Waldron, “One Another’s Equals”

Arguably, the most important value in human rights law in the West today is equality. (Dignity is a close contender). Equality, however, is a comparative concept; one must first decide whether things are like one another before one can decide whether they must receive equal treatment. So, one what basis can we say that persons are alike, such that the law should treat them equally? The imago Dei is one obvious answer; the human capacity for reason is another. NYU law professor Jeremy Waldron discusses these sources and others in a new book from Harvard University Press, One Another’s Equals: The Basis of Human Equality. Here’s the description from the Harvard website:

9780674659766-lgAn enduring theme of Western philosophy is that we are all one another’s equals. Yet the principle of basic equality is woefully under-explored in modern moral and political philosophy. In a major new work, Jeremy Waldron attempts to remedy that shortfall with a subtle and multifaceted account of the basis for the West’s commitment to human equality.

What does it mean to say we are all one another’s equals? Is this supposed to distinguish humans from other animals? What is human equality based on? Is it a religious idea, or a matter of human rights? Is there some essential feature that all human beings have in common? Waldron argues that there is no single characteristic that serves as the basis of equality. He says the case for moral equality rests on four capacities that all humans have the potential to possess in some degree: reason, autonomy, moral agency, and the ability to love. But how should we regard the differences that people display on these various dimensions? And what are we to say about those who suffer from profound disability—people whose claim to humanity seems to outstrip any particular capacities they have along these lines?

Waldron, who has worked on the nature of equality for many years, confronts these questions and others fully and unflinchingly. Based on the Gifford Lectures that he delivered at the University of Edinburgh in 2015, One Another’s Equals takes Waldron’s thinking further and deeper than ever before.

Alidadi, “Religion, Equality and Employment in Europe”

In June, Hart Publishing will release “Religion, Equality and Employment in Europe: The Case for Reasonable Accommodation,” by Katayoun Alidadi (Bryant University).  The publisher’s description follows:

The management of religious and ideological diversity remains a key challenge of our time, deeply entangled with debates about the nature of liberal democracy, 9781509911387equality, social cohesion, minorities and nationalism, foreign policy and even terrorism. This book explores this challenge at the level of the workplace in Europe. People do not surrender their religion of belief at the gates of the workplace, nor should they be required to do so. But what are the limits of accommodating religious belief in the work place, particularly when it clashes with other fundamental rights and freedoms? Using a comparative and socio-legal approach that emphasises the practical role of human rights, anti-discrimination and employment protection, this book argues for an enforceable right to reasonable accommodation on the grounds of religion or belief in the workplaces in Europe. In so doing, it draws on the case law of Europe’s two supranational courts, three country studies–Belgium, the Netherlands and the UK–as well as developments in the US and Canada. By offering the first book-length treatment of the issue, it will be of significant interest to academics, policy-makers and students interested in a deeper understanding of European and Western inclusion, freedom and equality in a multicultural context.

Pearson, “Proportionality, Equality Laws and Religion”

In March, Routledge will release “Proportionality, Equality Laws and Religion:  Conflicts in England, Canada and the USA,” by Megan Pearson (University of Southampton).  The publisher’s description follows:

This book considers how the law should manage conflicts between the right of religious freedom and that of non-discrimination on the grounds of sexual 9781472456502orientation. These disputes are often high-profile and frequently receive a lot of media attention and public debate. Starting from the basis that both these rights are valuable and worthy of protection, but that such disputes are often characterised by animosity, it contends that a proportionality analysis provides the best method for resolving these conflicts. The work takes a comparative approach, examining the law in England and Wales, Canada and the USA and examines four main areas of law, considering how a proportionality approach could be used in each. The book will be an invaluable resource for students and researchers in the areas of Public Law, Human Rights Law, Law and Religion, Discrimination Law, and Comparative Law.

“Religion and Equality” (Durham & Thayer, eds.)

In June, Routledge released “Religion and Equality: Law in Conflict,” edited by W. Cole Durham, Jr. (Brigham Young University) and Donlu Thayer (Brigham Young University).  The publisher’s description follows:

This volume presents an analysis of controversial events and issues shaping a rapidly changing international legal, political, and social landscape. Leading scholars and 9781472459152experts in law, religious studies and international relations, thoughtfully consider issues and tensions arising in contemporary debates over religion and equality in many parts of the world. The book is in two parts. The first section focuses on the anti-discrimination dimension of religious freedom norms, examining the developing law on equality and human rights and how it operates at international and national levels. The second section provides a series of case studies exploring the contemporary issue of same-sex marriage and how it affects religious groups and believers. This collection will be of interest to academics and scholars of law, religious studies, political science, and sociology, as well as policymakers and legal practitioners.

Llewellyn & Sharma, “Religion, Equalities, and Inequalities”

This month, Routledge releases “Religion, Equalities, and Inequalities,” by Dawn Llewellyn (University of Chester) and Sonya Sharma (Kingston University London).  The publisher’s description follows:

Presenting cutting edge research on how religion can confront and obscure social inequalities in everyday life, Religion, Equalities and Inequalities argues that when 9781472439963religion is left out of social scientific analyses, it can result in incomplete analyses that conceal pathways to social inclusion and exclusion. Bringing together an international and interdisciplinary group of contributors who operate at the vanguard of theoretical and empirical work on how social structures of power, institutions and bodies can generate equalities and inequalities in religion, the collection shows how religion can enable and challenge the inequities that affect people’s everyday lives. Academics and students of religious studies, sociology, politics and social policy will all find this book offers useful insights into the relationship between religion and contemporary culture.

Skaria, “Unconditional Equality”

This month, the University of Minnesota Press releases “Unconditional Equality: Gandhi’s Religion of Resistance,” by Ajay Skaria (University of Minnesota).  The publisher’s description follows:

Unconditional Equality examines Mahatma Gandhi’s critique of liberal ideas of freedom and equality and his own practice of a freedom and equality organized image (10)around religion. It reconceives satyagraha (passive resistance) as a politics that strives for the absolute equality of all beings. Liberal traditions usually affirm an abstract equality centered on some form of autonomy, the Kantian term for the everyday sovereignty that rational beings exercise by granting themselves universal law. But for Gandhi, such equality is an “equality of sword”—profoundly violent not only because it excludes those presumed to lack reason (such as animals or the colonized) but also because those included lose the power to love (which requires the surrender of autonomy or, more broadly, sovereignty).

Gandhi professes instead a politics organized around dharma, or religion. For him, there can be “no politics without religion.” This religion involves self-surrender, a freely offered surrender of autonomy and everyday sovereignty. For Gandhi, the “religion that stays in all religions” is satyagraha—the agraha (insistence) on or ofsatya (being or truth).

Ajay Skaria argues that, conceptually, satyagraha insists on equality without exception of all humans, animals, and things. This cannot be understood in terms of sovereignty: it must be an equality of the minor. This equality is simultaneously a resistance: satyagrahis (practitioners) must resist all that obscures absolute equality and do so passively, without sovereignty and in the spirit of absolute equality.

“The Social Equality of Religion or Belief” (Alan Carling, ed.)

I’m pleased to announce that The Social Equality of Religion or Belief, edited by Professor Alan Carling, will be released in SEROBMarch by Palgrave Macmillan and is now available for pre-order. I have a chapter in the book titled, “The Bloating of the Constitution: Equality and the U.S. Establishment Clause,” which, it is probably fair to say, falls on the skeptical side of the book’s contributions. Here are the first few lines of my chapter:

The US Establishment Clause is in disorder. There are currently at least six different approaches to interpreting the ‘establishment’ component of the First Amendment injunction that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” (US Constitution, Amendment 1). Tests of church-state separation, non-coercion, secularity, historical practice, non-endorsement and neutrality all have been used by the Supreme Court at one time or another across a broad panoply of cases. Sometimes two or more of these tests have been squeezed together within a single case, with implied reassurances that the result does not really depend upon the test anyway. At levels below the Supreme Court, this sort of doctrinal bricolage is often only prudent self-protective practice by judges compelled by the Court’s opacity to hedge their bets.

I have argued in other work that these doctrinal confusions are in part the result of the Court’s propensity to elevate a single value to master status in evaluating Establishment Clause controversies (DeGirolami 2013). Dependence on equality or neutrality or separationism as the preeminent constitutional touchstone in one case is felt by the Court to be inadequate or incomplete in a second or third; additional tests are thus cobbled together to accommodate what are perceived in subsequent cases to be distinctive circumstances. Single-value theories of the Establishment Clause misconstrue the conflicts at stake by leveling them – compressing them so as to be capable of processing through the filter of the selected value. Call this phenomenon constitutional flattening. One result of constitutional flattening is the multiplication of Establishment Clause theories to remedy the practical deficiencies in any one of them as they are applied case to case.

This Chapter explores a different side effect of monistic approaches to the Establishment Clause: constitutional bloating – the expansion of the scope of the Establishment Clause without the formality of an actual judicial ruling so expanding it. Courts that rely on an abstract value or interest in deciding constitutional controversies bloat the Establishment Clause by trading covertly on its political popularity, conceptual malleability and indeterminacy of meaning. Merely by recurring to or invoking the selected value – always one with vague but deep rhetorical appeal – courts swell the scope of the Establishment Clause without the need explicitly to acknowledge that expansion in their opinions. The problem is not merely that Establishment Clause bloat renders dubious any claims about the predictability of single-value approaches to constitutional adjudication. It is also that judges are thereby licensed to broaden the reach of the Clause by suggestion, allusion, or implication, without openly and clearly stating what they are doing.

The value of equality is by far the most potent and effective instrument of Establishment Clause bloat. This is so for two reasons: first, equality is the overriding legal value of our age – the defining constitutional issue of our time. The rhetorical power of equality is devastating, eliciting in its most ardent adherents something approaching militant zeal. As Steven Smith has put it, “equality is a juggernaut that overwhelms pundits, politicians, and professors, and threatens to flatten individuals or institutions that dare stand up against it” (Smith 2014). Simply to invoke the value of equality in favor of any given outcome is frequently perceived as a self-evident and irrefutable justification for it, one that it would be scandalous to question. Second, equality is multivalent, and equalities of different types may and often do conflict. Equality of opportunity is not equality of outcome; procedural equality of treatment is not the ambitious equality of ‘concern’ or ‘respect’ for every person’s substantive commitments; and though neutrality is a kind of equality, it is not the only kind. Moreover, there may be internal conflicts even within equalities of the same type. The fearsome cultural, legal and political might of equality, coupled with the multiplicity and ambiguity of egalitarian meanings, have united to create a singularly effective tool of Establishment Clause bloat.

Pantagruel Comes for the Establishment Clause

That is the title of an essay I have up at the Library of Law and Liberty. Here’s the beginning:

In the second book of the sixteenth century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.” When the lawyers and jurists propose to give Pantagruel the relevant texts, writs, historical records, learned treatises, and legal authorities, he orders all of this “scribble-scrabble foolscrap” immediately burned. These materials, he scoffs, are “pure subversions of equity,” for “the law grew up out of the field of natural and moral philosophy.” After a perfunctory hearing and by the light of “philosophical and evangelical justice,” Pantagruel rules with swift panache, and his judgment is hailed as wiser than Solomon’s.

Pantagruel is coming for the Establishment Clause. He comes today bearing the standard of equality, and the manifestations of equality that he would have courts superimpose on the Constitution. In several disputes ostensibly involving the constitutional prohibition on “laws respecting an establishment of religion,” courts are interpreting this provision of the First Amendment to require adherence to a kind of pure principle of equality, or its close cousin, neutrality. And just as Pantagruelic justice beguiled Rabelais’ fictional Parisian intelligentsia, so, too, is the egalitarian justice of today’s courts extolled by the legal professoriate. Yet though certain forms of unequal treatment by the state on the basis of religion surely do create questions of constitutional dimension, we now face something like the obverse situation: courts so rigorously adhere to notions of egalitarian justice that the Establishment Clause is bloated to the point of collapsing of its own weight.

Panel: Freedom of Religion or Belief and Gender Equality (Oct. 30)

In New York on October 30, the NGO Committee on Freedom of Religion or Belief, together with BYU’s International Center for Law and Religion Studies, will host a luncheon and panel discussion on Freedom of Religion or Belief and Gender Equality. Featured speakers include:

  • Heiner Bielefeldt, UN Special Rapporteur for Freedom of Religion or Belief, and author of a new report, “Freedom of Religion or Belief and  Equality Between Men and Women”;
  • Lakshmi Puri, deputy executive director of UN Women;
  • Gulalai Ismail, founder and chairperson of  Aware Girls;
  • Margareta Grape, representative to the UN, World Council of Churches;
  • Tina Ramirez, president, Hardwired.

Details are here.

Law, Religion, and Putin’s Times Op-Ed

Law and religion is not at the very forefront of the rapidly changeable geo-political situation regarding Syria (though, as we have noted here, it is certainly in the immediate background). But somehow, some way, law and religion managed to make its way into Russian President Vladimir Putin’s New York Times editorial (which the Times decided to title, “A Plea for Caution From Russia“), printed on no less exceptional a date than September 11. After condemning “the language of force” (at least when used by the United States) and praising the newly emergent “growing trust” that marks his “working and personal relationship with President Obama,” Putin saw fit to throw a final rhetorical body-blow against American exceptionalism by deploying the language of law and religion:

I carefully studied [Obama’s] address to the nation on Tuesday. And I would rather disagree with a case he made on American exceptionalism, stating that the United States’ policy is “what makes America different. It’s what makes us exceptional.” It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation. There are big countries and small countries, rich and poor, those with long democratic traditions and those still finding their way to democracy. Their policies differ, too. We are all different, but when we ask for the Lord’s blessings, we must not forget that God created us equal.

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