Around the Web

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

Around the Web

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

Hambler, “Religious Expression in the Workplace and the Contested Role of Law”

In November, Routledge Press will release “Religious Expression in the Workplace and the Contested Role of Law” by Andrew Hambler (University of Wolverhampton, UK). The publisher’s description follows:

The workplace is a key forum in which the issue of religion and its position in the public sphere is under debate. Desires to observe and express religious beliefs in the workplace can introduce conflict between employees and employers. This book addresses the role the law plays in the resolution of these potential conflicts.

The book considers the definition and underlying motives of religious expression, and explores the different ways it may impact the workplace. Andrew Hambler identifies principled responses to workplace religious expression within a liberal state and compares this to the law applying in England and Wales and its interpretation by courts and tribunals. The book determines the extent to which freedom of religious expression for the individual enjoys legal protection in the workplace in England and Wales, and asks whether there is a case for changing the law to strengthen that protection.

The book will be of great use and interest to scholars and students of religion and the law, employment law, and religion and human rights.

“Religious Broadcasting in the Middle East” (Hroub, ed.)

If you are promoting a political and legal blueprint for society, it helps to have a media outlet. Islamists in the Middle East have become very adept at using media networks to advance their aims. In Egypt, for example, the Muslim Brotherhood operates its own TV station, Misr25. A new collection  of essays from Columbia University Press, Religious Broadcasting in the Middle East (2012), investigates Muslim, Christian, and Jewish religious programming in the Middle East. The collection is edited by Khaled Hroub (Cambridge). The publisher’s description follows:

Religious broadcasting in the Middle East has benefited tremendously from new transnational media networks and the widespread availability of satellite broadcasting technology. Dozens of Muslim, Christian, and Jewish religious channels are now on air, advocating different forms of religiosity and shaping public perceptions through dialogue and debate. Mainstream news channels, such as Al-Jazeera and Al-Arabiya, broadcast popular religious programming, in some cases filled with highly politicized content. Others feature more apolitical commentary and are concerned only with preaching God’s word.

The Middle East’s highly-charged religious and political ferment has certainly been propitious for such broadcasters as they seek to convey their message. This has, in turn, reinforced the link between the dominant “religious atmosphere” and religious broadcasting. Monitoring the content-analysis of some of the region’s most influential religious channels and programs, the contributors to this volume provide pioneering insights into the Middle East’s burgeoning religious media market. They explore the themes, discourses, appearances, and “celebrities” of this rapidly expanding phenomenon and how its complex dynamics have transformed the region and the world.

Jury Nullifies Charges Against Rastafarian Accused of Growing Marijuana

Last week, a New Hampshire jury nullified criminal charges brought against a 59 year-old Rastafarian accused of growing 15 marijuana plants near his home.  The defendant, Doug Darrell, claimed that the marijuana was used as part of his religious practices. The defense attorney sought a jury nullification instruction and it was granted by Belknap County Superior Court Judge James O’Neill. According to one report, the judge gave the following instruction: “Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.” The marijuana plants were spotted by a National Guard helicopter as part of a coordinated operation with NH State Police.

This case raises questions as to whether jury nullification is a viable way to protect the rights of religious minorities from criminal prosecution. Read one way, this case may suggest that jury nullification is a tool for local communities to protect the rights of such minorities from the unintended consequences of a generally applicable law. Rastafarianism is by no means a popular religion in the US (I daresay this is especially true in the Granite State), and I doubt that NH legislators had the religion in mind when they passed the law prohibiting marijuana possession. Yet a group of twelve citizens decided not to apply the neutral, generally applicable law (see Employment Division v. Smith) because it substantially burdened one adherent’s beliefs.

Read another way, jury nullification only worked here because of a number of other factors, unrelated to Mr. Darrell’s religion. In fact, one juror stated that Mr. Darrell’s religion had nothing to do with the jury’s decision. One cannot ignore, for example, the fact that this case involved a criminal act many people are familiar with and do not consider wrongful (i.e. growing marijuana for personal use). I wonder if the jury would have nullified had Mr. Darrell been a member of the Santeria religion charged with animal cruelty (see Church of Lukumi Babalu Aye v. City of Hialeah). Another aspect is the personal story involved. Mr. Darrell is a 59 year-old, mild-mannered man who has been married for 38 years and has 4 grown children, who are “successful in their fields.” Again, I wonder if the jury would have nullified had Mr. Darrell been a loud, unrepenting agitator, arrested while picketing military funerals (See Snyder v. Phelps).

Jury nullification, therefore, seems like one way to protect religious minorities from prosecution. However, whether a jury will actually do so depends much less on the lofty ideals of respect for religious freedom or diversity and more on the mundane issues of familiarity and likeability.

Censoring the Internet in India

I wrote in February about India’s crackdown on religiously offensive speech on the internet. In response to lawsuits in Indian courts, Facebook and Google have removed images that allegedly cause offense to Hindus, Muslims, and other religious communities. In The Atlantic this week, Max Fisher writes that the censorship issue is again getting attention, with the US State Department calling on India to respect the “full freedom of the internet.” Fisher wonders, though, whether India doesn’t have reason to clamp down. A long-standing dispute between Hindus and Muslims in Assam has recently reignited, fueled by rumors on the internet that each side was planning to massacre the other. Eighty people have already been killed, and 300,000 displaced. Religious hate speech on  the internet hasn’t caused this crisis, of course, but it has contributed to it. What is the Indian government to do? Fisher writes:

Walter Russel Mead, writing on the ongoing crisis, called India’s long-running communal tensions “the powder keg in the basement.” With the already-dangerous risk of ethnic combustion heightened by a population with easy access to rumors and an apparent predisposition to believing them, maybe that powder keg justifies Indian censorship. Or maybe it doesn’t; free speech is its own public good and public right, and, in any case, censoring discussion of such sensitive national issues could make it more difficult for India to actually confront them. This is just one of the many difficult questions that Indian leaders will grapple with as hundreds of thousands of their citizens flee their homes, chased out by “a swirl of unfounded rumors.” I don’t envy them.

Supreme Court Declines to Hear Candy-Cane Case

The Supreme Court yesterday refused to hear a Fifth Circuit case involving the First Amendment rights of public elementary school students to discuss religion with other students and to distribute religious items, including religiously-themed candy-canes and pencils with messages such as “Jesus is the Reason for the Season,” and “Jesus loves me, this I know, for the Bible tells me so.”

The en banc Fifth Circuit held that students do have such rights, but that the public school administrators who had barred the students from exercising their rights had qualified immunity from suit because the rights were not clearly established.

The (rather long) en banc opinion is Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).

Keeping Thanks in Thanksgiving

This Thursday, Americans celebrate Thanksgiving, a national holiday that commemorates a meal the Pilgrims shared with their Native American neighbors in the Plymouth colony almost 400 years ago. It is, at least in origin, a religious holiday; the “thanks” are being “given” to God. Yet Thanksgiving does not cause the dissension that official Christmas commemorations sometimes do in America, probably because it is not clearly tied to a particular faith tradition.

Starting with George Washington, American Presidents customarily have issued Thanksgiving Day proclamations, although the secular-minded Thomas Jefferson famously declined. Traditionally, Presidents call on Americans — to quote one of Bill Clinton’s proclamations — “to express heartfelt thanks to God for our many blessings.” Separationist purists object to this sort of thing, which may violate some versions of the Supreme Court’s endorsement test, but the proclamations really do fall within the American tradition of public religious expression.

Last week, President Barack Obama issued his Thanksgiving Proclamation for 2011. In many respects, including its references to God, it’s quite traditional. In one respect, though, it’s not.  In addition to thanking God, President Obama encourages us to “thank each other” for the blessings we enjoy. A subtle redefinition of the holiday? An example of a new secularism in America? I’m not sure; but I do wonder if this idea of appreciating one another will eventually displace the original, religious meaning of the holiday, much as the celebration of family and friends has displaced, for many, the original meaning of Christmas. Not that I object to expressing appreciation to other people. In fact, in the spirit of the President’s proclamation: Thanks, everyone. You know who you are.

Paris Bans Prayer in Streets

Here’s an under-reported story: starting this month, Paris has banned praying in the streets. The ban apparently results from concerns about crowds routinely overflowing mosques and blocking traffic during Friday prayers. Surprisingly, from an American perspective, the  government is not justifying the ban as a neutral time, place, and manner restriction applicable to all public gatherings.  Rather, according to news reports, the government is justifying the ban as a necessary restriction on religious expression as such. Public prayer “hurts the sensitivities of many of our fellow citizens,” Interior Minister Claude Guéant is quoted as saying. “Praying in the street is not dignified for religious practice and violates the principles of secularism.” The Minister vows that force will be used on Muslims — and adherents of other faiths — who violate the new rule.

I wonder whether the Minister is being quoted out of context. Although it’s certainly reasonable to keep the streets clear, it doesn’t seem reasonable to single out religious gatherings in particular. And, notwithstanding the Minister’s comments, I’m not sure that French secularism, or laïcité, requires such a ban. Laïcité is a complex concept, but both the Conseil d’État and the Conseil Constitutionnel have indicated that, as a legal matter, laïcité does not generally require bans on public religious expression. (For helpful discussions of laïcité as a legal concept, see CLR’s recent symposium, Laïcité in Comparative Perspective, in the Journal of Catholic Legal Studies). Wouldn’t it have made more sense to ban all crowds that block public streets without a permit? One irony: notwithstanding the concern for secularism, the government is allowing one large Muslim congregation that was blocking the streets to use a public fire station for prayers until the congregation can build a bigger mosque. — MLM

Gaudreault-DesBiens on Religious Expression

Jean-François Gaudreault-DesBiens (University of Montreal) has posted a new piece, Religion, Expression, and Freedom: Offense as a Weak Reason for Legal Regulation (in French).  The abstract follows.  — MLM

Some forms of religious expression tend to stir controversy among citizens who share a secular conception of public morality, whether or not they are themselves religious in the ‘private sphere.’ As well, religious individuals are often shocked by expression criticizing their beliefs or desacralizing the religious figures that they worship.

This paper examines some difficult questions raised by the interplay of freedom of expression and freedom of religion. Drawing on Raymond Boudon’s distinction between strong and good reasons, it offers a reflection on the quality of reasons invoked in support of claims demanding the censorship of either public manifestations of religious belief or anti-religious expression, observing that several of them, being neither strong nor good, are more often than not rather weak. It defends the thesis that the equilibrium between the two freedoms cannot be judged in the abstract but must instead be resituated within the particular historical and legal context within which it is established. However, it warns against the creation of double standards between religious expression and anti-religious expression, arguing that if the former is strongly protected, the other should be protected as strongly, irrespective of believers’ offended sensitivities. Secular moralities are no more, but no less, important, than religious ones.