Category Archives: Marc O. DeGirolami

Britain to Recognize Sharia-Compliant Wills

An interesting story about The Law Society’s decision to recognize the legitimacy of Islamic law by permitting solicitors to draft wills that are compliant with principles of Islamic law. A bit:

Under ground-breaking guidance, produced by The Law Society, High Street solicitors will be able to write Islamic wills that deny women an equal share of inheritances and exclude unbelievers altogether.

The documents, which would be recognised by Britain’s courts, will also prevent children born out of wedlock – and even those who have been adopted – from being counted as legitimate heirs.

Anyone married in a church, or in a civil ceremony, could be excluded from succession under Sharia principles, which recognise only Muslim weddings for inheritance purposes.

Nicholas Fluck, president of The Law Society, said the guidance would promote “good practice” in applying Islamic principles in the British legal system.

The story reports that some of the existing Islamic law tribunals also “have powers to set contracts between parties, mainly in commercial disputes, but also to deal with issues such as domestic violence, family disputes and inheritance battles.”

It may be that The Law Society will eventually make the same decision with respect to private parties who wish to engage in commercial transactions that conform to Islamic law, or who wish to avoid commercial transactions with those who hold what are taken to be religiously objectionable views. Interesting that the reception to similar claims in this country has been rather different.

UPDATE: See Frank Cranmer’s comment for various clarifications.

Hamburger on “Equality and Exclusion”

Philip Hamburger has this short piece, which distills arguments that he makes in this very interesting article. I highly recommend both. The abstract of the long piece and a few quick highlights:

Religious Americans are substantially excluded from the political process that produces laws, and this prompts sobering questions about the reality of religious equality. Put simply, political exclusion threatens religious equality.

The exclusion is two-fold. It arises partly from the growth of administrative power, which leaves Americans, including religious Americans, no opportunity to vote for or against their administrative lawmakers. It also arises from section 501(c)(3) of the Internal Revenue Code. As a result of this section, even when law is made in Congress (or an elected state legislature), religious organizations are restricted in their freedom to petition and to campaign for or against their lawmakers. There thus is a broad exclusion of religious Americans and their organizations from the political process that shapes lawmaking, and Americans thereby have lost essential mechanisms for persuading their lawmakers to avoid burdening their religious beliefs.

Religious liberty thus comes with an unexpected slant. Courts blithely assume that America offers a flat or even legal landscape — a broad and equitable surface on which all Americans can participate equally, regardless of their religion. The underlying exclusion, however, tilts the entire game, so that apparently equal laws actually slant against religion. What is assumed to be a flat and natural landscape turns out to be an artificially tilted game.

The conceptual framing of religious liberty therefore needs to expanded. The central conceptual problem for the free exercise of religion is usually understood as the choice between exemption and equality — the choice between a freedom from equal laws, on account of one’s religion, and a freedom under equal laws, regardless of one’s religion. The conceptual problem, however, turns out to be more complicated. In addition to the constitutional choice between exemption and equality, one must also consider the role of exclusion.

Of course the political exclusion of Americans as a result of the growth of the administrative state would not affect only religious Americans, and Philip recognizes this in the paper. But his particular focus is on the political exclusions that the administrative process has worked on those with religious convictions–and particularly on those whose religious convictions run contrary to or are in tension with the commitments of those in political power.  “Those who are sailing with prevailing winds, theological and political, do not suffer much from the exclusion.”

The argument about section 501(c)(3) is particularly interesting. As is well-known, this provision offers a kind of deal to religious, educational, and charitable organizations: so long as you do not campaign and advocate for political persons and causes, the state will not tax you. The common justification for the imposition of these constraints is that they are merely conditions on spending, but Philip argues here (as he has before) that limits on government power cannot be waived by consent–”private consent cannot enlarge constitutional power.” Constitutional rights are not “tradable commodities.” So the government cannot cut the deal it has cut in section 501(c)(3); it has no power to do so. Philip also questions the idea that exemptions are the same as expenditures for purposes of the spending power. “If refraining from taxing amounted to spending, then all Americans continually would be recipients of government largesse, for the government might have taxed them at a higher rate, and the decision not to impose the higher rate would be a tax expenditure.” If that were true, the government could apply 501(c)(3) against all Americans.

The idea here is that the reason not to tax churches and religious organizations is not that they made a deal with the government in exchange for which they are get the privilege of an exemption. The reason not to tax them is that taxes are not proper as against organizations whose principal mission is nonprofit. Exemptions here are merely mechanisms for recognizing that a tax is inappropriate for organizations that ordinarily have no income. Philip then takes aim at the various justifications for the partial political exclusion worked by 501(c)(3)–that the restriction is “not draconian,” that allows other avenues for religious groups to participate in the political process (the Russian Doll analogy to what is permitted by 501(c)(4) was particularly effective), the ‘we need a mechanism to stop tax deductible political contributions’ claim–arguing that none of them is sufficient to counter the constitutional problems.

Here’s a thought experiment in the piece: suppose the government attempted to apply 501(c)(3 restrictions to professors. Professors are supposed to be disinterested observers, so the government decides to make a distinction between academics and politics. Therefore, as professors (as opposed to as private individuals), they cannot engage in any campaigning or substantial petitioning. After all, professors benefit from a whole lot of federal spending on their students and their univerisities, so it’s perfectly ok to condition federal aid to universities on the absence of political participation of various kinds by professors. And, anyway, if they were true academics, they wouldn’t engage in politicking anyway. I suspect many would think this quite absurd. And as Philip says, “[t]he larger constitutional point is that the reasons for suppression are plentiful, but this does not mean that they make the suppression constitutional.”

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.

Inazu on the Idea of the Public Forum

John Inazu has posted a very thoughtful and interesting piece, The First Amendment’s Public Forum. The abstract and some rapid reactions to the piece follow:

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society. The resulting mosaic is neither thematic nor tidy, but it is in at least one sense, beautiful: the deductions, like the city park, enact the aspirations of a democratic polity. Organizations and ideas wither or thrive not by government fiat but based on the “values and choices of private givers.”

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a limited public forum. Between these poles lie numerous other governmental arrangements with similar purposes and functions: sidewalks, parking lots, public schools, websites, public libraries, vanity license plates, and student activity funds, to name a few. In each of these cases, private groups and individuals rely on government resources (financial or otherwise) to inculcate and express their ideas and their ways of life. The ideal of the public forum represents one of the most important aspects of a healthy democracy. It signifies a willingness to tolerate dissent, discomfort, and even instability. The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today. That distortion is partially attributable to two important doctrinal developments. The first is increased judicial reliance on purportedly “content-neutral” time, place, and manner restrictions. The second is the relationship between the public forum and the evolving government speech doctrine, under which the government characterizes messages advanced under the auspices of its financial and other resources as distinctively its own and not subject to First Amendment review. This essay suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause. The public forum is a First Amendment doctrine, not a free speech doctrine. And we will only comprehend its purposes and its possibilities when we rediscover the values underlying the rights of the First Amendment.

This piece continues and amplifies on John’s important work on the freedom of assembly. I have often wondered (and I suspect John may also wonder) whether the increasing muscularity of speech doctrine–verging, in my own view, on what might reasonably called absolutism–has contributed (or is contributing) to the weakening of the other freedoms guaranteed by the First Amendment. One need not hold Robert Bork’s view of the speech clause to suspect that this is happening. One can see the phenomenon with respect to the religion clauses–for example, in the claim that corporations cannot “exercise” religion because corporations cannot “believe” anything, or have no “consciences” (that very claim about corporations was rejected by the Court as to speech itself, though Justice John Paul Stevens as well as most of the rest of the legal academy are still up in arms about it). John’s own relational account of the freedom of assembly emphasizes the value of congregation and consociation–of the act of gathering together for a social purpose–which is rather a distinct good than whatever speech concerns are at issue. One might add that the value of place–of having a place, and perhaps even (and more controversially?) of knowing one’s place–are important First Amendment considerations.

Hair and Prison in Nineteenth Century Law

Professor Chris Green points me toward a fascinating case decided by Justice Stephen Field in 1879 when he rode circuit in the District of California–Ho Ah Kow v. Nunan–also involving hair and prison. The case concerns a Chinese man who was imprisoned after he failed to pay a fine for violating a law limiting the number of people who could sleep in spaces of certain designated dimensions. While in prison, the man’s queue (a long braid worn on the back of the head) was cut off by the sheriff of the prison. The plaintiff claimed that the cutting off of his queue was a disgrace, a violation of his religious rights, and “is attended…with misfortune and suffering after death.” The sheriff defended on the ground that a San Francisco city ordinance required that every male prisoner’s hair must be “cut or clipped to an uniform length of one inch from the scalp thereof.” The plaintiff argued that the City lacked the authority to enact the ordinance and that the ordinance imposed “a degrading and cruel punishment upon a class of persons who are entitled, alike with all other persons within the jurisdiction of the United States, to the equal protection of the laws.”

The court agreed with the plaintiff. This particular so-called “queue ordinance” was specifically targeted against Chinese people (the opinion comments on the hostility of Californians toward the Chinese at the time) and enforced exclusively against them, notwithstanding the ordinance’s neutral and generally applicable language. The court also noted the importance of the burdensome effects of an ostensibly neutral and generally applicable law: “Many illustrations might be given where ordinances, general in their terms, would operate only upon a special class, or upon a class, with exceptional severity, and thus incur the odium and be subject to the legal objection of intended hostile legislation against them.” The ordinance was struck down on this ground alone.

But the court’s remarks about the relationship between hair-length regulations and various types of interests that the prison might advance are also worth thinking about:

The cutting off the hair of every male person within an inch of his scalp, on his arrival at the jail, was not intended and cannot be maintained as a measure of discipline or as a sanitary regulation. The act by itself has no tendency to promote discipline, and can only be a measure of health in exceptional cases. Had the ordinance contemplated a mere sanitary regulation it would have been limited to such cases and made applicable to females as well as to males, and to persons awaiting trial as well as to persons under conviction. The close cutting of the hair which is practiced upon inmates of the state penitentiary, like dressing them in striped clothing, is partly to distinguish them from others, and thus prevent their escape and facilitate their recapture. They are measures of precaution, as well as parts of a general system of treatment prescribed by the directors of the penitentiary under the authority of the state, for parties convicted of and imprisoned for felonies. Nothing of the kind is prescribed or would be tolerated with respect to persons confined in a county jail for simple misdemeanors, most of which are not of a very grave character. For the discipline or detention of the plaintiff in this case, who had the option of paying a fine of ten dollars, or of being imprisoned for five days, no such clipping of the hair was required. It was done to add to the severity of his punishment….

The claim, however, put forth that the measure was prescribed as one of health is notoriously a mere pretense. A treatment to which disgrace is attached, and which is not adopted as a means of security against the escape of the prisoner, but merely to aggravate the severity of his confinement, can only be regarded as a punishment additional to that fixed by the sentence. If adopted in consequence of the sentence it is punishment in addition to that imposed by the court; if adopted without regard to the sentence it is wanton cruelty.

Supreme Court Agrees to Hear Muslim Prisoner Beard Case

The United States Supreme Court has agreed to hear Holt v. Hobbs, the case of a Muslim prisoner in Arkansas who claims that prison officials violated his religious freedom under the Religious Land Use and Institutionalized Persons Act when they enforced their grooming policy against him. The policy forbids the growing of a beard. Here’s the opinion of the 8th Circuit.

The case is important because it zeroes in on the government’s burden under RLUIPA, and whether it needs to consider alternatives to its policy as well as policies that other prison systems have tried in order to satisfy the least restrictive means leg of RLUIPA. In 2005, the Supreme Court held unanimously in Cutter v. Wilkinson that RLUIPA does not violate the Establishment Clause.

Movsesian on the Rise of the Nones

Mark has a very interesting new paper on the growing importance of the “Nones”–those who claim no religious affiliation at all but by and large are neither atheists nor agnostics. Rather, the Nones reject institutional religious belief. As Mark puts it, “A better term for them might be religious ‘Independents,’ or the familiar ‘spiritual but not religious.’” The paper considers some of the legal ramifications of “none-ism,” including the relationship between group status and legal protection. Here’s the abstract.

The most important recent development in American religion is the dramatic increase in the number of people who claim no religious affiliation — the rise of the Nones. In this Working Paper, I discuss the social factors that explain the rise of the Nones–demography, politics, family, technology, a distrust of institutions generally–and explain what this development might mean for the definition of religion in American law. I focus on a recent federal appeals court case involving a self-styled spiritual adviser, “Psychic Sophie,” who claimed that following her “inner flow” constituted a religion meriting constitutional and statutory protection. I argue that the case is a close one. Protecting Nones as a religion would promote the important goals of state religious neutrality and personal autonomy. On the other hand, religion has always been understood in terms of community. Indeed, as Tocqueville saw, it is precisely religion’s communal aspect that makes it so important to liberal democracy. Granting Nones the status of a religion would fail to capture this important social benefit.

Why Not Repeal RFRA?

The media coverage of the now-vetoed Arizona bill amending the existing Arizona RFRA has been abominable. The claim that the bill would have permitted private businesses to refuse to serve gay people is simply untrue; the bill did not say that. The bill was short–just two pages long. Anybody could have read it quickly to see what it provided: expansion of state RFRA coverage for businesses and an amendment that private actions are now covered (as in, what the government cannot do directly, it cannot do indirectly by giving private parties a cause of action). The bill would have done nothing to change the basic burden-shifting framework of the Arizona RFRA–the same framework used by the federal RFRA–in which a judge is charged to determine whether there is a substantial burden counterbalanced by a compelling government interest achieved by the least restrictive means.

Perhaps that is the point, though. Anger against this bill is entirely misdirected. If one truly believes that laws which provide for the possibility of religious exemptions against generally applicable laws are anathema, the obvious course is to repeal the state and federal RFRAs themselves. Several prominent law and religion scholars have been advocating vigorously for just that result for some time. It appears that public sentiment is turning in their direction.

Announcing the Libertas Project

I’m delighted to post the following announcement about the “Libertas Project,” two workshops of which will occur this summer at Villanova Law School under the able direction of Associate Dean Michael Moreland. I’ll be participating as a moderator in the religious liberty workshop together with my friend, Zak Calo. See below for the call for applications to participate.

The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2014 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation.

To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants.

The dates for the 2014 summer workshops are July 7-9 on economic freedom and July 14-16 on religious freedom. Participants in the workshops will each receive an honorarium of $1500.

The workshop moderators will be Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom, and Marc DeGirolami (St. John’s University) and Zachary Calo (Valparaiso University) on religious freedom.

The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation.

Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are also available.

To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law (Moreland@law.villanova.edu) by April 30, 2014.

PROJECT DESCRIPTION

The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom.

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New Paper on the Distance Between Constitutional Theory and Constitutional Judging

Former Forum guest Kevin Walsh and I have a new paper that examines the relationship of and the separation between constitutional theory and constitutional adjudication. The article is called, Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory. There is a law and religion connection as well, as part of our discussion concerns cases decided by these judges involving perceived official favoritism of Christianity. Comments are most welcome, and I’ll try to have a bit more about the paper in the coming days and weeks. Here’s the abstract.

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?

This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.