Posted on by L&R Forum

Around the Web

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

  • In United States v. Harris, the 5th Circuit Court of Appeals deliberated on whether a defendant, charged with threatening a federal judge and declared incompetent for trial, could be involuntarily medicated despite his religious objections as a Jehovah’s Witness. The court recognized the importance of religious liberty in this context, concluding that it could be considered a “special circumstance” in deciding the permissibility of involuntary medication, according to Supreme Court precedent in Sell v. United States.
  • In Foshee v. AstraZeneca Pharmaceuticals LP, a Maryland federal court dismissed a religious discrimination claim under Title VII by two employees seeking a religious exemption from a COVID-19 vaccine mandate. The court found that their objections, based on what plaintiffs assert was guidance from God or the Holy Spirit and personal concerns about the vaccine, were not strictly religious but intertwined with secular reasons, thus not qualifying for a religious exemption. The court emphasized that their beliefs, being “not subject to any principled limitation in…scope,” amounted to an unverifiable “blanket privilege” not strictly religious in nature.
  • In Hilsenrath v. School District of the Chathams, a New Jersey court reaffirmed its prior decision stating that a 7th grade curriculum on Islam did not violate the Establishment Clause. The court, after a reconsideration prompted by the U.S. 3rd Circuit Court of Appeals, emphasized that the educational materials were not coercively promoting religious establishments forbidden by the First Amendment, leading to a ruling in favor of the school board.
  • In Gospel Light Mennonite Church Medical Aid Plan v. New Mexico Office of the Superintendent of Insurance, a New Mexico federal district court declined to order an injunction that would prevent the state’s insurance superintendent from regulating Health Care Sharing Ministries (HCSMs), cost-sharing organizations intended to cut medical expenses for members. The plaintiffs argued that an official press release, which warned consumers about HCSMs and declared their plans unauthorized insurance products, showed a form of official disapproval of their religious beliefs. However, the court disagreed, and using rational basis review, found that state laws requiring compliance with the Insurance Code were justified and evinced a legitimate governmental concern.
  • In The Matter of James Hogue v. Board of Education of the City School District of the City of New York, the New York Supreme Court Appellate Division upheld the denial of Hogue’s request for a religious exemption from the COVID-19 vaccination mandate for New York City Department of Education employees. It ruled that Hogue failed to prove his objection was based on sincere religious beliefs and that granting an exemption would impose undue hardship on the Department of Education. The court dismissed Hogue’s other arguments, including a lack of cooperative dialogue and issues of timeliness in the appeal process.
  • In Supriyo @ Supriya Chakraborty v. Union of India, India’s Supreme Court declined to recognize same-sex marriages, aligning with government and religious leaders who opposed the petitions. The Court concurred that the power to legislate on marriage resides with the parliament, not the judiciary. The petitioners had advocated for the modification of the Special Marriage Act to be more inclusive by using the term “spouse” instead of specifying gender. Despite refusing to legalize same-sex marriages, the Court did urge the government to explore and implement extended rights and privileges for same-sex couples, suggesting the formation of a committee to examine this prospect.
Posted on by Mark Movsesian

Japanese Integralism?

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There’s a lot of discussion in the American academy today about integralism. The word has various meanings, but the basic definition, as I understand it, is a melding of the spiritual and the political. That is, integralism opposes the Lockean separation of religion and state that has been an essential feature of classical liberalism.

A forthcoming book from Rowman and Littlefield, Religion, State, and Political Culture in Japan: Implications for the Post-Secular World, discusses the relationship of state and religion in Japan. Although it doesn’t use the word, it suggests that Japan has always been rather integralist, in that the country has never had socially influential religions that exist apart from the state. The author, Tokihisa Sumioto (Tokyo Institute for Global Peace and Humanity), appears to argue that Japan should chart a new path. Looks interesting. Here’s the publisher’s description:

Japan had developed a secular civilization long before going through its modern period, characterized by the officially-sanctioned unification of nationalism and state-worship that reached its apotheosis during World War II, followed by the economic growth-oriented post-war period. While the relationship between religion and state has varied significantly over time, what has been consistently observed throughout Japan’s history is the absence of religions that are socially influential but independent from the state, or the absence of a dualistic relationship between religion and state. The kind of political ethos that should underpin democratic principles such as the rule of law and human rights has remained underdeveloped. 

This book examines the concept of “reconstructive postmodernism,” a perspective that has emerged from a normative approach to international relations that emphasizes the need to democratize and humanize the secularistic civilizations based on the reconstruction of spirituality and religiosity. Using this concept, this book offers a number of implications of its findings to the case of Japan and for global governance in the post-secular age more broadly. 

Posted on by Mark Movsesian

Religious Accommodations: A New Comparative Study

Religious accommodations pose difficult questions for liberalism, since they require the balancing of two principles that are fundamental to it: freedom of conscience and equality before the law. A new book from Bloomsbury, Religious Accommodation and Its Limits, approaches the topic from a comparative perspective. The author is Farrah Raza (Pembroke College, Oxford). Here is the publisher’s description:

On what grounds should religious accommodation claims be limited? When do religious claims harm the autonomy of others?

This book proposes an original model of religious accommodation which can be applied in secular liberal democracies where religious diversity has been a hotly contested issue. Addressing the complex question of limitations to the right to Freedom of Religion or Belief and how these limitations might be determined, it examines how religious claims can harm the autonomy of others and emphasises the need for an appropriate balancing of competing interests. Drawing on a range of case study examples from jurisdictions including the US, Canada, the European Court of Human Rights, the European Union’s Court of Justice, the UK, Germany and France, this is a timely contribution to the debate on how a legal duty or policy approach in favour of religious accommodation can be applied in practice. Moreover, the proposed model offers criteria that may be used to guide the implementation of equality and diversity policies in contexts such as employment and education. The book will be of interest to academics, legal practitioners and policy-makers in the field.

Posted on by Mark Movsesian

A New Collection on Islam in Europe

The idea that Europe, at least Western Europe, is “post Christian” is not a new one. The phrase typically means that Christianity no longer is the default option for Western Europeans. In the new Europe, Christianity is just one of many religious and non-religious commitments out there. One such commitment, of course, is Islam, the religion of millions of people who live in Western Europe today. A new collection from Bloomsbury, Islam, Religious Liberty, and Constitutionalism in Europe, explores the challenges that Islam poses to church-state relations in contemporary Europe. The editors are our friend Mark Hill (Cardiff University) and Lina Papadopoulou (Aristotle University of Thessaloniki); one of the contributors is our friend and Tradition Project member, Andrea Pin (Padova). Looks very worthwhile. The publisher’s description follows:

For centuries, since the Roman Empire’s adoption of Christianity, the continent of Europe has been perceived as something of a Christian fortress. Today, the increase in the number of Muslims living in Europe and the prominence of Islamic belief pose questions not only for Europe’s religious traditions but also for its constitutional make up. This book examines these challenges within the legal and political framework of Europe. 

The volume’s contributors range from academics at leading universities to former judges and politicians. Its twenty chapters focus on constitutional challenges, human rights with a focus on religious freedom, and securitisation and Islamophobia, while adopting supranational and comparative approaches. 

This book will appeal not merely to law students in the United Kingdom and the European Union, but to anyone involved in diplomacy and international relations, including political scientists, lobbyists, and members of NGOs. It explores these contested relationships to open up new spaces in how we think about religious freedom and co-existence in Europe and the crucial role that Islam has had, and continues to have, in its development.

Posted on by Mark Movsesian

Communalism in the Indian Constitution

Liberalism privileges the individual and teaches that the state is legitimate when it honors individual rights–including the right to religious freedom. A much older understanding conceives the polity in terms of communities, including religious communities, and teaches that the state has a duty to coordinate relations among them justly. An interesting-looking new book from Cambridge, India’s Communal Constitution: Law, Religion, and the Making of a People, argues that both understandings prevail in contemporary India: a formal liberalism and a practical communalism. The author is constitutional scholar Mathew John (Jindal Global Law School, India). Here is the description from Cambridge’s website:

This book speaks to debates on law, constitutionalism, and the contested terrain of political identity in modern India. Set against the overwhelmingly liberal design of the Indian Constitution, the book demonstrates a tendency in the Constitution and its practice to identify the Indian people in parochial and communal terms. This tendency is identified as India’s Communal Constitution and its imprint on contemporary constitutional practice is illustrated by drawing on the constitutional practice as it addresses religious freedom, personal law, minority rights and the identification of caste groups. Thus, casting the Constitution and its practice as a field of contest, the aspiration to define the Indian people as a community of individual citizens is brought face to face with its antagonists. The most significant of these antagonists is the tendency to cast the Indian people as a collection of communities which this book examines and details as India’s Communal Constitution.

Posted on by Mark Movsesian

A New Book on the Founding of Israel

According to observers who know much more about the situation than I, the debate over judicial reform in Israel suggests a profound struggle over the country’s basic character as a Jewish and democratic state. Israel’s founders thought they could have it both ways–that a political religious identity could exist together with secular pluralism in a creative tension. The events of this summer show that the balance is becoming harder. A new book from Cambridge University Press, Israel’s Declaration of Independence: The History and Political Theory of the Nation’s Founding Moment, discusses the perhaps unsustainable vision of the people who founded the Jewish State. The authors are Neil Rogachevsky (Yeshiva University) and Don Zigler. Here is the publisher’s description:

Israel’s Declaration of Independence brings to life the debates and decisions at the founding of the state of Israel. Through a presentation of the drafts of Israel’s Declaration of Independence in English for the first time, Neil Rogachevsky and Dov Zigler shed new light on the dilemmas of politics, diplomacy, and values faced by Israel’s leaders as they charted the path to independence and composed what became modern Israel’s most important political text. The stakes began with war, state-building, strategy, and great power politics, and ascended to matters of high principle: freedom, liberty, sovereignty, rights, and religion. Using fast-paced narration of the meetings of Israel’s leadership in April and May 1948, this volume tells the astonishing story of the drafting of Israel’s Declaration of Independence, enriching and reframing the understanding of Israel’s founding and its ideas – and tracing its legacy.

Posted on by Mark Movsesian

Confucian Common Goodism

Here in the West, some scholars are reviving an older, pre-liberal conceptions of politics that can be grouped under the heading of common good constitutionalism. At the heart of most of these conceptions, all of which are quite controversial, is a natural-law approach, deriving from Western sources like Aristotle and Christian, often specifically Catholic, sources. A new book from Oxford addresses common-good politics from a very different cultural perspective, Confucianism. Looks interesting. The book is Confucian Constitutionalism: Dignity, Rights, and Democracy, by political theorist Sungmoon Kim (City University of Hong Kong). Here is the publisher’s description:

Ongoing debates among political theorists revolve around the question of whether the overarching goal of Confucianism–serving the people’s moral and material wellbeing–is attainable in modern day politics without broad democratic participation. One side of the debate, voiced by Confucian meritocrats, argues that only certain people are equipped with the moral character needed to lead and ensure broad public wellbeing. The other side, voiced by Confucian democrats, argues that unless all citizens participate equally in the public sphere, a polity cannot attain the moral growth that Confucianism emphasizes.

Written by one of the leading voices of Confucian political theory, Confucian Constitutionalism presents a constitutional theory of democratic self-government that is normatively appealing and politically practicable in East Asia’s historically Confucian societies, which are increasingly pluralist, multicultural, and rights sensitive. While Confucian political theorists are preoccupied with how to build a Confucianism-inspired institution that would make a given polity more meritorious, Sungmoon Kim offers a robust normative theory of Confucian constitutionalism–what he calls “Confucian democratic constitutionalism”–with special attention to value pluralism and moral disagreement.

Building on his previous theory of Confucian democracy, Kim establishes egalitarian human dignity as the underlying moral value of Confucian democratic constitutionalism and derives two foundational rights from Confucian egalitarian dignity–the equal right to political participation and the equal right to constitutional protection of civil and political rights. He then shows how each of these rights justifies the establishment of the legislature and the judiciary respectively as two independent constitutional institutions equally committed to the protection and promotion of the people’s moral and material wellbeing, now reformulated in terms of rights. Aiming to contribute to both political theory and comparative law, Confucian Constitutionalism explains how Confucian democratic constitutionalism differs from and improves upon liberal legal constitutionalism, political constitutionalism, and Confucian meritocratic constitutionalism.

Posted on by Mark Movsesian

On the Autonomy of Religious Communities

Marc has written before about the rise of what he calls the “Australian School” in law and religion, a group of scholars, many fairly young, which “offers justifications for religious freedom rooted in theological considerations.” Marc identifies Alex Deagon (Queensland University of Technology) as a member of this school. Earlier this year, Bloombsury published Deagon’s latest work, A Principled Framework for the Autonomy of Religious Communities: Reconciling Freedom and Discrimination, which takes a comparative perspective and argues for “a peaceful coexistence of difference which supports both religious freedom and equality.” Here’s the description from the publisher’s website:

This book engages in a theological critique of the legal frameworks and theoretical approaches of Australia, the US and England to create a peaceful coexistence of difference which supports both religious freedom and equality.

It develops a new framework for reconciling religious freedom and discrimination in Western liberal democracies and presents a unique approach to practically supporting both religious freedom and equality as fundamentally important objectives which promote more compassionate and cohesive communities.

The book applies the idea of peaceful coexistence of difference by assuming the dignity and goodwill of different people and perspectives, and proceeds upon shared virtues such as love which are affirmed by all.

Posted on by L&R Forum

International Moot Court Competition in Law and Religion

Here’s an announcement for a very worthwhile moot court competition in comparative law and religion in Milan this fall. I’ve had the honor of judging the competition in past years and can attest that it’s a unique and fun event for everyone concerned. Law students who are interested in the topic should seriously consider fielding a team! For more info, follow the links — MLM

After many successful editions, the International Moot Court Competition in Law and Religion is moving this year to Milan, Italy!

The Seventh Edition of the Program will run from September 18 to September 19, 2023, in Milan, Italy.

Teams from, within, and outside Europe will argue a case before the European Court of Human Rights and the Supreme Court of the United States. Pre-eminent scholars and actual judges from the two jurisdictions will sit as judges of the two Courts.

Have a look here, for a glimpse of the past editions, where Teams from the United States, Russia, the UK, and Italy gathered together and plead before prominent Judges.

The new case and all the details on the Competition will available soon for download at https://mootcourtmilano2023.wordpress.com/.

Stay tuned and do not miss a terrific opportunity to engage in a global conversation on Law and Religion!

Teams and individuals willing to participate in the program should email mcmilano2023@gmail.com

Posted on by Mark Movsesian

Worldly Politics and Divine Institutions

From the beginning, when we started this center a dozen years ago (time flies!), one of the subjects we have most wanted to study is comparative law and religion. The US is not the only country to have to negotiate the competing demands of church and state, and observing how other countries manage those demands can be instructive.

A new book from Oxford University Press looks to be a worthy edition to the area: Worldly Politics and Divine Institutions: Contemporary Entanglements of Faith and Government, by political scientist Nashon Perez (Bar Ilan University). The book covers four of the cases that we have discussed here at the Forum and in Legal Spirits podcasts over the years. Here’s the description of the book from the publisher’s website:

The institutional entanglement of religion and government takes many forms, including direct governmental funding of religious associations, legal recognition, and governmental endorsement of religious symbols in public spaces. The entanglement of church and state remains contentious in many democratic countries today. In fact, in Europe and North America, there are a growing number of instances of governments becoming entwined with religious matters.

Worldly Politics and Divine Institutions explores the entanglement of religion and government in a comparative analysis of four cases within democratic countries: the British Jewish Free School (JFS) case, in which the U.K. Supreme Court forced a government-funded faith school to change its admission policies; The European Court of Human Rights decision in Martinez, in which the Catholic church kept its right to dismiss religion teachers within the Spanish public school system; The Lautsi case, in which the Italian government successfully defended its policy of mandating a crucifix in all public school classrooms – at the European Court of Human Rights; and the case of the Bladensburg World War I Memorial (often called the Peace Cross) in Maryland, in which the U.S. Supreme Court ruled that the cross’s public placement and maintenance funding does not violate the non-establishment clause of the First Amendment. Perez describes how these cases create complex, hybrid religious-statist institutions and outlines a novel framework for understanding these cases.