Around the Web

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

Tradition and Going Topless

Earlier this week, I had a post at the Liberty Law site on a recent Seventh Circuit decision in the GoTopless case, a challenge to Chicago’s public nudity ordinance, which forbids women, but not men, to remove their tops in public. The majority maintained that the city’s interest in promoting traditional norms justified the ban, but the dissent disagreed, arguing, among other things, that the city was simply promoting outdated cultural stereotypes.

Here’s an excerpt from my post on the case:

Judge Sykes’s opinion suggests that, even after cases like Obergefell, Lawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.

Second, Judge Rovner’s dissent suggesting that the law should follow biology rather than culture is misleading. Of course rules regarding public nudity are a cultural phenomenon. Culture is, among other things, a reflection on human biology; different cultures have different perceptions. In some cultures women appear topless in public; in others they do not. Allowing women to appear topless in public is not to substitute biology for culture, but rather to replace one culture with another—a culture that sees public nudity as appropriate for one that does not. Perhaps that is a good idea, but it has little to do with the objective facts of biology.

You can read the whole post here.

Osanloo on Gender, Honor, and Compensation in Iranian Criminal Sanctioning

Arzoo Osanloo (U. of Washington) has posted When Blood Has Spilled: Gender, Honor, and Compensation in Iranian Criminal Sanctioning. The abstract follows. NB: The full article is behind a pay wall.

This article explores the gender implications of retributive punishment in Iran’s criminal justice system with specific attention to the Islamic mandate of forgiveness. Iranian penal codes allow victims’ families to forgive an offender through forbearance of their right of retribution. To mitigate or even cancel the retributive component of punishment in numerous crimes, including murder, defendants usually offer compensation. Through a study of the gendered logics of criminal sanctioning, forbearance, and compensation, this article brings to light some of the issues victims’ families and defendants face. In doing so, this article explores the debates around one of the formal gender gaps in Iranian laws, unequal compensation in sanctioning, where the amount of reparation for the loss a woman’s life is legally half that of a man’s. Because of this, some accounts of Islamic criminal processes suggest that female family members are helpless victims or nonactors in legal negotiations. By studying how gendered social relations operate in Iran’s criminal legal process, this article finds women playing key roles in family decisions to forgive or not. The examination of judicial processes, moreover, reveals some of the complexity of gender relations, which are not fixed, as static legal texts might suggest.

Mautner on Excluding Women from Torah Study

One of the many things that worries secular liberals about the revival of religion — assuming a revival is really occurring — is the traditionalism of the religious worldview. Since the Enlightenment, liberalism has taught that the individual must be free to  determine for himself, without the interference of tradition or traditional authority,  the meaning of existence and his place in the universe (see, e.g., Planned Parenthood v. Casey). The religious worldview rejects this idea. The meaning of the universe is determined by God, and wisdom lies in discovering His plan and accepting the place He has assigned you in it. (Of course, religions differ on the details of the plan!) There are important qualifications, of course. Liberalism doesn’t think people should just do what they want, and traditionalism doesn’t think that everything must always remain the same. But much of the tension between secular liberals and religious conservatives can be traced to these different premises.

Menachem Mautner (Tel Aviv University – Buchman Faculty of Law) has posted an interesting-looking piece that explores this tension in the context of Jewish law, or, more precisely, the study of Jewish law: A Dialogue between a Liberal and an Ultra-Orthodox on the Exclusion of Women from Torah Study. Here’s the abstract:

This is a fictive dialogue between a liberal and an ultra-Orthodox on the exclusion of women from Torah study. The dialogue begins with a lengthy discussion of the highly intricate preliminary problems of understanding and normatively evaluating the practices of another culture. The Liberal argues that the exclusion of women from Torah study precludes them from fully realizing the intellectual potential that lies within them, i.e., it denies them reaching the height of their human flourishing. It also implies that ultra-Orthodox women are regarded as having lesser moral worth than men.

The ultra-Orthodox argues that whereas modernity is premised on the denial of any status bestowed by tradition in the life of a person, for the ultra-Orthodox tradition has a binding force: it embodies God’s imperatives as to the good life, together with the ways these imperatives have been interpreted throughout the generations by Halakhic sages. Torah study is a religious imperative (mitzvah) that under the accepted tradition is Read more

Bano, “Muslim Women and Shari’ah Councils”

This month, Palgrave Macmillan will publish Muslim Women and Shari’ah Councils: Transcending the Boundaries of Community and Law by Samia Bano (University of Reading Law School, U.K.). The publisher’s description follows.

Drawing upon original empirical data and critiquing existing research material this book challenges the language of community rights and claims for legal autonomy in matters of family law. It draws upon critiques of power, dialogue and positionality to explore how multiples spaces in law and community both empower and restrict women at different times and in different contexts. It also opens up the conceptual space in which we can see in evidence the multiple legal and social realities in operation, within the larger context of state law, liberal multiculturalism and the human rights discourse. In this way the book provides an important contribution to current debate on the use of privatized and ADR mechanisms in family law matters while analyzing the dynamics of relationality and cultural diversity in new forms of mediation practices. In a wider context it explores the conceptual challenges that the rise of a faith-based dispute resolution process poses to secular/liberal notions of law, human rights and gender equality.

Mehdi, Menski & Nielsen (eds.), “Interpreting Divorce Laws in Islam”

This November, Djof Publishing will publish Interpreting Divorce Laws in Islam edited by Rubya Mehdi (University of Copenhagen), Werner Menski (University of London) & Jorgen S. Nielsen (University of Copenhagen).  The publisher’s description follows.

The focus of this anthology is on exploring how equality in the right to divorce of Muslim men and women is interpreted within different judical and theoretical frameworks. Analyzing the difference between legislation and judical processes is also a subject. The legislation on this matter varies between several Muslim countries. The book represents these variations with a broad selection of contributors. Furthermore, the book highlights the dilemmas for Muslim women when facing Muslim divorce law in western countries, where the legislation typically is mixed with other systems of law.

Krivenko on the Islamic Veil and Gender Equality

Ekaterina Yahyaoui Krivenko (University of Montreal – Faculty of Law) has posted The Islamic Veil and its Discontents: How Do they Undermine Gender Equality. The abstract follows.

The article addresses the use of notions of gender equality and non-discrimination in the discussions concerning the practice of Islamic veiling by the European Court of Human Rights as well as by French authorities in relation to the recent adoption of the law banning full face veils in public spaces in France. The author argues that the use of the rhetoric of gender equality without the required knowledge and understanding of the justifications for and discussions about this practice existing within Islam is in both cases very inadequate and leads to results opposite to those they intended to promote. Based on insights into the discussions of Muslims about the practice of veiling the author makes some proposals for a more adequate approach to this practice both from the point of view of women’s status as well as from the point of view of relationship between Islam and the West.


No More “Back of the Bus” in Israel

From Reuters yesterday, an article about a recent protest against segregated seating on public buses in Jerusalem. A group of women entered Bus No. 56 through the front door and sat in the front seats. The problem is that No. 56 runs through an ultra-Orthodox neighborhood that frowns on the public mixing of the sexes. In fact, until very recently, women on Bus No. 56 were told to enter through the rear door and sit in the back. Only this year, the Israeli Supreme Court ruled that women traveling on public buses cannot be told to sit in the back, and signs now say that people have a right to sit wherever they want. Segregation continues, however. Whatever secular law requires, many ultra-Orthodox Jews in Jerusalem — and not only men, according to the article — believe that the Torah forbids the mixing of men and women on buses; other Torah experts dispute this. The author draws on the protest to highlight the increasingly bitter divide between secular and religious Jews in Israel. – MLM

Solanki on Religious Family Laws in India

Gopika Solanki (Carelton University, Ottawa) has published Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India (Cambridge 2011). A description follows. — MLM

How do multireligious and multiethnic societies construct accommodative arrangements that can both facilitate cultural diversity and ensure women’s rights? Based on a study of legal adjudication of marriage and divorce across formal and informal arenas in contemporary Mumbai, this book argues that the shared adjudication model in which the state splits its adjudicative authority with religious groups and other societal sources in the regulation of marriage can potentially balance cultural rights and gender equality. In this model the Read more