The Weekly Five

This week’s selections include a pair of reviews of two recent books, a piece on implementing religious law, an overview of the law of religious freedom in China, and a discussion of European anti-ritual-slaughtering laws.

1. Frederick Schauer (UVA Law), On the Utility of Religious Toleration: This review of Brian Leiter’s Why Tolerate Religion? accepts Professor Leiter’s deontically-grounded claims for religion’s non-specialness but challenges the claims grounded in utilitarianism, arguing that a stronger version of utilitarianism would accept unprincipled and even irrational distinctions as potentially welfare-maximizing.

2. Paul Horwitz (Alabama Law), ‘A Troublesome Right’: The ‘Law’ in Dworkin’s Treatment of Religion: A review of the late Ronald Dworkin’s Religion Without God, in which Professor Horwitz takes special aim at Professor Dworkin’s legal demotion of the right of religious freedom. He writes that the “gloss of abstraction” in Dworkin’s arguments results in substantial overstatements of the problems that Dworkin identifies.

3. Patrick McKinley Brennan (Villanova Law), Implementing Religious Law in Modern Nation-States: Reflections from the Catholic Tradition: Professor Brennan describes the Catholic natural law view of law, religion, and justice, and explores some of the incompatibilities of that view with the American constitutional framework.

4. Ping Xiong (University of South Australia), Freedom of Religion in China Under the Current Legal Framework and Foreign Religious Bodies: A very helpful introduction to the landscape of religious freedom in China. The regime of religious freedom is explored from the perspective of the major religions practiced in China–Taoism, Buddhism, Christianity, Islam, and Confucianism–as well as smaller religious groups.

5. Robert J. Delahunty (University of St. Thomas School of Law), Does Animal Welfare Trump Religious Liberty? The Danish Ban on Kosher and Halal Butchering: Professor Delahunty explores the history of European “hygienic” and “humane” laws that ban ritual slaughtering practices. He concludes that these laws do little or nothing to promote animal welfare and probably are motivated by European unease with the growing Muslim population.

The Weekly Five

In this week’s list, articles on comparative law and religion, freedom of association, special protection for religion, and constitutional faith:

1. Larry Catá Backer (Pennsylvania State University – Dickinson School of Law), The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States. This essay in comparative constitutional law addresses the “privileging” of institutional religion in political life. Solicitude for individual religious belief and practice is not the problem, the author suggests, but the “willingness to allow institutional religion a role in the political life of the state.” The author surveys the situation in foreign countries for “lessons that might be considered by the United States as it seeks to carve a privileged role for religion while protecting its status as something special that cannot be touched by politics.”

2. Neil J. Foster (Newcastle Law School – Australia), Christian Youth Camp liable for declining booking from homosexual support group. In this case comment, Australian legal scholar Neil J. Foster critiques a recent Australian appellate court judgment fining a Christian youth camping organization for refusing to book an event by a homosexual support group. Foster argues that the case is significant, among other reasons, for equating discrimination based on homosexual conduct with discrimination based on sexual orientation, and for holding that corporations are not “persons” who can exercise religion under Australian law.

3. Christopher P. Guzelian (Thomas Jefferson), False Speech: Quagmire? In this essay, the author describes the difficulties courts have in resolving “false speech” cases and argues that the difficulties result from disagreements about the nature of objective truth. Although the author does not advocate a coerced “biblical or natural law” jurisprudence, he does counsel a retreat from nihilism to “a certain kind of optimistic faith.”

4. Michael Stokes Paulsen (University of St. Thomas School of Law), Is Religious Freedom Irrational? This is a review of Brian Leiter’s recent book, Why Tolerate Religion? Paulsen argues that Leiter’s denial of special status for religion is based on “a surprisingly shallow, philosophically unsophisticated understanding of religious belief.” Paulsen writes, “religious belief, at least in certain forms, is entirely rational and reasonable and … the decision of the framing generation to protect specifically religious conscience and exercise is likewise entirely rational.”

5. Nelson Tebbe (Brooklyn Law School), Associations and the Constitution: Four Questions about Four Freedoms. This is a response to a recent article by John Inazu, in which Inazu argues that the four basic freedoms in the First Amendment—speech, press, religion, and assembly—together support the concept of “strong pluralism,” which would generally allow associations to limit membership on any ground, including race. Tebbe tackles the theoretical underpinnings of Inazu’s argument and questions whether Inazu’s “is the most principled and pragmatic solution available” to the problem of balancing associational and individual rights.

The Weekly Five

This week we feature new work on the rhetoric of US Supreme Court opinions; a comparative study of same-sex unions; more specific studies of polygamy and gay marriage; the legal status of women in Pakistan; and claims of religious accommodation in the workplace.

1. Steven Douglas Smith (University of San Diego), The Jurisprudence of Denigration: Smith reflects on Justice Kennedy’s majority opinion in United States v. Windsor (2013). Specifically, he criticizes Kennedy’s claim in the opinion that supporters of Section 3 of DOMA acted from a  a “purpose…to demean,” “to injure,” and “to disparage.” He concludes that this type of denigrating jurisprudence reflects more general patterns in constitutional and moral discourse, in which “the only kind of admissible and potentially persuasive argument is one that attacks the character or motives of one’s opponent.”

2. W. Cole Durham (BYU), Robert Theron Smith (BYU), William C. Duncan (Marriage Law Foundation), A Comparative Analysis of Laws Pertaining to Same-Sex Unions: The authors survey various countries’ approach to the regulation of same-sex unions, and they argue that, as to those countries that recognize same-sex unions, legal change through legislative processes has certain advantages over legal change through the courts.

3. Danièle Hervieu-Léger (French National Center for Scientific Research & Ecole des Hautes Etudes en Sciences Sociales) and Janet Bennion (Lyndon State College), The Meanings of Marriage in the West: Law, Religion and ‘Nature’: Both authors discuss the sense in which law rejects “natural” conceptions of marriage. Bennion focuses on polygamous communities in Montana, Utah, and Mexico. She “reject[s] the notion that polygamy is uniformly abusive, anti-feminist, and dysfunctional.” Hervieu-Léger instead focuses on gay marriage. She is puzzled by, and criticizes, “the way in which the Catholic Church (by which I refer to its institutional representatives) has tried to use this debate to reassert its normative capacity within the public sphere.”

4. Zia Ullah Ranjah (International Islamic University–Islamabad) & Shahbaz Ahmad Cheema (University of the Punjab), Protection of Legal Status of Women in Pakistan: An Analysis of the Role of the Supreme Court: The authors discuss the function of the Supreme Court of Pakistan within Pakistan’s constitutional structure and the court’s role in protecting the rights of women, offering various recommendations.

5. Dallan Flake (BYU), Image is Everything: Corporate Branding and Religious Accommodation in the Workplace: Flake claims that courts should more closely scrutinize claims of religious accommodation within the workplace “because a company’s image is one of its most valuable assets.” Among his recommendations are that courts reject claims of accommodation if they impose anything more than de minimis burdens on employers and that they defer more broadly to the employers’ interest.

The Weekly Five

This week’s collection of five new articles from SSRN includes Corinna Lain’s history of Engel v. Vitale, the school prayer case; Anna Su’s review of Steve Smith’s new book on the decline of religious freedom; and pieces on corporate social responsibility in Asia; Christianity and other foundations of international law; and the will to live.

1. John D. Haskell (Mississippi College-School of Law), The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism. According to Haskell, three traditions constitute “modernity” in international legal scholarship—Christianity, Liberalism, and Marxism. These three traditions differ from one another but also have some similarities. He writes, “my hope is that in studying each tradition, we can find a new synthesis that allows fresh analytical tools to conceive the dynamics of global governance today and how they might be addressed.”

2. Corinna Lain (University of Richmond), God, Civic Virtue, and the American Way: Reconstructing Engel. In this history of Engel v. Vitale, the 1962 Supreme Court decision that struck down school prayer, the author argues that the conventional wisdom has the case wrong. Engel was not an example of the Court’s standing bravely against a popular majority. If the Justices had understood how controversial their decision would be, she maintains, they would not have taken the case to begin with. Instead, Engel demonstrates the power of judicial review in stimulating democratic deliberation on the Constitution—what some scholars call “popular constitutionalism.” She argues that popular antipathy to the decision resulted from misunderstandings provoked by the media.

3. Marvin Lim (Independent), A New Approach to the Ethics of Life: The “Will to Live” in Lieu of Traditionalists’ Notion of Natural/Rational and Progressives’ Autonomy/Consciousness. The author maintains that both traditionalist and progressive justifications for protecting human life are inconsistent and unconvincing. In their place, he argues for an ethic of the “will to live.” What ultimately matters is whether actions respect or violate this ethic. This approach would allow abortion and assisted suicide in at least some circumstances, he says.

4. Arjya B. Majumdar (Jindal Global Law School), Zakat, Dana and Corporate Social Responsibility. In this essay, the author traces the tradition of charity in Islam, Hinduism, and Buddhism and explores the relevance of that tradition in corporate law. Especially in Asia, the author says, where corporations have relatively few shareholders and tend to be family or individual operations, religious traditions of charity can play an important role in boosting corporate social responsibility.

5. Anna Su (SUNY Buffalo), Separation Anxiety: The End of American Religious Freedom? This is a review of Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom. Su disagrees with Smith that the Supreme Court’s twentieth-century Religion Clause cases threaten the existence of religious freedom. “These decisions,” she writes, though frustrating and incoherent as they might seem, in fact, are as responsible for the remarkable religious pluralism that exists in American society today as much as for the contemporary secular extremism that Smith deplores.”

The Weekly Five

This week’s collection of new pieces on SSRN includes an article on Catholic objections to Legal Realism by John Breen and Lee Strang;  a history of Just War theory by Robert Delahunty; an article by Zoe Robinson on the definition of “religious institutions” in connection with the Contraception Mandate litigation; and two essays by Micah Schwartzman on religious and secular convictions.

1. John M. Breen (Loyola University Chicago) and Lee J. Strang (University ofToledo), The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism. This article examines the critique of Legal Realism by Catholic scholars in the 1930s and 1940s. Legal historians have unfairly neglected this critique, the authors say, which was both profound and systematic. Catholic legal thinkers who objected to Realism drew on the worldwide revival of Neo-Scholastic philosophy taking place at the time.

2. Robert J. Delahunty (University of St. Thomas), The Returning Warrior and the Limits of Just War Theory. In this paper, Delahunty traces the history of the Just War tradition in Christian thought. Before the twelfth-century Papal Revolution, he writes, the Catholic Church treated the subject in a pastoral, unsystematic way. Soldiers who had killed in wartime were typically required to do penance. In the Papal Revolution, however, the Church transformed itself into an early modern state, equipped with a military force. “As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.”

3. Zoe Robinson (DePaul University), The Contraception Mandate and the Forgotten Constitutional Question. Robinson maintains that arguments about the ACA”s Contraception Mandate often neglect the first question: whether the claimants are “religious institutions” that merit constitutional protection. She develops a list of four factors that identify such institutions: “(1) recognition as a religious institution; (2) functions as a religious institution; (3) voluntariness; and (4) privacy-seeking.” Applying these factors, she argues that religious universities qualify as religious institutions, but not for-profit businesses or religious interest groups.

4. Micah Schwartzman (University of Virginia), Religion as a Legal Proxy. In a response to Andrew Koppelman, Schwartzman argues that affording legal protection to religion as such unfairly discriminates against people with non-religious commitments. He argues that the concept of religion should be expanded to include secular claims of conscience. A wide range of international and domestic laws already do so, he points out. Against the backdrop of these laws, the First Amendment’s singling out of religion “feels somewhat antiquated.”

5. Micah Schwartzmann (University of Virginia), Religion, Equality, and Public Reason. This is a review of Ronald Dworkin’s posthumous work, Religion without God, in which Dworkin argues that, as a moral matter, both religious and non-religious convictions deserve legal protection. Schwartzman agrees, but argues that Dworkin unfortunately resisted using the concept of public reason, familiar from the work of John Rawls and others. Schwartzman believes that reliance on public reason is “inevitable” for those, like Dworkin, “who accept that believers and nonbelievers deserve equal respect for their competing and conflicting views.”

The Weekly Five

This week’s collection includes Benjamin Berger on the modest but useful role of law in mediating religious controversies; Cole Durham and others on same-sex marriage across the globe; Kenneth Lasson on food regulation; Ronan McCrea on face veils in Europe; and Eric Segall on legislative prayer.

1. Benjamin L. Berger (Osgoode Hall), The Virtues of Law in the Politics of Religious Freedom. Berger finds a role for law in mediating the politics of religious freedom. Unlike politics or religion, he says, law does not make comprehensive moral and empirical claims. Law’s goals are much more modest. As a result, law can bracket ultimate truth claims and reach workable compromises in religiously pluralist societies. He offers two examples, a Canadian case on the question whether a witness may give testimony wearing an Islamic niqab and an Israeli case about gender segregation on public buses.

2. W. Cole Durham (BYU) et al., A Comparative Analysis of Laws Pertaining to Same-Sex Unions. The authors survey marriage laws across the globe and report that only a relatively small number allow same-sex marriage. Most states that have decided to allow same-sex marriage have done so through the legislative rather than the judicial process. The authors maintain the legislative route is preferable for a variety of reasons and point out that “with very few exceptions, national and supranational courts have held that such decisions must be left to democratic action by citizens or their legislative representatives.”

3. Kenneth Lasson (University of Baltimore), Sacred Cows, Holy Wars: Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat. The author discusses constitutional issues raised by food regulations that implicate religious practices, “especially when regulatory schemes bring into play both consumer protection of the public and recognition of individual rights.”

4. Ronan McCrea (University College London), The Ban on the Veil and European Law. McCrea argues that “offensiveness,” alone, will not justify bans on the public wearing of face veils under European human rights law. However, he maintains, “a ban that applies to public face-covering in general (rather than a ban that only targets the veil), that relates to the specific (though admittedly broad) context of social life and that provides some exceptions allowing the veil to be worn in specific religious or expressive contexts, has a reasonable chance of being upheld by European courts despite the significant infringement of personal autonomy it would involve.”

5. Eric Segall (Georgia State), Silence is Golden: Moments of Silence, Legislative Prayers, and the Establishment Clause. This comment on Town of Greece v. Galloway argues that the best solution to the controversy over legislative prayer is to forbid such prayer in favor of a moment of silence. This solution, Segall argues, “would solemnize governmental hearings and allow people with business there to pray or not pray, without causing offense to, or even in some circumstances coercing, people who do not wish to engage in a religious exercise.”

The Weekly Five

The Weekly Five showcases articles about commercial dealings among co-religionists, the reach of anti-discrimination laws, European cases and contexts involving the wearing of religious clothing and the registration of religious groups, and the free speech implications of regulating “spiritual advisors.”

1. Michael A. Helfand (Pepperdine) & Barak D. Richman (Duke), The Challenge of Co-Religionist Commerce: Two former CLR Forum guests argue for a contextualist (as against a formalist) approach to the adjudication of contracts and commercial dealings among members of religious communities. The article also amplifies on Professor Helfand’s previous work on “Establishment Clause creep,” arguing for a more engaged role for courts in this context.

2. Sahar F. Aziz (Texas Tech), Veiled Discrimination: Professor Aziz argues that while Title VII prohibits cover bias, it does a bad job in protecting against “implicit bias arising from negative stereotypes of protected classes”; and “disparate treatment of subgroups of protected classes who do not conform to coercive assimilationist pressures.” This failing is a particular problem for individuals who fall into several categories of protected classes–for example, women with religious commitments.

3. Michelle Biddulph & Dwight G. Newman (both of Saskatchewan), Eweida v. United Kingdom: This is a short and useful piece discussing four recent controversies at the European Court of Human Rights, two of which involve the wearing of religious clothing by Christians and two of which concern the provision of services by religious objectors to gay people.

4. Jeroen Temperman (Erasmus University Rotterdam), Recognition, Registration, and Autonomy of Religious Groups: European Approaches and Their Human Rights Implications: In the context of surveying various categories of demands imposed on religions in Europe for official recognition (including numerical and durational requirements), Professor Temperman argues that these demands are illegitimate. He also reviews the conflict between European states’ egalitarian interests and various religious autonomy interests, reaching a more intermediate conclusion.

5. Nicole Jones, Did Fortune-Tellers See This Coming? Spiritual Counseling, Professional Speech, and the First Amendment: An interesting comment about the ways in which “spiritual counseling” are more similar to religious speech than to professional speech for purposes of the First Amendment and state regulation. The piece discusses the free speech implications of the “Psychic Sophie” case also studied from another angle by my colleague, Mark, in his new piece.

The Weekly Five

This week’s collection focuses on religious law and critiques. Steve Smith argues that Ronald Dworkin misunderstands theistic versions of morality; Oren Gross contrasts Jewish and secular ideas about amending the law; Martin Gardner addresses what Mormon Church doctrine has to say about retributive punishment; and Gustavo Kaufman takes on the UK Supreme Court’s decision in the Jews Free School Case. We also include Ian Bartrum’s assessment of the US Supreme Court’s grant of cert in Town of Greece, the legislative prayer case.

1. Steven Douglas Smith (San Diego), Is God Irrelevant? Smith reviews Ronald Dworkin’s posthumous work, Religion without God. Smith maintains that Dworkin misunderstands the disagreement between theists and non-theists. The divide is not between people with different views of morality, he says, but “between those who think that the universe, including the world of humanity, is the product of a loving and intelligent author or designer who created it according to a plan and for a good purpose, on the one hand, and on the other those who reject the belief in any guiding intelligence and any encompassing and mindful plan. That is a difference with profound implications for most of the great issues of life (including, almost certainly, issues implicating law and politics).”

2. Ian C. Bartrum (University of Nevada-Las Vegas), The Curious Case of Legislative Prayer: Town of Greece v. Galloway. Ian Bartrum considers why the Supreme Court granted cert in this case, currently under review, and why the Solicitor General has sided with the town. He infers that some of the Justices may hope to use the case to abandon the endorsement test, and that the Administration has intervened to limit the potential damage.

3. Oren Gross (University of Minnesota), Venerate, Amend … and Violate. This paper compares secular law, which people may amend to meet new circumstances, with divine law, which, in theory, people may not amend. Using Jewish law as an example, Professor Gross examines the way in which rabbis have justified deviating from the text of religious law in extraordinary situations.

4. Gustavo Ariel Kaufman (Independent), Racial Discrimination vs. Religious Freedom in the JFS Decision. Kaufman reviews the UK Supreme Court’s 2009 decision in the “Jews Free School case” from 2009, which held that a Jewish school’s decision to exclude a child based on parentage violated racial anti-discrimination laws. Kaufman argues that the court’s decision disparages religious freedom and contradicts European law.

5. Martin R. Gardner (University of Nebraska), Viewing the Criminal Sanction through Latter-Day Saint Thought. This paper addresses criminal law from the perspective of the doctrines of the Mormon Church. Specifically, the author argues that the church’s doctrines of agency and pre-mortal existence support some aspects of retributive theory.

The Weekly Five

Today, the Weekly 5 focuses on American law. We note two pieces on the Hobby Lobby and Conestoga Wood cases–each focusing on different features of those cases–as well articles about copyright law, the parsonage exemption, and legislative prayer.

1. Stephen M. Bainbridge (UCLA), A Critique of the Corporate Law Professors’ Amicus Brief in Hobby Lobby and Conestoga Wood: Professor Bainbridge criticizes the claims of a number of law professors that principles of corporate law prohibit a corporation from assuming the religious beliefs of its shareholders. Professor Bainbridge argues that the doctrine of reverse veil-piercing provides a mechanism for disregarding the legal separateness of the corporation from its shareholders.

2. James M. Oleske Jr. (Lewis and Clark), Obamacare, RFRA, and the Perils of Legislative History: Professor Oleske argues that the legislative history of RFRA “casts considerable doubt” on the claim (most prominently advanced by Professor Douglas Laycock) that there was universal congressional agreement at the time of RFRA’s passing that the statute would apply to for-profit corporations. Professor Oleske concludes that it would be better for the Court to interpret RFRA in light of its own pre-1990 jurisprudence.

3. Carolyn Homer Thomas (Quinn, Emmanuel), The Copyright Act’s Licensing Exemption for Religious Performances of Religious Works is Unconstitutional. Ms. Thomas argues that the exemption of a licensing requirement for dramatic works with a sufficiently religious content violates the Establishment Clause, relying especially (see pp.  67 and following) on the Supreme Court’s opinion in a RLUIPA case, Cutter v. Wilkinson.

4. Edward A. Zelinsky (Cardozo), The First Amendment and the Parsonage Allowance: Professor Zelinksy discusses the justifications for parsonage exemption, which permits clergy to exclude their housing expenses from taxable income, in the context of criticizing a recent district court opinion striking down the parsonage exemption as a violation of the Establishment Clause.

5. Alan E. Brownstein (UC Davis), Town of Greece v. Galloway: Constitutional Challenges to State Sponsored Prayers at Local Government Meetings: In this lecture, Professor Brownstein considers the Galloway case as well as the constitutionality of legislative prayer generally. Professor Brownstein also offers a set of guidelines that, if followed by a municipality, would render legislative prayer constitutional.

The Weekly Five

The Weekly Five highlights articles about abortion, neutrality in First Amendment jurisprudence; the difficult but necessary task of speaking about religion in legal language; Augustine; and religion and legal pluralism.

1. Michael Stokes Paulsen (Minnesota), Kermit Gosnell and ‘Uncle Tom’s Cabin. Professor Paulsen argues that the events in the Gosnell case can serve the same function in the abortion context as did Harriet Beecher Stowe’s novel for the abolitionist context.

2. Corey L. Brettschneider (Brown), Value Democracy as the Basis for Viewpoint Neutrality: A Theory of Free Speech and Its Implications for the State Speech and Limited Public Forum Doctrines. Professor Brettschneider tackles the problem of the baseline in neutrality doctrines, arguing for the protection of the rights of people to make up their minds and speak free from the threat of coercive punishment, in conjunction with the state’s obligation to  defend the values that underlie these rights and to criticize expressions of hate that oppose them. With implications for free speech and religion clause doctrine.

3. James Boyd White (Michigan), Talking About Religion in the Language of the Law: Impossible But Necessary. An older paper of Professor White that has just been posted and is well worth checking out. The piece discusses various reasons for the difficulty of speaking about religion in legal contexts, including some internal to American constitutional history and structure, and others that are more sociological or conceptual in nature.

4. James Boyd White (Michigan), The Creation of Authority in a Sermon by St. Augustine. Another paper by Professor White published as part of a symposium honoring the work of Professor Joseph Vining. The piece discusses a sermon in which Augustine explicates the Ten Commandments and the transformation of those Commandments by Jesus in his Sermon on the Mount. Professor White uses that transformation to reflect on the nature of authority as the giving of life to text.

5. Haider Ala Hamoudi (Pittsburgh), Decolonizing the Centralist Mind: Legal Pluralism and the Rule of Law. Professor Hamoudi criticizes the view that the rule of law must give exclusivity or even primacy to state law systems and argues that those who are intent on rule of law centralization in the state are pressing a fantastical program. Professor Hamoudi draws on the example (one with which he has great familiarity) of Shi’i dominated central and southern Iraq to make these points.

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