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Kalanges, “Religious Liberty in Western and Islamic Law”

This month, Oxford University Press published Religious Liberty in Western and Islamic Law: Toward a World Legal Tradition (February 2012) by Kristine Kalanges (American University). The publisher’s description follows.

In Religious Liberty in Western and Islamic Law: Toward a World Legal Tradition, Kristine Kalanges argues that differences between Western and Islamic legal formulations of religious freedom are attributable, in substantial part, to variations in their respective religious and intellectual histories. Kalanges suggests that while divergence between the two bodies of law challenges the characterization of religious liberty as a universal human right, the “dilemma of religious freedom” – the difficult choice between the universality of religious liberty rights and peaceful co-existence of diverse legal cultures – may yet be transformed through the cultivation of a world legal tradition. This argument is advanced through comparative analysis of human rights instruments from the Western and Muslim worlds, with attention to the legal-political processes by which religious and philosophical ideas have been institutionalized.

Posted on by Mark Movsesian

Administration Did Not Consult Justice Department on Revised Contraception Mandate

I’m sure some readers will think of this as inside baseball, but it’s actually rather revealing. In response to questioning from Orrin Hatch (R-Utah) at yesterday’s Senate Finance Committee hearing, HHS Secretary Kathleen Sibelius admitted that HHS had not sought a legal opinion from the Justice Department before issuing last week’s “compromise” mandate on employer contraceptives coverage. Here’s the exchange, as relayed by the Deseret News, a Utah paper:

“The President’s chief of staff and press secretary have claimed that this mandate is consistent with the First Amendment, and the final rule you issued last Friday states that it is consistent with the First Amendment and the Religious Freedom Restoration Act . . . . Let me just ask you again, did HHS conduct or request any analysis of the constitutional or statutory religious freedom issues?” Hatch asked Sebelius. . . .

“Well we certainly had our legal department look at a whole host of legal issues,” Sebelius said.

Sebelius also acknowledged that she had not contacted the Justice Department for an opinion, which would be a common practice when facing a delicate constitutional question.

Hatch asked her, “Did you ask the Justice Department?”

“I did not. No sir,” she replied.

As the report suggests, executive departments and agencies routinely request the advice of the Justice Department on proposed regulations that implicate serious constitutional and statutory questions. In fact, a specific office at Justice, the Office of Legal Counsel, handles such requests, often on an urgent, rush basis (I know, I used to work there). So it really is remarkable that HHS did not seek OLC’s views on legal questions of this magnitude. It suggests that the Administration does not take these questions seriously, an attitude that may come back to haunt it — after the November election, of course.

Posted on by Marc O. DeGirolami

The Taming of Employment Division v. Smith

When Employment Division v. Smith was decided, it had committed opponents and supporters.  Opponents claimed that it represented the end of free exercise; supporters argued that at long last, the Court adopted an appropriately equal, predictable, and univocal principle of free exercise which limited the scope of its political interventions.  There was disagreement about the wisdom of Smith (including in Congress, which reacted negatively to Smith with some statutes), but few doubted that Smith was a very big deal for constitutional religious liberty.

CLR Forum readers will know that Smith carved out various exceptions to the rule that neutral laws of general application are constitutional.  The first exception dealt with the idea of hybrid rights.  The idea was that a less than independently viable free exercise claim, when coupled with another constitutional right of uncertain strength, would become viable.  Lower courts have adopted various interpretations of this exception: some have treated it as non-binding dicta, while others have tried to operationalize it in various ways.  The second exception has proved to be far more important: where the law at issue is not truly a law of general application — where a system of individualized assessments with respect to exemption from the law has been adopted — then the law is again subject to strict scrutiny.  I’ve looked into the question of how much, and how often, lower courts are using this exception (and I also inquired a bit about the extent to which litigants are using it).  It turns out…a whole lot.  Indeed, the latest example of the application of the individual assessment exception appears in a case reported by my colleague, Mark, just below, and just decided in the Sixth Circuit, where Judge Sutton held that a student who was dismissed from a counseling program because she refused on religious grounds to counsel homosexual couples and non-married couples could proceed with her claim.  The court held that the school’s “no referral to other counselors” policy was not one of general application, because referrals for secular reasons had been permitted.  For more on the case, see Mark’s item below.  You might wonder just how powerful the individualized assessment exception is…you will have to wait for my book to see just how much!  For the third exception…follow the jump!

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Posted on by Marc O. DeGirolami · 4 Comments

Classic Revisited: Smith, “Foreordained Failure”

Today’s classic revisited is Steven D. Smith’s book, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995).  If I were constructing a top all-time list of law and religion works, this book would surely make my top 3.  The book is a classic in the law and religion canon because it is really the first explicitly to resist the notion that the religion clauses were meant to protect any single principle or value at all.  They instead reflected a compromise among people who thought very differently about the proper relationship of church and state.  The book is partially historical and partially theoretical; the latter sections examine the possibility of an “unprincipled” approach to religious liberty, and what it would look like.

As with all of Smith’s work, the book is a model of clear, accessible, and always insightful writing.  If you are looking for a lucid book which will appeal equally to people who have studied these issues and a more generally educated audience, this is it.  More than this, Smith’s book has inspired a rising generation of new writers (I count myself in this group) to explore themes which he was the first to illuminate.  Here’s just a brief portion (at 11-12) to give you a rough feel for the book’s quality:

[W]e might acknowledge that there is no single or self-subsisting “principle” of religious freedom; there is only a host of individuals with a host of different opinions about how much and what kind of scope government ought to give to the exercise of religious beliefs and practices.  Aquinas’s views on this subject were different from Cromwell’s; Cromwell’s were different from Madison’s.  But all these figures believed in some version of religious freedom; they believed, that is, in giving some scope to divergent religious beliefs or practices.  And it is simply misleading to suppose that there is a univocal principle of religious freedom, hovering in some Platonic realm independent of these different opinions — a principle of which the opinions of Aquinas, Cromwell, and Madison were more or less faithful copies.

It is important to clarify how this more pluralistic approach to the question differs from an approach that at least tacitly conceives of religious freedom as a unitary principle or singular ideal.  In acknowledging a variety of versions of religious freedom, we can still insist that some opinions about the proper scope of religious freedom are more attractive, or more rationally defensible, than others.  I might believe, for example, that the arguments for the positions I take on the issues of religious freedom are more persuasive than the arguments for the positions taken by Cromwell — or Justice Brennan.  This disagreement, however, merely entails the familiar sort of debate about whose arguments are stronger or whose position is more attactive or plausible.  There is little to be gained by trying to frame the debate as one about who really perceives the true meaning of “the principle of religious freedom.”  Consequently, although I might assert that those who disagree with me are “wrong” or that their arguments are “weak” or “implausible,” I would have no justification at all for saying, for example, that they have failed to understand the very principle that they purport to respect or that in professing to respect that principle they are being thoughtless or hypocritical.

Likewise, a more pluralistic approach to religious freedom would not prevent us from discerning in Western history a kind of progress toward the achievement of more complete religious freedom.  This characterization might simply mean that current notions of religious freedom allow greater scope for diverse religious conduct and belief.  It might also mean that we think the reasons supporting current opinions are more plausible than those invoked in behalf of earlier views.  Conversely, it is unnecessary and potentially misleading to say that “the principle” of religious freedom was somehow implicit in but inadequately expressed by earlier positions, or that Western history reflects an ongoing, ever more perfect realization of the principle of religious freedom.

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Lobeira on Neutrality in European Public Schools.

Pablo Cristóbal Jiménez Lobeira (Centre for European Studies (ANU); Centre for Applied Philosophy & Public Ethics (CSU)) has posted Public Schools and Crucifixes: What Kind of Neutrality? – Reflexions on the Principle of Secularism in a Plural Europe. The abstract follows.

Lautsi v Italy attracted widespread attention in Europe and beyond. At stake were different conceptions of neutrality of the modern secular state. Though the contention was about a Christian symbol, the European Court’s ruling has consequences for other religions and worldviews present in Europe today. This paper will review different ways in which neutrality can be understood according to the “immanent frame” (Taylor). It will analyze secularism as statecraft and as worldview (Casanova). It will explore the role of religion in the European public sphere in a “post-secular age” (Habermas). Furthermore, it will study the concept of tolerance as inclusion of plurality in the context of Europe’s constitutional traditions than as indifference about, or even hostility towards religion (Weiler). Finally, I will propose an understanding of neutrality in the public sphere that enables interculturalism among the European citizens, and arguably the success of the European Union as an analogical polity.

Posted on by Marc O. DeGirolami

Equality and (Religious) Liberty

An interesting story in The Guardian about Oxford professor Roger Trigg, whose new book we noted here.  The story discusses Professor Trigg’s views about the state of religious liberty in Great Britain and, in his view, the trumping power of the value of equality, as well as the sorts of inquiries courts are making about religious centrality and sincerity.  Indeed, there seem to be two themes in the story — the need to balance conflicting values and the question of who should be charged to balance them.  A bit from the story:

In his latest book, Equality, Freedom and Religion, Roger Trigg, who runs the Centre for the Study of Religion in Public Life at Kellogg College, argues: “There has been a clear trend for courts in Europe and North America to prioritise equality and non-discrimination above religion, placing the right to religious freedom in danger.”

He cites a number of recent cases, including that of Lillian Ladele, the Islington registrar who refused to conduct civil partnerships because of her religious beliefs. In that case, he says, “the need to respect the right to equality trumped the freedom of religious convictions”.

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Posted on by Marc O. DeGirolami

Sarah Posner’s Muddle

The occasions are rare when I find much to agree with in the columns of Sarah Posner, a writer for the blog “Religion Dispatches.”  But this particular column is a mess. 

The especially messy portion that I want to highlight is the discussion of the connection between the ministerial exception case, Hosanna-Tabor v. EEOC, and the recent decision of the Obama Administration to make permanent a rule which will require various religious employers  to provide their employees with health plans which cover services and products with which they have objections of religious conscience.  Posner says:

The Beckett [sic] Fund for Religious Liberty, which, as I reported in my long religious freedom piece, represents both a Catholic college and an evangelical university in challenging the rule, has issued a statement (tellingly calling the rule an “abortion drug mandate”) claiming that the rule will not withstand constitutional scrutiny. As other observers have noted, opponents of the contraception mandate have claimed that the Supreme Court’s recent decision in EEOC v. Hosanna-Tabor, which recognized a “ministerial exception” that prevents churches from being sued by “ministerial” employees under federal employment discrimination laws. [sic] The Beckett Fund makes this argument in its statement [sic], but legal observers have noted the narrow holding in that case. The opponents of the Obama administration decision like the Beckett [sic] Fund does in its statement, will attempt to make the Hosanna-Tabor into a broad statement against government interference in church affairs in an attempt to bolster their claims against the contraception mandate.

The second sentence in this paragraph is ungrammatical, so it is opaque to me what Posner means.  “Opponents of the contraception mandate”…claim what exactly?  They don’t seem to be making any claim about Hosanna-Tabor in the second sentence.  There is also a citation to the Becket Fund (as in Sir Thomas of Becket, not Samuel Beckett) and a document which it has produced purporting to challenge the contraception mandate by making an argument from the ministerial exception.  Could someone point me to the place where the Becket Fund makes that connection?  Or could someone point me to the place where anyone — anywhere — has made the claim that the holding in Hosanna-Tabor can be extended to “a broad statement against government interference in church affairs” which would render the contraception mandate unconstitutional?  I’ve been poring through documents about this issue on the Becket Fund site, and have not found any making this completely dubious connection.  Who, other than Posner in this column, is saying this?

UPDATE: Though the Becket Fund has not made the argument referenced by Posner, I am apprised that Matthew Franck at First Things makes a connection between Hosanna-Tabor and the contraception mandate in this post.  Franck says that Hosanna-Tabor stands for the view that “in the internal governance of religious organizations, the First Amendment permitted no government interference.”  Respectfully, that is not what the Court held.  The Court held that when it comes to hiring and retention decisions of those employees defined as “ministers” (however defined), anti-discrimination laws which apply to secular institutions do not automatically apply to religious organizations.  The case was narrowly limited to employment discrimination suits “brought on behalf of a minister.”  There is nothing in this holding which would apply to the contraception mandate.  It may be that the connection between the Hosanna-Tabor decision and the contraception mandate case is, as Franck also says, that the Obama Administration in both cases is taking hard-line and extreme positions.  But that is not a legal connection.

Posted on by Mark Movsesian

Military Allows Chaplain to Keep Beard

This morning, Rabbi Menachem Stern, a Chabad Lubavitch rabbi, will join the U.S. Army Chaplain Corps. It wasn’t always clear he could. Like other Hasidic Jews, Rabbi Stern interprets a passage from Leviticus to require men to wear beards. Army regulations generally forbid beards. Rabbi Stern sued, arguing that the no-beards rule, as applied to a Hasidic Jew like him, violated the Free Exercise Clause. The Army settled the case and granted Stern a waiver, as it has done for Sikh and Muslim soldiers whose religious beliefs also require them to wear beards.

I haven’t seen Rabbi Stern’s complaint, but I imagine he relied heavily on then-Judge Alito’s famous decision in Fraternal Order of Police v. City of Newark (3d Cir. 1999), which struck down a police department’s no-beards rule. The rule exempted police officers who grew beards for medical reasons, but not those who grew beards for religious reasons. Alito concluded that denying an exemption for religious reasons, while allowing an exemption for secular reasons, violated the Free Exercise Clause. Like the police department regulations in Fraternal Order of Police, Army regulations appear to allow soldiers to wear beards if a medical condition requires it.

Posted on by Marc O. DeGirolami

Levy-Rubin, “Non-Muslims in the Early Islamic Empire”

A very interesting-looking and deeply researched book by historian Milka Levy-Rubin (Hebrew University of Jerusalem), Non-Muslims in the Early Islamic Empire: From Surrender to Coexistence (CUP 2011), traces the ways in which conquered religious minorities were and were not accommodated in the Islamic state.  The book is therefore not only of historical interest, but may also illuminate our own struggles with religious accommodation in new and unexpected ways.  The publisher’s description follows.

The Muslim conquest of the East in the seventh century entailed the subjugation of Christians, Jews, Zoroastrians, and others. Although much has been written about the status of non-Muslims in the Islamic empire, no previous works have examined how the rules applying to minorities were formulated. Milka Levy-Rubin’s remarkable book traces the emergence of these regulations from the first surrender agreements in the immediate aftermath of conquest to the formation of the canonic document called the Pact of ‘Umar, which was formalized under the early ‘Abbasids, in the first half of the ninth century. What the study reveals is that the conquered peoples themselves played a major role in the creation of these policies, and that these were based on long-standing traditions, customs, and institutions from earlier pre-Islamic cultures that originated in the worlds of both the conquerors and the conquered. In its connections to Roman, Byzantine, and Sasanian traditions, the book will appeal to historians of Europe as well as Arabia and Persia.

Posted on by Mark Movsesian

Wardle on Marriage and Religious Liberty

Lynn Wardle (BYU) has posted Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions, on SSRN. The abstract follows.

The purpose of this paper is to consider how the legal regulation of marriage impacts upon religious liberty, and vice versa, and how to reconcile conflicts between religious liberty and state marriage regulations. It is an area of increasing conflicts in a growing number of nations. Using comparative law, this article presents the range and complexity of state-versus-religion conflicts and of systemic legal approaches concerning the regulation of marriage that exist in the world today, focusing specifically on two issues: the formation/celebration of marriage generally, and the legalization of same-sex marriage. Having shown the scope of the conflicts between religious and political communities regarding the regulation of marriage, this article argues that the body of law known as “conflict of laws” provides a valuable model for the resolution of church-state disputes regarding the regulation of marriage.

This paper focuses on two communities that claim sovereignty over individuals: the State and religion. Conflicts between religions and states concerning their respective regulatory policies may create internal cognitive dissonance for religious communities and for states. Thus, there would seem to be internal harmony incentives to find a solution to avoid disputes. However, these incentives may be offset, neutralized, or overcome if there are communities within the state that wish to harm or reduce the influence of the religious community