Posted on by Mark Movsesian

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.

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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.
Posted on by Mark Movsesian

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.

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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.
Posted on by Mark Movsesian · 1 Comment

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.

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Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Solliz v. Knox County, Tennessee, a Muslim woman filed suit after she was required by a Knox County sheriff to remove her hijab for a booking photo following her arrest. The complaint alleged violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Tennessee Preservation of Religious Freedom Act.
  • A Ukrainian court has extended the detention of an Orthodox bishop for two months after he was arrested for allegedly revealing army positions to the public in a sermon, having mentioned the presence of a road block that prevented access to a local monastery. The bishop was denied the possibility of posting bail, and the checkpoints in question were removed prior to the publication of his sermon online.
  • A petition for certiorari was filed with the U.S. Supreme Court in Oklahoma Statewide Charter School Board v. Drummond, after the Supreme Court of Oklahoma declared the certification of a Catholic-sponsored charter school violative of the state’s constitution and the Establishment Clause. The petition states that the exclusion of religious schools from the state’s charter program violates the Free Exercise Clause, and that the mere funding of religious schools by the state does not constitute state action.
  • The recently-passed Abortion Services Act in Scotland threatens prosecution against anyone praying within a 200-meter radius of an abortion facility, including within their own homes, if they can be seen or heard within the zone, and act in an intentional or reckless manner. Guidance provided by the government to facilitate compliance lists silent vigils and religious preaching as potentially actionable offenses, if conducted intentionally and recklessly.
  • The University of California has continued to deny wrongdoing following a California federal court’s order mandating a variety of measures to prevent the exclusion of Jewish students from parts of campus. The University claims responsibility lies with actors unaffiliated with the school, whereas the plaintiffs maintain the school’s complicity via its failure to act in the face of clear religious discrimination against its students.
Posted on by Mark Movsesian

A New Book on Religious Freedom in the Middle East

I’m delighted to report that last month Brill released a new book by a great friend of the Mattone Center (and mine!) for many years, Professor Andrea Pin. Andrea, who teaches law at the University of Padua, has an encyclopedic knowledge of comparative law, especially the comparative law of church and state, and he has devoted much of his career to studying how law and religion interact in the Middle East. His new book, Religious Freedom without the Rule of Law: The Constitutional Odysseys of Afghanistan, Egypt, and Iraq and the Fate of the Middle East, addresses that interaction. Highly recommended! Here is the description from the publisher’s website:

The volume compares the efforts to instil the values and practices of the rule of law in the Middle East in the early twenty-first century with their disappointing performances in terms of safety, human rights, and, especially, religious freedom. It zooms in on Afghanistan, Egypt, and Iraq to argue that international interventions and local initiatives underestimated the ethno-religious mosaic of these countries and their political and constitutional culture.

The standard notion of the rule of law values individualism, equality, rights, and courts, which hardly fit the makeup of the Middle East. Securing stability and protecting religious freedom in the region requires compromising on the rule of law; the consociational model of constitutionalism would have better chances of achieving them.

Posted on by Mark Movsesian

The Rule of Law in Iran

Iran is one of the world’s few true theocracies. But that doesn’t mean the country lacks the rule of law. Iran doesn’t have the rule of law in a liberal, Western sense. But courts and judges exist, as do bodies of law that govern commerce, family disputes, and other matters. A new collection of essays from Cambridge, The Rule of Law in the Islamic Republic of Iran: Power, Institutions, and the Limits of Reform explores how the rule of law operates in Iran. The editors are Hadi Enayat of Aga Khan University and Mirjam Kunkler of the Institute for Advanced Legal Study. Here’s the description from the Cambridge website:

After Iran’s 1979 Revolution, Ayatollah Khomeini denounced the secular legal system of the Pahlavis and pledged his commitment to distinctly Islamic conceptions of law and justice: the application of both the shariʿa and the rule of law (hākemiyat-e qānun) became major ideological pillars of the Islamic Republic. This precipitated the Islamization of the legal system, the judiciary and the courts, a process which still continues today and is the subject of intense ideological and political contestation. The Rule of Law in Iran is the first comprehensive analysis of judicial and legal institutions of the Islamic Republic of Iran in their social, political and historical contexts. Scholars and practitioners of law, many with experience of working in Iran, shed light on how the rule of law has fared across a variety of areas, from criminal law to labour law, family law, minority rights, policing, the legal profession, the visual and performing arts, trade law, and medicine.

Posted on by Mark Movsesian

A New Treatise on Islamic Contract Law

This month, Oxford University Press publishes what purports to be the first comprehensive treatise in the English language on Islamic contract law, titled, appropriately enough, Islamic Contract Law. The treatise is directed at non-experts and looks very helpful. The authors are Ilias Bantekas (Hamad bin Khalifa University),Jonathan G. Ercanbrack (SOAS University of London), Umar A. Oseni (International Islamic Liquidity Management Corporation), and Ikram Ullah (International Islamic University Islamabad). Here is the description from the Oxford website:

The first comprehensive treatment of Islamic contract law in the English language, Islamic Contract Law serves as both a reference work and an authoritative statement of the law and the Fiqh underlying it.

The book’s structure draws from the tradition of western contract law books to enable non-expert readers to easily navigate its structure, sources, and application. It covers the complete spectrum of Islamic contract regulation, and includes chapters on the formation of contracts, the sources of Islamic contract law, the role of intention, legal capacity, the importance of the subject matter, as well as the prohibited elements of contracts. Further chapters discuss validity and defects, contractual terms, bilateral agreements, equity-based partnership contracts, ancillary and unilateral contracts, termination and damages, and the role of third parties. Finally, a chapter is devoted to the application of Islamic law in contemporary Muslim-majority legal systems.

This is a key work for understanding the contract underpinnings of Islamic finance instruments and is a must-read for scholars, legal professionals, and students with an interest in contracts governed by Islamic Law.

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion stories from around the web:

  • A California federal court recently issued a temporary injunction barring the University of California from allowing protestors to prevent Jewish students from attending class. The lawsuit was initiated by three Jewish students who claimed they were prevented from accessing certain portions of UCLA’s campus without wearing a wristband signifying their refusal to recognize the State of Israel.
  • In Saint Dominic Academy v. Makin, a Maine federal court refused to enjoin the enforcement of a statute that requires schools receiving tuition aid for out-of-district students to refrain from discriminating on the basis of religion or sexual orientation. The Court found that the statute met the strict scrutiny standard of review placed upon it by the Supreme Court, despite the Plaintiff’s claim that it amounts to a de facto ban on parochial schools receiving the desired aid.
  • In In re Covid-Related Restrictions on Religious Services, the Delaware Supreme Court upheld the dismissal of two challenges to the Governor’s orders restricting religious gatherings in the early stages of the Covid-19 pandemic. The Court held that any injury caused could not be redressed by the suit due the lifting of the restrictions as well as a binding commitment by the Governor not to impose similar restrictions in the future, rendering the desired declarative judgment incapable of changing the status quo.