Posted on by Mark Movsesian

Martinez-Torron on Religious Exemptions

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Javier Martínez-Torrón (Complutense) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

The following ideas are not an attempt to cover the entirety and complexity of the issues raised by the claims for the so-called religious exemptions. They just try to emphasize some aspects that are often, in my opinion, not sufficiently considered in legal debates.

1. Taking the right approach

The very title of this session—Religious Exemptions—may be misleading. It obviously refers to situations where there is a conflict between conscience and law, that is, between moral obligations (not necessarily rooted in a religious conscience) and legal obligations. For the purpose of these brief reflections, I will refer to exemptions on moral grounds rather than to religious exemptions, considering that objections on religious and objections on other ethical grounds must be treated equally. In Europe, this type of conflict is often addressed under the term “conscientious objections.”

From my perspective, it is a mistake to analyze these conflicts from the perspective of legal exemptions, emphasizing that some people seek to be exempted from complying with the law on moral grounds (often deriving from religious beliefs). The term “exemption” suggests the existence of a privilege or an anomaly. And I profoundly disagree with the view that conscientious objectors are a “human anomaly” or seek privileged treatment. Such conflicts usually involve people with moral positions different from the majority. To consider that people in a religious/ethical minority are “anomalous” implies a prejudice incompatible with the contemporary notion of fundamental rights. And, certainly, we would not depart from that premise if we were dealing with other characteristics that define people’s identity and way of living, such as sexual orientation, ethnic origin, or physical deficiencies. Just the opposite, we assume that it is important to organize society, and the legal system, in a way that takes such characteristics into account so that those persons are not excluded or treated as second-class—“anomalous”—citizens.

In this regard, it is important to bear in mind two things. First, freedom of religion or belief is part of the applicable law in most countries. It is recognized and protected by international instruments as well as by most national constitutions, with one or other terminology. Such freedom entails not only the right to choose one’s beliefs but also the right to behave in accordance with them; that is, freedom of conscience, the right to act following the supreme rules dictated by one’s moral conscience.

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Posted on by Mark Movsesian

Davidyan on Liberalism and Religion

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Gayane Davidyan (Lomonosov) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

Slightly expanding the problem of our discussion, I will go beyond the borders of the United States and Western Europe, and pose a general question: arising on a certain soil under favorable historical conditions, is liberalism a national phenomenon, inherent only in a particular type of society or state? People with liberal views and values ​​live at all times and across the globe. Even in dark times, in conditions of slavery and serfdom, thinkers wrote about the values ​​of freedom and law; historical figures like Spartak, Emelyan Pugachev fought for this freedom.

As you know, the foundations of modern European liberalism begin to take shape in the 16th-17th centuries. John Locke, in “Two Treatises on Government,” formulates the most important principles that formed the basis of the future political and social liberalism: economic freedom as the possession and use of property, and intellectual freedom, including freedom of conscience. The second principle, in his opinion, is the right to life, personal freedom, and private property. People fought for a long time to obtain and assert these rights and values and are still fighting every day. The most advanced ideas of liberalism had a great influence on Russian reality at the end of the 18th century. Empress Catherine the Great, studying the ideas of Montesquieu, Cesare Beccaria, and Voltaire, wrote an order to the deputies of a special legislative commission in order to change the concept of royal power in Russia. Liberal ideas developed further and led to fairly liberal reforms in the second half of the 19th century. However, the reception of Western European liberal ideas in Russia did not take place. And against the background of a strong absolute monarch, all these reforms seem to be “quasi-reforms.” Does this mean that liberalism as a system of organizing social and state life can form the basis only for some states that have a special specific path of development, a special culture, and other features? I would not agree with this, since the desire for freedom, dignity, and the preservation of life are the basic needs of a person with any worldview, and one can hardly speak here about the advantage of one civilization over another.

But liberalism is not only ideas; it is also necessary that a sufficient social environment exist for their perception. In Russia, it was clearly insufficient. And here, the problem was rooted. The limited social environment made it impossible to realize the liberal concept. This was the reason why ideas remained ideas.

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Posted on by Mark Movsesian

Cavana on Religious Exemptions as a Problem for Liberalism

This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short discussion papers. Professor Paolo Cavana (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

[1] Liberalism, both as a political doctrine and in its historical manifestation, has known several variants. This notwithstanding, there are certainly some common principles underpinning liberalism. Among these, we must include the primacy of the individual and the protection of his freedom against all forms of political oppression. It is no coincidence that liberalism was born and grew, in Europe and in Great Britain, starting from the Protestant Reformation. It represented a reaction to absolute Monarchies and to the concentration of powers they entailed. The different historical events of the United Kingdom and of continental Europe later marked a furrow in the development of liberalism doctrine and in its historical achievements, which also had effects in giving life to the peculiar American constitutional experience.

Among the main factors that marked the development of liberalism and its historical achievements, there is certainly religion, which has always played a fundamental role. Suffice it to say that the two English revolutions of the seventeenth century, which laid the foundations of liberal constitutionalism, were fought by Parliament in the name of religious freedom against the monarchy and its claim to impose a state religion on its subjects. On the contrary, the French Revolution, and the European liberalism that prepared it and followed it, taking into account the tragedy of religious wars, considered the Church and religion as an obstacle to civil and political progress. As such, both would eventually have to be overcome, or at least they were to be kept closed within the private sphere of individual conscience. This gave European liberalism the anti-religious character that has always differentiated it from the Anglo-Saxon one.

More generally, it can be said that European liberalism, which rests its foundations on the absolutist legacy of monarchies and on the theories of Montesquieu and J.J. Rousseau, since its inception, has always fought against social formations (Le Chapelier Act), considered to be a potential diaphragm between the individual and the State and a source of inequality between citizens. On the contrary, English and American liberalism has always viewed social formations – local communities, religious groups, and free associations – as an essential counterweight to the authority of the central State and hence a guarantee for citizens’ freedom.

It should also be noted that it was not religion in the abstract but in the concrete, that is, Christianity, which laid the groundwork for the birth of the liberal doctrine (B. Croce). In fact, neither the ancient world nor other religions or civilizations recognize – like Christianity, which germinated from Judaism, does – the role of human freedom even in the face of God. As a result, the act of faith can only be the fruit of human free choice, which is the very foundation of man’s dignity: “you have made him little less than a god, with glory and honour you crowned him,” says the psalmist (Psalm 8).

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Posted on by Marc O. DeGirolami

Delsol, “The Insurrection of Particularities, Or, How the Universal Comes Undone”

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” with our longtime partner, Università di Roma LUMSA. The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers.

The distinguished political historian and philosopher, Chantal Delsol, gave a keynote address for the conference. We are delighted to publish her talk here. The address is in French, and I link to the original below. With Professor Delsol’s permission, I have translated it for our English speaking readers (the footnotes remain in the original).

Chantal Delsol’s original piece in French can be found hereDownload

The Insurrection of Particularities, Or, How the Universal Comes Undone

Rome, July 8, 2022

Chantal Delsol

1.

On October 18, 2017, the French National Assembly adopted the State Law on Religious Neutrality. Article 11 provides that an accommodation for reasons of religion may be granted if 5 criteria are satisfied: the request is serious; the requested accommodation respects the equality of men and women, as well as the principle of religious neutrality of the State; the accommodation is not excessively constraining; and the requester has actively participated in finding a solution. By the same token, there will be no accommodation with respect to the obligation of all employees of the State to work with their faces uncovered and without wearing any religious sign.

One sees here the extent to which the legislator struggles to preserve as far as possible State neutrality tied to secularism, without actually achieving it, and doing so less and less. We are today on a kind of slope, which is the subject of our conference today: that which was accorded an exception more and more becomes the rule. The Quebecois speak of “reasonable accommodations,” to underline well that one should not surpass the limits of good sense. The example is cited in France of the authorization given for prayer in the streets which stops traffic. So, too, laws forbidding the scheduling of exams for students during the holidays of various religions, which made one journalist say, “soon only February 29 will be left to schedule exams.” The question is in fact posed about the diversity and plurality of exemptions, but that is only a subsidiary question consequent on others. These concessions, which raise a vision of equality solely constituted of privileges, interrogate our vision of the universal, and finally our way of being a society.

Our societies appear more and more to be aggregations of minorities disparate in every respect (they may be social, sexual, religious, or cultural, etc.). And everything happens as if the goal of governments is nothing more than to establish equality among these groups, which, always claiming and becoming indignant about not obtaining enough, monopolize public space. At this point, leaving behind Tocqueville who feared a tyranny of the majority, we could, as Philippe Raynaud put it, [1] fall into a tyranny of minorities.

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Posted on by Mark Movsesian

A New Collection of Essays on Law and Religion

This new collection of essays from Cambridge, Law as Religion, Religion as Law, looks interesting. The basic thrust of the volume is that the demands of law and religion do not oppose one another but, in fact, overlap and complement one another. That’s certainly true sometimes! The editors are scholars David Flatto and Benjamin Porat, both of Hebrew University. The publisher’s description follows:

The conventional approach to law and religion assumes that these are competing domains, which raises questions about the freedom of, and from, religion; alternate commitments of religion and human rights; and respective jurisdictions of civil and religious courts. This volume moves beyond this competitive paradigm to consider law and religion as overlapping and interrelated frameworks that structure the social order, arguing that law and religion share similar properties and have a symbiotic relationship. Moreover, many legal systems exhibit religious characteristics, informing their notions of authority, precedent, rituals and canonical texts, and most religions invoke legal concepts or terminology. The contributors address this blurring of law and religion in the contexts of political theology, secularism, church-state conflicts, and the foundational idea of divine law. This title is also available as Open Access on Cambridge Core.

Posted on by Mark Movsesian · 1 Comment

Next Month in Rome: “Liberalism’s Limits”

Next month in Rome, we’ll celebrate 10 years of cooperation with our colleagues at Universita LUMSA with the latest in our conference series on comparative law and religion: “Liberalism’s Limits: Religious Exemption and Hate Speech.” (Hard to believe we’ve been doing this for 10 years)! The conference description is below and details are here: If you’re in Rome, please stop by and say hello!

Liberal democracies historically have prized autonomy and freedom as fundamental political commitments. In doing so, they also have emphasized the individual’s freedom of religion and freedom of speech as sitting at the core of their political systems. Yet in religious exemption — the right of individuals to receive an accommodation from complying with generally applicable law on the basis of religious scruple — and in what some in these polities call “hate speech” – speech conveying deeply insulting, vilifying, discriminatory views against a target group – liberal regimes face serious challenges to their own core principles. This conference will examine the problems posed by these issues for the continuing viability of liberalism in Western democracies.

Posted on by Mark Movsesian

Movsesian on Courts’ Responses to COVID Restrictions

I’m happy to announce that my essay, “Law, Religion, and the COVID-19 Crisis,” is now available in the Journal of Law and Religion (Cambridge). The essay discusses courts’ responses to COVID restrictions on public worship worldwide, and what the response of American courts indicates about our deep polarization in this country. Here’s the abstract:

This essay explores judicial responses to legal restrictions on worship during the COVID-19 pandemic and draws two lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the United States specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID-19 crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-century pandemic.

Posted on by Mark Movsesian

Law, Religion, and the Covid Crisis

I have a new draft on SSRN, “Law, Religion, and the Covid Crisis,” comparing how courts across the globe have approached restrictions on public worship and exploring what the cases reveal about social divisions, especially in the United States. Here’s the abstract:

This essay explores judicial responses to legal restrictions on worship during the COVID pandemic and draws two lessons, one comparative and one relating specifically to US law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the US, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the US, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the US, specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-lifetime pandemic.

The essay will appear in the forthcoming volume of the Journal of Law and Religion. Comments welcome!

Posted on by Mark Movsesian

Movsesian Named Co-Editor of the Journal of Law and Religion

We are delighted to announce that the Journal of Law and Religion (Cambridge University Press) has named Center Co-Director Mark Movsesian to its board of editors. Professor Movsesian will assist the interdisciplinary, peer-review journal in selecting and developing articles for publication.

“I am grateful for the invitation and am delighted to join the Journal‘s editorial board,” Professor Movsesian said. “I look forward to helping the journal continue to explore issues at the intersection of law and religion, both domestically, in the United States, and across the globe.”

More information about the Journal and its editorial board is here.

Posted on by Mark Movsesian

Moscow State University Roundtable

I was delighted to speak at a roundtable on law and religion at Lomonosov Moscow State University this morning, along with faculty colleagues from Russia, Greece, Canada, Italy and Israel. Comparative studies add so much to the understanding of church-state issues, and it is always striking how the same issues come up in so many cultures–though not the same answers. The questions from other scholars and the student participants were great. Thanks for Prof. Gayane Davidyan at Lomonosov for inviting me!

UPDATE: For anyone interested, Lomonosov has now posted the YouTube Video of the event: