Posted on by Mark Movsesian

White House Issues Statement on Iran Apostasy Trial

The White House issued a statement this afternoon condemning the conviction of Evangelical Pastor Yousef Nadarkhani for apostasy by an Iranian court. Having refused three times to recant his adult conversion to Christianity, Nadarkhani is now subject to execution. Some reports suggest that the authorities will commute the death-penalty sentence, but that is unclear at this writing. The White House’s statement follows. — MLM

The United States condemns the conviction of Pastor Youcef Nadarkhani.  Pastor Nadarkhani has done nothing more than maintain his devout faith, which is a universal right for all people.  That the Iranian authorities would try to force him to renounce that faith violates the religious values they claim to defend, crosses all bounds of decency, and breaches Iran’s own international obligations.   A decision to impose the death penalty would further demonstrate the Iranian authorities’ utter disregard for religious freedom, and highlight Iran’s continuing violation of the universal rights of its citizens.  We call upon the Iranian authorities to release Pastor Nadarkhani, and demonstrate a commitment to basic, universal human rights, including freedom of religion.

Posted on by Mark Movsesian

Iranian Pastor Faces Death Penalty for Apostasy

From Terry Mattingly at GetReligion, this troubling story: Rev. Yousef Nadarkhani, an Evangelical pastor in Iran, is facing execution for apostasy. Nadarkhani converted to Christianity as an adult. Although he never was a practicing Muslim, he has Muslim ancestry — which means, according to the Iranian courts, that his conversion qualifies as apostasy, a capital offense. Under the Iranian courts’ reading of Islamic law, Nadarkani must be given three public opportunities to renounce his apostasy  before being subject to the death penalty. He has already refused twice to return to Islam; his third opportunity comes in an Iranian court this week, after which he may be executed. Mattingly criticizes the media for failing to cover this story, after all the attention given to the American hikers Iran released earlier this week. — MLM

Posted on by Marc O. DeGirolami · 2 Comments

Another Problematic European Law

In addition to the Paris street prayer ban, Religion Clause blog discusses a situation in Lancashire, in which the police told the owner of a private business, the Salt and Light Coffee House, that the display of various Bible verses on a TV screen at the back of his cafe violates an ordinance which prohibits, among other things, “distress[ing]” or “alarm[ing]” displays.  — MOD

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Sandberg on Religious Freedom and Discrimination in the UK

Russell Sandberg (Cardiff Law School) has posted The Right to Discriminate. The abstract follows. –JKH

The first decade of the 21st century has witnessed a number of controversies surrounding the interaction between law and religion in the United Kingdom. In particular, tensions have emerged between laws protecting religious freedom and those which prohibit discrimination on grounds of sexual orientation. In particular, Parliament has repeatedly examined the scope and ambit of exceptions afforded to religious groups which allow them to discriminate on grounds of sexual orientation when specific conditions are met.  And these exceptions have reportedly led to tensions within both the Blair and Brown cabinets and rebukes from the Vatican and the European Commission, criticising the exceptions for being too narrow and too broad respectively. The exceptions have also been challenged by way of judicial review, have been applied or commented upon in a number of high-profile cases and have attracted comment in the print and broadcast media. A number of employees have brought claims asserting that new legal requirements promoting equality on grounds of sexual orientation are incompatible with their religious beliefs. This article seeks to explore the legal changes that have occurred in the first decade of the 21st century affecting religion and sexual orientation with particular reference to how courts and tribunals have dealt with clashes between the two. It discusses the extent to which English law allows religious groups and individuals to follow their own beliefs regarding human sexuality.

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Beneke on Religious Violence, Anti-Catholicism, and Rights of Conscience in Early America

Chris Beneke (Bentley University) has posted “Not by Force or Violence”: Religious Violence, Anti-Catholicism and Rights of Conscience in the Early National United States. The abstract follows. – ARH

This essay maintains that the sixteenth- and seventeenth-century wars of religion, as well as the periodic hanging, burning, and disemboweling of heretics, did indeed provide a lush and useful ideological backdrop during the Revolutionary era.  As state and federal constitutions were framed, religious violence was vividly recalled, but it was also safely ensconced in the distant past.  Late eighteenth-century partisans of religious rights generally treated religious violence as the defining characteristic of a regrettable age that all reasonable and sympathetic people would want to avoid reliving, rather than an imminent threat.

This approach to a sanguinary and increasingly remote history was integral to a new legal and cultural framework in which anti-Catholicism slackened and less corporal understandings of religious faith took hold.  It was also integral to the justification of a more expansive conception of rights. Toleration’s protections were limited to preserving dissenters from violence and severe, intrusive forms of persecution.  By contrast, “religious liberty” (a close, late eighteenth-century synonym for “free exercise of religion”), protected them from the more mundane operations of religious oppression, such as restrictions on movement, marriage, and office holding, exclusive incorporation laws, and inequitable taxation, thus clearing the way for full participation in civil life.  To those who conceived and defended religious liberty in the new nation, violence was of course deplorable.  It was just not directly relevant.

Posted on by Marc O. DeGirolami

Classic Revisited: Hamburger’s “Separation of Church and State”

In light of some recent perplexing commentary, it seemed like an appropriate moment to commend the definitive book about the historical origins of the famous metaphor of the “wall of separation” between church and state, as well as its use in constitutional law beginning at the turn of the 20th century and especially since the famous Everson decision: Philip Hamburger’s Separation of Church and State (HUP 2002).

And just in brief response to the post by Sarah Posner above, it seems to me that both constitutional conservatives and constitutional progressives do not, today, differ on the viability of separation as a principle of religious liberty per se, so much as they differ on the nature and scope of the principle of separationism.   The question, to my mind, is not whether the idea of separationism is “a myth.”  An important variety of separation between ecclesiastical and temporal authority is bedrock — indeed, it was the Catholic Church itself which played a key role in initiating this separation.  The question is instead what the particular contours of the principle should be today — one which thoughtful constitutional conservatives and constitutional progressives can debate without resorting to caricature.  — MOD

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Einhorn on Family Unions in Israel

Talia Einhorn (Tel Aviv University) has posted Family Unions in Israel – The Tensions between Religious Law and Secular Law and the Quest for Coherent Law. The abstract follows. –JKH

In two decisions of the Israel Supreme Court concerning family relations, the meaning of traditional concepts has come to play a vital role in the debate. The first concerned a lesbian couple who were Israeli citizens. While residing for two years as students in Los Angeles, California, one of them gave birth following artificial insemination. The other spouse adopted the child. Both were entered in the LA civil register as the child’s parents. Upon their return to Israel, they each applied to be registered as ‘mother’ of the child (the Israeli civil register admits the registration of ‘father’ and ‘mother’ but has no neutral category of ‘parent,’ as in LA). The State authorities declined, arguing that they can enter the name of only one woman as being a child’s ‘mother’ in the civil register. Read more

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Corley on Kazakhstan’s Proposed Religious Restrictions

Felix Corley (Forum 18 News Serivce) posted Kazakhstan: New Proposed Legal Restrictions on Religion Reach Parliament. The abstract follows. – JKH

The proposed new Religion Law which reached Parliament yesterday (5 September), if adopted in its current form, would impose a complex four-tier registration system, ban unregistered religious activity, impose compulsory religious censorship and require all new places of worship to have specific authorisation from the capital and the local administration. A second proposed Law imposing changes in the area of religion in nine other Laws would also amend the controversial Administrative Code Article 375, widening the range of “violations of the Religion Law” it punishes. The texts – seen by Forum 18 News Service – have been approved by Kazakhstan’s Prime Minister Karim Masimov, but have not yet been published.

Posted on by Marc O. DeGirolami

Zagorin’s “How the Idea of Religious Toleration Came to the West”

When the separationist position was ascendant in religion clause law, one would frequently see two sorts of reasons given for it: separation from religion and separation for religion.  The former was oriented toward protecting the state; the latter toward protecting religion.  And even today, when separationism is no longer the Court’s favored position in either free exercise or establishment cases, one continues to see the idea that government and religion need to be shielded from one another for their mutual benefit.

The history of these ideas is discussed in How the Idea of Religious Toleration Came to the West (PUP 2003), by the late Perez Zagorin, a first-rate European intellectual historian.  In explaining the origins of the idea of religious toleration, Zagorin’s study emphasizes the second component of the separationist stance.  And for those who are interested in a readable point of entry into these important issues, I think you will enjoy Zagorin’s accessible but deeply cultivated approach.  The publisher’s description follows.  — MOD

Religious intolerance, so terrible and deadly in its recent manifestations, is nothing new. In fact, until after the eighteenth century, Christianity was perhaps the most intolerant of all the great world religions. How Christian Europe and the West went from this extreme to their present universal belief in religious toleration is the momentous story fully told for the first time in this timely and important book by a leading historian of early modern Europe.

Perez Zagorin takes readers to a time when both the Catholic Church and the main new Protestant denominations embraced a policy of endorsing religious persecution, coercing unity, and, with the state’s help, mercilessly crushing dissent and heresy. This position had its roots in certain intellectual and religious traditions, which Zagorin traces before showing how out of the same traditions came the beginnings of pluralism in the West. Here we see how sixteenth- and seventeenth-century thinkers–writing from religious, theological, and philosophical perspectives–contributed far more than did political expediency or the growth of religious skepticism to advance the cause of toleration. Reading these thinkers–from Erasmus and Sir Thomas More to John Milton and John Locke, among others–Zagorin brings to light a common, if unexpected, thread: concern for the spiritual welfare of religion itself weighed more in the defense of toleration than did any secular or pragmatic arguments. His book–which ranges from England through the Netherlands, the post-1685 Huguenot Diaspora, and the American Colonies–also exposes a close connection between toleration and religious freedom.

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Sisk and Heise on Religious Liberty Claims Brought by Muslims in the Federal Courts

Gregory C. Sisk (University of St. Thomas School of Law) and Michael Heise (Cornell Law School) have posted Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts. The abstract follows. –YAH

In our continuing empirical study of religious liberty decisions, we find that Muslims asserting free exercise or accommodation claims were at a distinct and substantial disadvantage in the lower federal courts for the period of 1996-2005. Holding other variables constant, the predicted likelihood for success for non-Muslim claimants in religious free exercise or accommodation claims was approximately 38 percent, while the predicted probability for success for Muslim claimants fell to approximately 22 percent (with the disparity being slightly higher among court of appeals judges). In sum, Muslim claimants had only about half the chance to achieve accommodation that was enjoyed by claimants from other religious communities.

Drawing on insights from legal studies, political science, and cognitive psychology, we discuss alternative explanations for this result, including (1) a cultural antipathy to Muslims as a minority religion outside the modern American religious triumvirate of Protestants, Catholics, and Jews; (2) growing secularism in certain sectors of society and opposition to groups with traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the perception that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. Presenting a new threat to religious liberty, the persistent uneasiness of many Americans about our Muslim neighbors appears to have filtered into the attitudes of even such well-educated and independent elites as federal judges.