Here’s a writeup (with photos!) on our conference this month in Rome, co-hosted with LUMSA University, on liberalism, religious exemptions, and hate speech regulations. We’ll post papers from the conference in due course. Meanwhile, thanks to the participants: keynoters Cesare Mirabile and Chantal Delsol, and Professors Stephanie Barclay (Notre Dame); Paolo Cavana (LUMSA); Gayane Davidyan (Lomonosov); Richard Ekins (Oxford); Monica Lugato (LUMSA); Adelaide Madera (Messina); Javier Martínez-Torrón (Complutense); Marco Olivetti (LUMSA); Andrea Pin (Padua); Jeffrey Pojanowski (Notre Dame); Angelo Rinella (LUMSA); Steven Smith (San Diego); and Kevin Walsh (Catholic University of America).
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.
Here are some important law-and-religion news stories from around the web:
- On Thursday, the Trump administration announced an expanded “conscience rule” that would protect health care workers who oppose abortion, sterilization, and other medical procedures on religious or moral grounds.
- The Kantor Center for the Study of Contemporary European Jewry released its antisemitism worldwide report for 2018, reporting an increase in “almost all forms of anti-Semitic manifestations.”
- State legislators in Massachusetts have proposed removing “so help me God” from its oath.
- Quebec’s government prepares to adopt the most strict secularist bill in Canada, preventing government employees from wearing religious symbols “in performance of their duties.”
- Congressional leaders have asked to intervene in the case after the Department of Justice said it would not appeal a federal judge’s decision to declare a female genital mutilation law unconstitutional after members of an Indian Muslim sect were prosecuted under the law.
- President Trump, at the White House National Day of Prayer dinner, called on Americans to use the power of prayer to end violence and protect religious liberty.
- Vice President Pence delivered remarks in the Rose Garden to mark the National Day of Prayer, averring that President Trump is a champion and defender of faith and religious liberty.
- According to the Anti-Defamation League’s annual Audit of Anti-Semitic incidents, 2018 saw anti-Semitic assaults double and the deadliest attack against the Jewish community in American history.
- According to a British report, the persecution of Christians is fast becoming genocide and the faith will soon disappear in certain areas of the world.
- Alberta’s highest court upheld the dismissal of an injunction against gay-straight alliances brought by two dozen faith-based schools, parents, and advocacy groups after they claimed they impinge on their religious beliefs.
- Human rights groups and Muslim organizations are urging U.S. Muslims to boycott products made in China, where authorities have cracked down on Uighurs.
- The Sri Lankan town of Negombo has been put under curfew after escalating violence between Muslims and Christians in the wake of the Easter Sunday suicide bombings.
- Midwives and other health care providers are filing lawsuits against physician-only laws that preclude them from performing abortions.
- Facebook banned, among others, Louis Farrakhan, the leader of the Nation of Islam, for violating its ban on “dangerous individuals.”
In this second episode of a two-part podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss the private dimension of the control of “religious hate speech.” What, if anything, can public authorities do to intervene in the private arena? They focus on speech on private university campuses and discuss two basic constitutional rules: first, the rule governing the freedom of speech and associational freedom protecting private universities from government regulation; and second, the doctrine of “unconstitutional conditions” that affects the way in which the government can condition the granting of money dependent upon private universities’ compliance with government policies and interests. They also consider the social and cultural effects of the existing legal framework, discussing along the way some of the recent controversies on campuses involving disinvitations and exclusions of certain points of view and perspectives because of their allegedly “hateful” qualities. Listen in!
In this first episode of a two-part podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss government regulation of “religious hate speech.” They break down the concept into three categories–speech that denigrates religion as such; speech that threatens imminent violence against believers; and speech that insults or denigrates believers on the basis of religion–and explain how our law currently addresses each of them. They explore the possibility that American courts will abandon their traditional hostility to hate-speech regulation and the line-drawing problems that would follow. Listen in!
Here are some important law-and-religion news stories from around the web:
- The head of the federal government’s Office of Faith-Based and Neighborhood Partnerships has resigned after controversy erupted over statements he had made about African Americans and Muslims.
- A museum dedicated to the Bible has opened in Washington, D.C.
- Turkey’s foreign minister claimed that the U.S. justice system has been infiltrated by followers of Fethullah Gulen, the exiled Muslim cleric often blamed by the Erdogan government for fomenting unrest in Turkey.
- The U.S. Supreme Court has sent a case involving New Mexico’s Blaine Amendment back to state court in light of the Court’s ruling in Trinity Lutheran.
In May, Oxford University Press will release Atrocity Speech Law: Foundation, Fragmentation, Fruition by Gregory S. Gordon (Chinese University of Hong Kong). The publisher’s description follows:
Hate speech is widely considered a precondition for mass atrocity. Since the rise of international criminal tribunals after World War II and the development of international criminal law, defendants have been prosecuted for individual speech acts connected to gross human rights violations under charges that have coalesced into direct and public incitement to commit genocide; persecution as a crime against humanity; and instigation. The resulting jurisprudence has been fragmented and confused, and existing scholarship has been focused on particular tribunals or situations. The splintered rulings give inadequate notice to would-be hate speakers as to what speech is prohibited, which weakens prevention efforts and leads to inconsistent results. This is especially problematic considering ongoing atrocity speech prosecutions across the International Criminal Tribunal for Rwanda.
This book is the first comprehensive study of the international law encompassing hate speech. Prof. Gordon provides a broad analysis of the entire jurisprudential output related to speech and gross human rights violations for courts, government officials, and scholars. The book is organized into three parts. The first part covers the foundation: a brief history of atrocity speech and the modern treatment of hate speech in international human rights treaties and judgments under international criminal tribunals. The second part focuses on fragmentation: detailing the inconsistent application of the charges and previous prosecutions, including certain categories of inflammatory speech and a growing doctrinal rift between the ICTR and ICTY. The last part covers fruition: recommendations on how the law should be developed going forward, with proposals to fix the problems with individual speech offenses to coalesce into three categories of offense: incitement, speech-abetting, and instigation.
Professor Steve Shiffrin is an enormously thoughtful scholar of the First Amendment. He is a constant and welcome reminder to me that alignment in political views is in the end rather minor indeed in the greater scheme of scholarly affinity and insight. My own work has been very much influenced by Steve’s even as his politics and my own differ in various ways.
Steve has a smart post on the religious accommodation controversy. In it, he picks up a theme that has characterized some of his work on the Speech Clause–that is, its arguably indefensible modern scope. He writes:
Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.
Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our Constitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).
It’s an interesting set of questions. For more on the reasons for the decrease in broad American social investment in religious freedom by comparison with free speech, see Part IV of this paper (and in particular my friendly wager with Professor John Inazu about whether it is, or is not, only a matter of time before the Speech Clause suffers a similar fate).
Earlier this month, Penguin Books India agreed to recall and destroy copies of a book by American scholar Wendy Doniger, The Hindus: An Alternative History. Penguin did so in order to settle a four-year old lawsuit by a Hindu activist group, Shiksha Bashao Andolan, alleging that publication violated Indian law, which forbids insulting the religious beliefs of a class of citizens. In a statement, Penguin maintained that it had an obligation “to respect the laws of the land in which it operates, however intolerant and restrictive those laws may be.” Doniger concurred, stating that Indian law is “the true villain of this piece.”
The main complaint seems to be that Doniger’s book presents a hypersexualized, distorted version of Hinduism. Here’s Shiksha Bashao Andolan’s president, Dinanath Batra, in a Time magazine interview, describing what his group finds objectionable:
Doniger says [in the book] that when Sanskrit scriptures were written, Indian society favored open sexuality. The jacket of her book shows Lord Krishna sitting on the buttocks of nude women. She equates the shivlingam, worshipped all over India by millions, with sex and calls it an erect penis. She calls Gandhiji strange and says he used to sleep with young girls.
What I find most interesting in this controversy is the incomprehension each side has for the other. The activists, with Indian law on their side, think they are striking a blow for cultural and religious freedom. They are standing up to tactless outsiders who mock sacred things. Most Western observers, by contrast, are simultaneously repulsed and amused at the notion that people would find Doniger’s book off-putting and actually try to stop its publication. The activists must be rubes and obscurantists. The condescension comes through very clearly in the questions Time put to Batra, including the last one: “Don’t you worry that your objections might seem outdated in today’s modern world?” Batra’s answer is revealing, too: “We are not against modernity, but we are against westernization.”
Once again, we see the conflict between the values of WEIRD cultures–Western, Educated, Industrialized, Rich, and Democratic–and those of more traditional societies. WEIRD cultures stress individual expression and fulfillment; traditional cultures value authority, community, and sacredness. To someone from a WEIRD perspective, it’s impossible to believe that serious people could be morally outraged by Doniger’s book, or think destroying the book a proper response. By contrast, people embedded in a traditional Hindu culture find Doniger’s interpretation disgraceful and foreign–an insult that should not be borne.
Of course, cultures aren’t uniform. Some Indians have WEIRD values; some Westerners are traditionalists. Some well-known Indian writers objected to Batra’s lawsuit; here in the US, the Hindu American Foundation issued a statement basically endorsing Penguin’s decision. But, on the whole, the WEIRD/Traditionalist divide is a useful way to understand our world. It explains many current controversies, like blasphemy prosecutions in Pakistan, proposals to ban circumcision in Scandinavia, anti-homosexuality laws in Africa, and the dispute over Doniger’s book.
As I’ve written before, it seems to me that three possibilities exist. First, WEIRD values will come to dominate worldwide. WEIRD culture has many benefits, and America projects it around the world relentlessly, through movies, advertising, the Internet, and so on. Second, Western culture will become less WEIRD. This could happen, too, especially if large numbers of people from traditional societies immigrate to the West. Third, and most likely, WEIRD and non-WEIRD cultures will continue to face off against one another for the foreseeable future, with inevitable clashes and occasional compromises. Buckle your seat belts.
Living in New York City, one develops a taste for irony. This past week, residents were treated to an unusually good display. In remarks at the UN on Tuesday, President Barack Obama gave an eloquent defense of American free speech principles, which prohibit government from restricting religiously offensive speech as long as there is no threat of imminent violence. Government may state its own views, however, and President Obama roundly condemned, on behalf of the US Government, “The Innocence of Muslims,” that “crude and disgusting video” that has “sparked outrage throughout the Muslim world.” In a widely quoted passage, the President declared,
The future must not belong to those who slander the Prophet of Islam. But to be credible, those who condemn that slander must also condemn the hate we see in the images of Jesus Christ that are desecrated, or churches that are destroyed, or the Holocaust that is denied.
Now, as it happens, at a swanky gallery near where President Obama was speaking, an exhibition of Andres Serrano’s Piss Christ, the infamous photograph of a crucifix submerged in a glass of urine, was under way. Neither President Obama nor anyone else in his administration, as far as I know, thought that credibility required them to condemn this particular example of religiously offensive speech. Why not? Because, of course, nobody was complaining about it, much less rioting. (That’s not quite Read more