a force that has been capable of forging a whole theocratic legal system.
Wearing Religious Symbols in Italy
The US doesn’t have too much trouble with people wearing religious symbols in public places. In Europe, though, this has been a consistent controversy–famously in France, but in other jurisdictions as well. A new book from Routledge, Secularism and Freedom of Religion in Italy, addresses the approach of Italian law. The author is political scientist Maria Cristina Ivaldi (University of Campania Luigi Vanvitelli). Here’s the publisher’s description:
The display of religious symbols in the public space has been the subject of much debate. This book provides an overview of the presence of religious symbols in Italian public institutions from a legal standpoint.
The situation is analysed from the perspective of the principles of laicità /secularism, as defined by the Constitutional Court, and freedom of religion. It is argued that while the display of religious symbols in public institutions has been widely investigated doctrinally, the wearing of religious symbols in Italy has generally been neglected. Key cases are examined in light of national jurisprudence as well as intervention by the European Court of Human Rights and relevant judgments from foreign courts regarding this issue. Finally, the work considers the presence of religious symbols that transcend national borders, as in the case of arts, sport and advertising. A comparison is made with the French system which takes a very different approach. The book outlines possible ways forward in light of the growing interculturality of European societies.
It will be a valuable resource for academics, researchers and policy-makers working in the areas of law and religion, and comparative law.
Around the Web
Here are some important law-and-religion news stories from around the web:
- The Justice Department recently reached a settlement with a township in Pennsylvania on behalf of group of Old-Order Amish residents who were penalized for failing to connect to the town’s sewage system and placing permanent outhouses on their property. The Justice Department brought suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the settlement requires the Township to exempt certain households, as well as forgive any outstanding liens or fines arising from the violations.
- President Trump issued an executive order intended to combat antisemitism, reaffirming Executive Order 13899 issued during his prior administration.
- A court in Ukraine recently suspended the evictions of Orthodox monks from the Kiev Caves Lavra Monestary, among the most famous of Orthodox monasteries in Ukraine and spiritually significant to Orthodox Ukrainians and Russians. The monastery has been state-owned since the Soviet era, and the Brotherhood’s contract with the State of Ukraine was terminated as part of a general trend of discrimination against the Ukrainian Orthodox Church/Moscow Patriarchate, partially in response to the Russian invasion of Ukraine.
- In Little v. Los Angeles County Fire Department, a California federal district court allowed an Evangelical Christian lifeguard’s free exercise and Title VII claims to proceed in a case seeking a religious accommodation to displaying a pride flag on his lifeguard stand.
- US Catholic Bishops have petitioned believers to urge their members of Congress to resume foreign aid programs recently suspended by the Trump administration.
A New Book on Law & Religion in China
This month, Wolters Kluwer releases the third edition of Religion and Law in China, a practitioners’ guide that looks useful for academics as well. The book covers such topics as the constitutional status of religion, religious freedom, and the effect of international law on religious communities. The author is Zhao Jianmin. Here’s the description from the Wolters Kluwer website:
Derived from the renowned multi-volume International Encyclopaedia of Laws, this convenient resource provides systematic information on how China deals with the role religion plays or can play in society, the legal status of religious communities and institutions, and the legal interaction among religion, culture, education, and media.
After a general introduction describing the social and historical background, the book goes on to explain the legal framework in which religion is approached. Coverage proceeds from the principle of religious freedom through the rights and contractual obligations of religious communities; international, transnational, and regional law effects; and the legal parameters affecting the influence of religion in politics and public life. Also covered are legal positions on religion in such specific fields as church financing, labour and employment, and matrimonial and family law. A clear and comprehensive overview of relevant legislation and legal doctrine make the book an invaluable reference source and very useful guide.
Succinct and practical, this book will prove to be of great value to practitioners in the myriad instances where a law-related religious interest arises in China. Academics and researchers will appreciate its value as a thorough but concise treatment of the legal aspects of diversity and multiculturalism in which religion plays such an important part.
Around the Web
Here are some important law-and-religion stories from around the web:
- An insurance worker from Michigan was awarded a twelve-million dollar judgment against her former employer after she was terminated for refusing to adhere to a private mandatory-vaccination requirement on religious grounds. It seems likely that the insurance company will appeal the judgment, considering the jury’s proportionately-large award of ten-million dollars in punitive damages.
- In Ex parte Halprin, a Texas appellate court granted a new trial to a Jewish inmate who was sentenced to death following the murder of a police officer responding to the robbery of a Dick’s Sporting Goods. The Court found that the trial judge’s decision was based in large part on antisemetism, citing various out-of-court statements brought by witnesses that showed a clear animus against the defendant’s Jewish heritage.
- In Union Gospel Mission of Yakima, Wash. v. Ferguson, a Washington federal district court granted a preliminary injunction preventing the state of Washington from applying its antidiscrimination laws to homeless shelters run by a Christian organization. The organization sought to limit its hiring to coreligionists, while the government of Washington claims religious exemptions to antidiscrimination statutes only apply in the context of ministerial hirings.
- In Wexler v. City of San Diego, a California federal district court rejected the claim of an Orthodox Jewish man that the City of San Diego discriminated against his exercise of religion by allowing his eviction on the Sabbath. The Court found that because the evictors were not state actors, and because state laws in place facilitating the eviction process were neutral and generally applicable, the Plaintiff’s Religious Exercise Claim must fail.
- In Furqua v. Raak, the Ninth Circuit reinstated the free exericse and equal protection claims of a self-described Christian Israelite who was refused Kosher meals for Passover after the prison chaplain claimed that any such religious requirement for a Christian was erroneous. The Court held that because the Plaintiff was denied an accomodation based on the subjective theological assessment of the chaplain, as opposed to a neutral and valid procedural rule, a reasonable trier of fact might find that he was refused an accomodation on account of religious discrimination.
Constitutional Intolerance
Religious freedom begins with tolerance, but aspirationally goes beyond it, to the full participation of religious minorities in political and legal life. Lately, some European observers think that even tolerance for religious and other minorities is lacking. A book out from Cambridge next month, Constitutional Intolerance: The Fashioning of the Other in Europe’s Constitutional Repertoires, explores the phenomenon. The author is Marietta van der Tol (above), the Alfred Landecker Postdoctoral Fellow at Oxford’s Blavatnik School of Government. Here’s the publisher’s description:
Constitutional Intolerance offers a deeper reflection on intolerance in politics and society today, explaining why minorities face the contestation of their public visibility, and how the law could protect them. Van der Tol refers to historical practices of toleration, distilling from it the category of ‘the other’ to the political community, whose presence, representation, and visibility is not self-evident and is often subject to regulation. The book considers ‘the other’ in the context of modern constitutions, with reference to (ethno)religious, ethnic, and sexual groups. Theoretical chapters engage questions about the time and temporality of otherness, and their ambivalent relationship with (public) space. It offers examples from across the liberal-illiberal divide: France, the Netherlands, Hungary, and Poland. It highlights that vulnerability towards intolerance is inscribed in the structures of the law, and is not merely inherent to either liberalism or illiberalism, as is often inferred.