Posted on by

Tebbe (ed.), “Religion and Equality Law”

This June, Ashgate Publishing will publish Religion and Equality Law edited by Nelson Tebbe (Brooklyn Law School). The publisher’s description follows.

The essays selected for this volume address topics at the intersection of religion and equality law, including discrimination against religion, discrimination by religious actors and discrimination in favor of religious groups and traditions. The introduction provides a conceptual guide to these types of inequality – which are often misunderstood or conflated – and it offers an analysis of different species of discrimination within each broad category. Each section of the volume contains both theoretical essays, which set out frameworks for thinking about the relevant type of inequality, and essays that examine real-world disputes. For example, the articles address the conflicts over headscarf laws in France and Turkey, the place of so-called traditional religions in Africa, the display of Roman Catholic crucifixes in Italian classrooms, and the ability of American religious organizations to be free of employment laws in their treatment of clergy. This volume brings together classic articles which are otherwise difficult to access, enables students to study key articles side-by-side, and provides instructors with a valuable teaching resource.

Posted on by

Pei on Burqa Bans and the European Court of Human Rights

Sally Pei (Yale University Law School) has posted Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights. The abstract follows.

Over the past decade, Europe has been the site of strident debates over integration and Islam. One major pole of controversy is the trend toward enacting legislation to prohibit Islamic veils from public places. Laws banning face coverings, already in force in France and Belgium, are under consideration in a number of European countries, including the Netherlands, Italy, and Switzerland. The laws raise fundamental questions about what it means to be French, Belgian, Dutch, or indeed European. But the bans are of special interest for another reason: They provide a likely testing ground for the nascent nondiscrimination jurisprudence of the European Court of Human Rights (“the Court”), and a potential opportunity to bolster legal safeguards against discrimination at the regional level.

The laws might seem to invite an obvious challenge on the grounds that they deny the right to religious freedom guaranteed by Article 9 of the European Convention. But previous cases addressing restrictions on religious dress have sharply narrowed that avenue for redress. This Comment argues, however, that Article 14 nondiscrimination claims can fill that void. The Court’s Article 14 jurisprudence has long been criticized for its limited scope and application, but a recent line of cases in the education context evinces the emergence of a new doctrinal approach to discrimination. Properly applied and reinforced, that case law could mature into a general analytical framework for addressing the claims likely to arise from anti-burqa legislation and other discriminatory measures.

Posted on by Mark Movsesian

Calabresi and Salander on Religion and the Equal Protection Clause

Here’s an important new paper,  Religion and the Equal Protection Clause, arguing that the Fourteenth Amendment independently forbids state action that discriminates on the basis of religion, even without incorporation of the First Amendment’s Establishment and Free Exercise Clauses. Steve Calabresi (Northwestern) and a student co-author defend this novel claim by looking to the Fourteenth Amendment’s original meaning. They also reference trends in foreign constitutional and international human rights law. (Originalism and comparative constitutionalism – there’s an unusual combination). The wide-ranging and provocative paper also argues that public education, as currently funded, is unconstitutional. Here’s the abstract:

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter on the basis of religion. We defend our argument that the Fourteenth Amendment bans Read more

Posted on by Mark Movsesian

District Court Dismisses Muslims’ Suit Against FBI Under State Secrets Doctrine

A federal district court in California ruled Tuesday that the state secrets doctrine precludes a religious-discrimination lawsuit local Muslims had filed against the FBI. Plaintiffs alleged that the FBI had violated their constitutional and civil rights by conducting “an indiscriminate ‘dragnet'” that “gathered information about them and other innocent Muslim Americans in Southern California” solely on the basis of their religion. Specifically, they alleged that the FBI had employed a covert operative to conduct surveillance of mosques and Muslims in southern California. The court ruled that litigation of plaintiffs’ claims would “require or unjustifiably risk disclosure of secret and classified information regarding the nature of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies.” The court made its decision, with obvious reluctance, on the  basis of Attorney General Eric Holder’s formal invocation of the state secrets privilege and the court’s own “skeptical” examination of the FBI’s public and classified, ex parte, submissions. Plaintiffs, represented by the ACLU, plan to appeal. The case is Fazaga v. FBI, 2012 WL 3327092 (C.D. Cal., Aug. 14, 2012).

Posted on by

Garnett on Religious Discrimination

Richard W. Garnett (Notre Dame Law School) has posted Religious Freedom and the Nondiscrimination Norm. The abstract follows.

“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take regulatory and other steps to prevent, discourage, and denounce it. However, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it even when it is. Some wrongs are beyond the authorized reach of government policy; some are too difficult or costly to identify, let alone regulate; others are none of the government’s business.

When we say that “discrimination” is wrong, what we actually mean is that wrongful discrimination is wrong, and when we affirm that governments should oppose it we mean that governments should oppose it when it makes sense, all things considered, and when it is within their constitutionally and morally limited powers to do so. To label a decision or action “discrimination” is simply to note that one factor or another was or will be taken into account in the course of a decision; it is to invite, but not at all to answer, the questions whether that decision or action was or would be wrong, and whether the public authority may or should forbid or discourage it.
Read more

Posted on by Mark Movsesian

Hatzis on Religious Discrimination

Nicholas Hatzis (Oxford) has posted Personal Religious Beliefs in the Workplace: How Not to Define Indirect Discrimination, on SSRN. The abstract follows.

Religious discrimination occurs when a person is treated less favourably because of her religion. In cases of indirect discrimination the claimant needs to demonstrate that an otherwise neutral measure has caused her to suffer a particular disadvantage which people with different religious beliefs did not suffer. In Eweida v. British Airways the Court of Appeal held that personal religious beliefs which are not part of official religious dogma cannot be relied upon as a basis for a claim of indirect discrimination. The article argues that this is an erroneous interpretation of anti-discrimination law. It discusses, first, the reasoning in Eweida; then, it examines the treatment of personal religious beliefs in other cases in Britain and the United States; finally, it places the issue in a human rights framework.

Posted on by

Aziz on Terror(izing) the Muslim Veil

Sahar F. Aziz (Texas Wesleyan University School of Law) has posted Terror(izing) the Muslim Veil. The abstract follows.

The September 11th terrorist attacks transformed the meaning of the Muslim headscarf. No longer is the crux of the debate whether the “veil” is used to oppress women by controlling their sexuality, and by extension, their personal freedoms and life choices. Rather, a Muslim headscarf “marks” her as a representative of the suspicious, inherently violent, and forever foreign “Terrorist other” in our midst.

In the post-9/11 era, Muslim women donning a headscarf find themselves trapped at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women’s rights organizations, or civil liberties Read more

Posted on by

Howard on the Expanding Scope of Religious Discrimination Law in the EU

Erica Howard (Middlesex University) has posted EU Equality Law: Three Recent Developments. The abstract follows. – JKH

This article analyses three recent developments within the EU that have an impact on EU equality legislation: the coming into force of the Treaty of Lisbon, the Proposal to extend the material scope of the provisions against discrimination on the ground of religion and belief, disability, age and sexual orientation beyond the area of employment, and the case lawof the European Court of Justice regarding the EU Equality Directives of 2000. It will assess whether these three developments have led to improved protection against discrimination for people in the EU.

Posted on by Marc O. DeGirolami

Catholic Church v. Obama Administration

This is an interesting article in the Washington Post from two days ago about the increasing conflict between the Obama Administration and the Catholic Church.  The story specifically discusses the withdrawal of the anti-human-trafficking contract that I discussed here.  The article reports that apparently there was some internal dissent within the Department of Health and Human Services from career staffers about the politicization of the decision, based in part on a very favorable neutral report on the Church’s prior administration of the contract.  There is some suggestion that the USCCB would sue the Administration, though I wonder what the suit would allege. — MOD

Posted on by

Lund on The New Victims of the Old Anti-Catholicism

Christopher C. Lund (Wayne State University Law School) has posted The New Victims of the Old Anti-Catholicism.  The abstract follows. – ARH

This short piece examines four modern church-state cases which span the First Amendment spectrum. The plaintiffs are religiously diverse — one is a Wiccan, one is a Muslim, one is an evangelical Protestant, and one is an atheist. Unsurprisingly, their claims find support in very different political communities. But the plaintiffs in these cases all have certain things in common. They are all, in their own ways, religious minorities. All of their legal cases were ultimately lost. And most importantly for our purposes, each of their cases connects deeply with the nineteenth century history of anti-Catholicism in this country.

In various ways, Catholics of that century were mistreated by the Protestant majority. The injustices they faced were sanctioned by courts as well as legislatures, and legal rules were created to render their injuries both judicially noncognizable and socially invisible. Our four modern plaintiffs are, in some ways, latter-day Catholics. They suffer some of the same injustices; indeed, they are often inhibited by the some of the very same legal doctrines created to repress the Catholic minority over a century ago. We can think of these four plaintiffs as the new Catholics — or, to put it more accurately, as the new victims of the old anti-Catholicism. As we struggle with our twenty-first century challenges of religious pluralism, it helps to realize how much our struggles have in common with earlier ones. Perhaps, armed with this knowledge, we can do a bit better now than our forefathers did then.