Category Archives: Dylan W. Sherwood

Willis on the Contraception Mandate and Corporations

Steven J. Willis (University of Florida, Fredric G. Levin College of Law) has posted Taxes and Religion: The Hobby Lobby Contraceptive Cases. The abstract follows.

Beginning in 2013, the federal government mandates that general business corporations include contraceptive and early abortion coverage in employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.

So far, courts have been reluctant to hold corporations have religious rights
of their own; as a result, standing of a corporation to assert the religious
beliefs and rights of owners has become the primary issue in the twenty-six
separate cases moving through the courts. Courts are split on whether to grant standing; however, a large majority has used a variation of relational or associational standing to grant preliminary injunctions against enforcement of the tax.

This article discusses the relationship of morality and religion to general
business corporations. It concludes that over the past few decades, movements for social justice and corporate social responsibility have intertwined business corporations and moral issues, blurring the line between religion and commerce. It also concludes that courts should permit associational standing for closely-held corporations – particularly those electing S status for tax purposes – if the owners have unanimous (or near-unanimous) beliefs.

Abbas, “Pakistan’s Blasphemy Laws”

This July, the University of Texas Press will publish Pakistan’s Blasphemy Laws: From Islamic Empires to the Taliban by Shemeem Burney Abbas (SUNY Purchase). The publisher’s description follows.Pakistan's Blasphemy Laws

Under the guise of Islamic law, the prophet Muhammad’s Islam, and the Qur’an, states such as Pakistan, Afghanistan, Egypt, Saudi Arabia, and Bangladesh are using blasphemy laws to suppress freedom of speech. Yet the Prophet never tried or executed anyone for blasphemy, nor does the Qur’an authorize the practice. Asserting that blasphemy laws are neither Islamic nor Qur‘anic, Shemeem Burney Abbas traces the evolution of these laws from the Islamic empires that followed the death of the Prophet Muhammad to the present-day Taliban. Her pathfinding study on the shari’a and gender demonstrates that Pakistan’s blasphemy laws are the inventions of a military state that manipulates discourse in the name of Islam to exclude minorities, women, free thinkers, and even children from the rights of citizenship.

Abbas herself was persecuted under Pakistan’s blasphemy laws, so she writes from both personal experience and years of scholarly study. Her analysis exposes the questionable motives behind Pakistan’s blasphemy laws, which were resurrected during General Zia-ul-Haq’s regime of 1977–1988—motives that encompassed gaining geopolitical control of the region, including Afghanistan, in order to weaken the Soviet Union. Abbas argues that these laws created a state-sponsored “infidel” ideology that now affects global security as militant groups such as the Taliban justify violence against all “infidels” who do not subscribe to their interpretation of Islam. She builds a strong case for the suspension of Pakistan’s blasphemy laws and for a return to the Prophet’s peaceful vision of social justice.

Nelson on the Free Exercise Rights of Institutions

James David Nelson (Columbia University Law School) has posted Conscience, Incorporated. Nelson’s essay evaluates the ability of corporations and other institutions to claim exemptions from the Affordable Care Act’s contraception mandate under the Free Exercise Clause. The abstract follows.

Do business corporations have free exercise rights? This question has become critically important in recent challenges to the Affordable Care Act’s so-called “contraception mandate.” A host of businesses selling ordinary goods and services claim that they cannot be compelled to provide employees with insurance that covers contraception. Courts have divided over whether corporations can assert rights of conscience, and existing theoretical accounts fail to provide guidance on this question.

This Article offers a new normative framework for evaluating corporate claims of conscience. Drawing on theories of conscience and collective rights, it develops a “social theory” of conscience that explains how individual moral identity is formed within associations and, consequently, how the social structure of those associations can support institutional claims for legal exemptions.

The social theory of conscience has direct implications for free exercise doctrine. For an institution to assert a valid claim, it must be a constitutive community, such that individual members regard the collective as intimately tied to their sense of self. Some institutions, like churches and other religious organizations, fit comfortably in this category. But the legal, social, and economic norms that govern modern business practice pervasively undermine the formation of tight personal connections to for-profit corporations and thereby erode the normative basis for institutional legal exemptions. Free exercise doctrine should therefore resist corporate claims to exemptions from the law.

Keshavjee, “Islam, Shari’a and Alternative Dispute Resolution”

This June, I.B. Tauris Publishers will publish Islam, Shari’a and Alternative Dispute Resolution: Mechanisms for Legal Redress in the Muslim Community by Mohamed Keshavjee (The Institute of Ismaili Studies). The publisher’s description follows.Islam, Sharia and Alternative Dispute Resolution

The meanings and contexts of Shari’a are the subject of both curiosity and misunderstanding by non-Muslims. Shari’a is sometimes crudely characterised by outsiders as a punitive legal system operating broadly outside, and separate from, national laws and customs. This groundbreaking book shows that Shari’a and its ‘fiqh’ (laws set forward by various Islamic legal schools) comprise a far more nuanced matrix of interpretations than is often assumed to be the case. Far from being monolithic or impervious to change from without, Muslim legal tradition has – since its beginnings in the early Islamic period – placed an emphasis on equity and non-adversarial conflict-resolution. Mohamed Keshavjee examines both Sunni and Shi’a applications of Islamic law, demonstrating how political, cultural and other factors have influenced the practice of fiqh and Shari’a in the West. Exploring in particular the modern development of Alternative Dispute Resolution (ADR), the author shows that this process can revitalise some of the essential principles that underlie Muslim teachings and jurispudence, delivering not only formal remedies but also perceived justice, even to non-Muslims.

Shah on Religious Accommodations

Prakash Shah (Queen Mary, University of London School of Law) has posted Asking About Reasonable Accommodation in the Context of Religious Universalism. The abstract follows.

Interviews conducted with leading actors in England asking a range of questions about religious diversity and the legal framework and, in particular, about reasonable accommodation, helped identify a number of areas of concern. There was some doubt about whether specific legal provision should be brought in to guarantee reasonable accommodation. However, there was broad support for having the principle adopted in the practice of employers, while some preferred the current informality rather than the principle being enforced through litigation. None of the respondents came up with illustrations outside of Judaism, Christianity or Islam. The results are consistent with recent critical studies showing that the assumption in social sciences that religion is a universal has been imported from theology. Religion-based questions only pick out certain phenomena specific to some cultures and an inevitable skew is created when asking such questions because they only make sense within an Abrahamic religious framework. While enabling the identification of some aspects of culture considered to merit reasonable accommodation on grounds of religion, the results also pose questions about the adequacy of current, standard research methodologies which assume that religion is a universal.

Waggoner (ed.), “Religion in the Public Schools”

This month, Rowman & Littlefield Publishers will publish Religion in the Public Schools: Negotiating the New Commons edited by Michael D. Waggoner (University of Northern Iowa). The publisher’s description follows.Religion in The Public Schools

Since September 11, 2001, the profile of religion’s role in our global society has increased significantly. Religion has long been a force in people’s lives as numerous studies and polls show, yet we continue to struggle with understanding differing religious traditions and what they mean for our common life. There are few places where Americans can meet together to learn about each other and to share in the common construction of our futures. One such place for many is public education.

The purpose of this book is to illustrate the complexity of the social, cultural, and legal milieu of schooling in the United States in which the improvement of religious literacy and understanding must take place. Public education is the new commons. We must negotiate this commons in two meanings of that term: first, we must come to mutual understandings and agreement about how to proceed toward a common horizon of a religiously plural America; second, we must work our way through the obstacles in these settings in practical ways to achieve results that work.

Glickstein on the Ministerial Exception

Jed Glickstein (Yale Law School) has posted Should the Ministerial Exception Apply to Functions, Not Persons? The abstract follows.

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court confirmed what the lower courts had been saying for some time: the First Amendment prohibits the application of the employment discrimination laws to the relationship between a church and its ministers. Despite Hosanna-Tabor’s significance, however, the so- called ministerial exception remains in flux. For one thing, it is still unclear who will be deemed a “minister” for purposes of the doctrine. The answer to that foundational question may be more complicated than it appears. Thus far, courts and commentators have assumed that ministerial status is binary; a given employee either is a minister (in which case the First Amendment completely bars her suit) or she is not (in which case her suit proceeds like any other). That way of thinking may make sense for the easy cases, but it fits uneasily with the wide range of positions that have been labeled ministerial by the lower courts. This Note accordingly suggests an alternative framework that more closely tracks the functional considerations that underlie the ministerial exception. In short, it argues that a revised exception — one that applies to ministerial functions, not ministerial persons — better strikes the balance between antidiscrimination values and religious liberty that the First Amendment requires.

Asad, Brown, Butler & Mahmood, “Is Critique Secular?”

This month, the Oxford University Press will publish Is Critique Secular?: Blasphemy, Injury and Free Specch by Talal Asad (CUNY), Wendy Brown (UC Berkeley), Judith Butler (UC Berkeley), and Saba Mahmood (UC Berkeley). The publisher’s description follows.Is Critique Secular?

In this volume, four leading thinkers of our times confront the paradoxes and dilemmas attending the supposed stand-off between Islam and liberal democratic values. Taking the controversial Danish cartoons of Mohammad as a point of departure, Talal Asad, Wendy Brown, Judith Butler, and Saba Mahmood inquire into the evaluative frameworks at stake in understanding the conflicts between blasphemy and free speech, between religious taboos and freedoms of thought and expression, and between secular and religious world views. Is the language of the law an adequate mechanism for the adjudication of such conflicts? What other modes of discourse are available for the navigation of such differences in multicultural and multi-religious societies? What is the role of critique in such an enterprise? These are among the pressing questions this volume addresses.

Yilmaz on Muslim Secularism

Ihsan Yilmaz (Fatih University) has posted Towards a Muslim Secularism? An Islamic ‘Twin Tolerations’ Understanding of Religion in the Public Sphere. The abstract follows.

Since the mid-1920s, the top-down homogenization and secularization policies of the hegemonic Kemalist elite have aimed at socially engineering secularist nationalist Turkish citizens. The acronym LAST (Laicist, Atatürkist, Sunni, Turk) describes this ideal citizen typology. The state has also tried to monopolize Islam and has attempted to construct a state version of Islam (Lausannian Islam), marginalizing, vilifying and even criminalizing other Islamic interpretations. Nevertheless, non-state Islam and civil Muslim actors have not disappeared from the Turkish public sphere. One of these influential actors is the counter-hegemonic Turkish Islamists. They demand a role for Islam in the political realm, in a binary opposition to the assertively secularist Kemalists. Another influential actor, the intellectual leader of the largest faith-based movement in Turkey, Fethullah Gülen, offers a third way between these two extremes on state-religion-society relations.

This paper endeavors to show that an interpretation of Muslim secularism that inhabits religious and secular worlds simultaneously, that is in critical engagement with them and that blurs conventional political lines on the hotly debated issue of state-religion-society relations is possible.

This understanding of ‘Islamic twin tolerations’ challenges the artificially constructed binary oppositions. It also resonates with the Habermasian (2006) ‘religion in the public sphere.’ It argues that the faithful from all religious backgrounds can legitimately have demands based on religion in the public sphere and in the final analysis; it is the legislators’ epistemic task to translate these demands into a secular language in the legislative process.

Gaylord on Free Exercise and the HHS Mandate

Scott Gaylord (Elon University School of Law) has posted For-Profit Corporations, Free Exercise, and the HHS Mandate. The abstract follows.

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the 15 cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free exercise clause and laws, such as the HHS mandate, that are alleged to be neutral and generally applicable. But these cases are made even more difficult because of a specific claim that is raised in each case — that corporations can exercise religion under the First Amendment and RFRA. As several district courts have noted, “whether secular corporations can exercise religion is an open question.” This paper analyzes this novel and unresolved issue, arguing that, just as corporations can engage in free speech under Citizens United, for-profit corporations can exercise religion under the free exercise clause and RFRA.

Although the Supreme Court has not addressed this specific issue, I argue that it has established rules for determining whether corporations can invoke particular constitutional rights and that, under these rules, corporations can invoke the protection of the free exercise clause. Several district courts have reached the opposite conclusion, while several others have avoided the issue altogether. Relying primarily on a single footnote in First Nat’l Bank of Boston v. Bellotti, the courts denying free exercise protection to for-profit corporations maintain that the free exercise of religion is a “purely personal” right that is limited to individuals and religious non-profit organizations. This paper contends, however, that a more detailed review of Bellotti, Citizens United, and the Court’s other decisions regarding the constitutional rights of corporations reveals that free exercise, like the freedom of speech, is not a “purely personal” right. Consequently, corporations — whether for-profit or non-profit — can claim its protection. Moreover, in the wake of Bellotti and Citizens United, neither the “profit motive” of a for-profit corporation nor the “religious nature” of religious organizations (e.g., churches) justifies limiting the free exercise clause only to individuals and non-profit religious organizations. Although many (perhaps most) corporations may choose not to engage in religious activities, there is no constitutional basis for precluding a priori all for-profit businesses from raising free exercise claims.