Tag Archives: Comparative Law and Religion

Call for Papers: “Regulating Religion: Normativity and Change at the Intersection of Law and Religion”

NUSThe Faculty of Law at the National University of Singapore is soliciting papers for its upcoming conference, “Regulating Religion: Normativity and Change at the Intersection of Law and Religion.”   The conference will be held December 14-15, 2015.  A description of the conference follows:

In most eras and cultures, law and religion relate dialectically. Every major religious tradition strives to come to terms with law by striking a balance between the worldly and the spiritual, the structural and the mystical, the rational and the sacred. Every major legal tradition struggles to align its formal structures and processes with the beliefs and values of its people. Thus, while law and religion can be conceptualized as distinct spheres of human life, they do not exist independently but are constantly interacting with and influencing each other.

This workshop will engage emerging scholarship on the influence of religion on legal systems, both historically and currently, and vice versa. Regulation is our key focus. In simplest terms, we will consider how law regulates religion, and how religion responds to such regulations. The more complex question we ask is how the normativity becomes diversified and drives the regulatory dialectics between law and religion after the institutional development of the latter two. The workshop seeks to approach this question in three streams:

  1. Socio-political norms regulating religion. What social and political assumptions are we making when we make claims about the legitimate role of religion in public debate? What overarching social and political goals underlie how the law deals with issues of freedom of religion and freedom of religious expression? With the resurgence of religion into issues of public debate, how might religious considerations influence the formulation of contemporary legal norms, if at all?
  2. Constitutional and legal norms regulating religion. What can we learn from the different constitutional legal experiences and contexts of Asia and other parts of the world, given the importance of constitutional structures in framing, defining and governing the interactions of religion and law? What alternative models of arranging state and religion exist vis-à-vis the dominant constitutional model separating state from religion? How has the resurgence of public religion opened up the area of constitutional thinking?
  3. Religious norms regulating religion. What type of legal structures do religions have? How do religious traditions and communities perceive their interaction with religious laws? What demands do such internal rules make upon their religious faith and worship? Are all traditions ‘religio-legal’, i.e., as having claims that take the form of law over their adherents and others? What varying forms do they take? How do believers negotiate these internal rules and how can religious traditions change within this legal framework?

Information on the conference and paper submission guidelines can be found here.

Canada’s Hobby Lobby Moment?

Supreme Court justicesIn a landmark decision on March 19, the Supreme Court of Canada decided Loyola High School v. Quebec.  At issue in the case was whether Loyola High School, a private Catholic school, should be required to teach Quebec’s “Ethics and Religious Culture” curriculum in a “neutral” manner.  Loyola sought an exemption from the neutrality requirement when teaching the Catholic faith and the ethics portion of the course.  Although the Supreme Court divided 4-3 with respect to the rationale, it unanimously held that Loyola should be granted an exemption.

As Barry Bussey explains below, this case is significant because the Court came very near to granting corporations religious freedom rights (read Bussey’s full article here).  The extent to which corporations enjoy religious freedom protections was, of course, a controversial issue decided last year by the American Supreme Court in Hobby Lobby v. Burwell.  In that case, the American Court held that RFRA grants religious exercise rights to certain for-profit corporations.  It seems that the Canadian Supreme Court may be following the American lead, albeit incrementally. Here is Bussey (footnotes omitted):

While all seven members of the Court were of the view that Loyola’s freedom of religion was infringed, the Court split in its reasoning 4-3 over the issues of religious corporate rights and the remedy in the case. Both opinions held that religious freedom is not only an individual right but also includes communal dimensions. This is significant. Justice Abella recognized that “individuals may sometimes require a legal entity in order to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as the transmission of their faith.” But she did not think it was necessary to decide whether corporations enjoy religious freedom in their own right under s. 2(a) of the Charter to decide the case. Religious freedom, she maintained, must “account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.”

Justices McLachlin and Moldaver were unequivocal in their acceptance of the Charter’s protection of the “communal character of religion”:

The individual and collective aspects of freedom of religion are indissolubly intertwined. The freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which those individuals express their religious practices and through which they transmit their faith.

MacLachlin and Moldaver held that a corporation was entitled to religious freedom protection as long as it was constituted primarily for religious purposes and operated in accordance with those religious purposes.

Since a corporate organization does not demonstrate a sincere belief as an individual, it must show that its belief or practice is consistent with its purpose and its operation. Such beliefs and practises are more static and less fluid than those of an individual, which makes the inquiry into past practises and consistency of positions more relevant than it would be if the claimant were an individual. In this case, the beliefs and practises of Loyola were consistent and ought to be protected. The Minister’s refusal to accommodate those beliefs was in violation of the Charter right.

McLachlin and Moldaver’s decision forms a great foundation for a future case to clearly outline the boundaries of the religious freedom for religious corporate bodies. It is an incremental development in the right direction.

Call for Papers: The Legitimate Scope of Religious Establishment (March 7-9, 2016)

The Fondazione Studium Generale Marcianum in Venice has issued a call for papers for a conference, “The Legitimate Scope of Religious Establishment, to take place on March 7-9, 2016:

 How best to deal with the relationship between law and religion is one of the fundamental questions that every liberal democratic country must encounter. Comparative constitutionalism worldwide sees a large spectrum of state and religion models. The American model of separation, for instance, is an exception in liberal-democratic countries, where one can find a variety of ways in which religions get support from the state. In some democracies there is even explicit acknowledgement of one religion as the official religion of the state.

While it is clear that most democracies reject the idea that religion should be privatized, one is still hard pressed to ask: What are the essential features of establishment regimes? Should any limits be set to the establishment of religion? Are there any means of support that should necessarily be ruled out? May a decent state grant preferential treatment to one religion over other religions (or some of them)? If so, on what legitimate basis could this be done, and in what ways?

This workshop will be devoted to a discussion of these questions and other related topics. We are especially focused on papers that address normative questions about establishment of religion from a particular point of view, but comparative papers are welcome too. The keynote speaker will be Prof. Joseph Weiler.

Scholars are invited to submit a 2-3 page abstract (double-spaced) by April 15th, 2015. Abstracts will be evaluated by the organizing committee and decisions made in May 2015. Please direct all abstracts and queries to: gideon.sapir@biu.ac.il or andrea.pin@unipd.it.

CLR Participates in International Moot Court in Venice

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Posing a Question in Venice

As regular readers know, I’ve spent this week at a terrific new program at the Fondazione Marcianum in Venice, an international moot court competition on law and religion. The Marcianum gathered law student teams from the US and Europe to argue a hypothetical case before two courts, the European Court of Human Rights and the US Supreme Court. Along with Notre Dame’s Bill Kelley and Judge (and CLR Board member) Richard Sullivan of the SDNY, I served as a judge on the American court. That’s us, in action, above. Mark Hill of Cardiff University, Renata Uitz of Central European University, and Louis-Leon Christians of Catholic University of Louvain made up the European side. Both courts were ably assisted by PhD students from the Marcianum, who served as our shadow clerks, helping us with research and the development of our ideas.

The case was a very topical one. A private, family owned firm had dismissed an employee for making a negative comment about creationism, in violation of the business’s code of conduct, which prohibited anti-religious statements. In the European version, the domestic courts ruled in favor of the firm, and the employee brought a claim under Article 9 of the European Convention on Human Rights. In the American version, the employee sued for employment discrimination, arguing that he had been dismissed on account of his religious views; the employer maintained that, even if Title VII applied, RFRA allowed for an accommodation in these circumstances.

Lots of issues here, and the student teams did a remarkable job addressing them. Special credit goes to the two Italian teams, from the Universities of Milan and Macerata,who had to learn an entirely new legal system and argue in a foreign language. In the end, our panel gave the 500 euro award for best team to the entrants from Emory Law School. They did their school, and especially Emory’s Center for the Study of Law and Religion, proud. On the European side, the award went to the team from Inner Temple.

This was an absolutely wonderful event. It was a lot of work for the students and the judges (not that I’m complaining!), but extremely valuable and tremendous fun. I imagine the most valuable aspect, for the students, was learning how another legal system would handle these issues. The Americans were struck by the argument style in the European Court — 30 minutes of presentation followed by five minutes to answer questions from the bench — and the Europeans were surprised at the more assertive, freewheeling style of argument in an American court. But they adjusted very well.

I hope the Marcianum continues this event. Law and religion has gone global, and comparative law is an increasingly important component of a legal education on both sides of the Atlantic. I’ll write more when I return to NY, but, for now, a very warm thank you to the Marcianum for hosting this event, and especially to Professor Andrea Pin, who invited me and had a major role in the entire enterprise. And thanks to the readers of our blog who stopped by to say hello!

Movsesian at International Law & Religion Moot Court in Venice Next Week

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Home of the Marcianum in Venice

Next week, I’ll be in Venice for a new, three-day international law-and-religion moot court competition. Hosted by a research institute, the Fondazione Studium Generale Marcianum, the competition brings together law students from the US and Europe to argue a case on religious accommodation. I’ll be one of the American judges, along with Judge Richard Sullivan of the SDNY (and one of CLR’s Board members) and Professor William Kelley of Notre Dame Law School.

The organizers of the competition have come up with an interesting new approach. Two noted scholars, Silvio Ferrari of the University of Milan and Brett Scharffs of BYU, will offer an overview of the issues for the audience, and then the student teams will argue the case before two moot courts, one simulating the American Supreme Court and the other simulating the European Court of Human Rights. (The European judges are Louis-Leon Christians of the Catholic University of Louvain, Mark Hill of Cardiff University, and Renata Uitz of Central European University Budapest.) On the final day of the competition, each court will render a judgment and announce the winning team.

The Marcianum”s approach to the competition highlights the fact that law and religion issues have gone international. And it introduces students, especially American students, to the comparative legal method. It should be a wonderful learning experience and a lot of fun, and I’m grateful to the organizers, especially Professor Andrea Pin of the University of Padua, for inviting me. Any of our readers at the competition, please stop by and say hello. I’ll try to blog from Venice if occasion allows. Not sure you can blog from a gondola, though.

Salim, “The Transnational and the Local in the Politics of Islam”

This April, Springer Press will release “The Transnational and the Local in the Politics of Islam: The Case of West Sumatra, Indonesia” by Delmus Puneri Salim (University of Sydney).  The publisher’s description follows:

Islamic RegulationsThis book explores the relationship between transnational and local Islam as expressed in public discourse and policy-making, as represented in the local press. It does so against the background of local governments in majority Muslim regions across Indonesia promoting and passing regulations that mandate forms of social or economic behaviour seen to be compatible with Islam. The book situates the political construction of Islamic behaviour in West Sumatra, and in Indonesia more generally, within an historical context in which rulers have in some way engaged with aspects of Islamic practice since the Islamic kingdom era. The book shows that while formal local Islamic regulations of this kind constitute a new development, their introduction has been a product of the same kinds of interactions between international, national and local elements that have characterised the relationship between Islam and politics through the course of Indonesian history. The book challenges the scholarly tendency to over-emphasise local political concerns when explaining this phenomenon, arguing that it is necessary to forefront the complex relationship between local politics and developments in the wider Islamic world. To illustrate the relationship between transnational and local Islam, the book uses detailed case studies of four domains of regulation: Islamic finance, zakat, education, and behaviour and dress, in a number of local government areas within the province.

Hemming, “Religion in the Primary School”

This March, Routledge Press will release “Religion in the Primary School: Ethos, Diversity, Citizenship” by Peter Hemming (Cardiff University, UK).  The publisher’s description follows:

Religion in the Primary SchoolReligion and its relationship to schooling is an issue that has become more and more topical in recent years. In many countries, developments such as the diversification of state school sectors, concerns about social cohesion between ethnic and religious groups, and debates about national identity and values have raised old and new questions about the role of religion in education. Whilst the significance of this issue has been reflected in renewed interest from the academic community, much of this work has continued to be based around theoretical or pedagogical debates and stances, rather than evidence-based empirical research.

This book aims to address this gap by exploring the social and political role of religion in the context of the primary school. Drawing on original ethnographic research with a child-centred orientation, comparisons are drawn between Community and Roman Catholic primary schools situated within a multi-faith urban area in the UK. In doing so, the study explores a number of ways in which religion has the potential to contribute to everyday school life, including through school ethos and values, inter-pupil relations, community cohesion and social identity and difference. At the centre of the analysis are two key sociological debates about the significance of religion in late modern societies. The first is concerned with the place of religion in public life and the influence of secularisation and post-secularism on the relationship between religion and schooling. The second relates to the increasingly multi-faith nature of many national populations and the implications for religious citizenship in educational settings.

Religion in the Primary School will be a useful resource for academics, researchers and students as a key addition to existing knowledge in the disciplines of education, sociology and human geography. It will also be of value to both policy-makers and educationalists interested in the role of religion in schools and the implications for the wider community and society in a range of national contexts.

“Issues in Religion and Education” (Beaman & Van Arragon, eds.)

In March, Brill Publishing will release “Issues in Religion and Education: Whose Religion?” edited by Lori G. Beaman and Leo Van Arragon (University of Ottawa).  The publisher’s description follows:

Issues in Religion and EducationIssues in Religion and Education, Whose Religion? is a contribution to the dynamic and evolving global debates about the role of religion in public education. This volume provides a cross-section of the debates over religion, its role in public education and the theoretical and political conundrums associated with resolutions. The chapters reflect the contested nature of the role of religion in public education around the world and explore some of the issues mentioned from perspectives reflecting the diverse contexts in which the authors are situated. The differences among the chapters reflect some of the particular ways in which various jurisdictions have come to see the problem and how they have addressed religious diversity in public education in the context of their own histories and politics.

Law and Religion Australia

Professor Neil Foster at the University of Newcastle (Australia) has launched a new blog, Law and Religion Australia. The blog will cover mostly Australian issues — but which law and religion issues are purely domestic, now? — and will promote the cause of religious freedom. Looks very worthwhile. Welcome to the Blogosphere!

Aroney on Freedom of Religion as an Associational Right

The latest issue of the University of Queensland Law Journal is devoted entirely to issues of federalism and freedom of religion in Australia.  One article by Professor Nicholas Aroney, Freedom of Religion as an Associational Right, is particularly informative.  You can read the article in its entirety here.

In his article, Professor Aroney argues that the religious freedom clauses of the Australian Constitution (section 116), which were modeled after the American First Amendment, should be interpreted to protect not only individual rights, but also communal or associational rights.  In support of this contention, Professor Aroney provides an impressive textual and historical analysis of section 116.  He further shows how this interpretation is in accord with international law.

According to Professor Aroney, correctly interpreting section 116 is of fundamental importance, because to interpret it as protecting merely individual rights has the potential to severely weaken religious freedom. Here is Professor Aroney (footnotes omitted):

Efforts to impose an individualistic view of human rights … continue to be made by groups such as the Discrimination Law Experts Group, who argue that the rights of religious organisations engaging in ‘public sphere activities’ should simply be trumped by the rights of individuals ‘to be treated in a non-discriminatory way.’ The Public Interest Law Clearing House and the Human Rights Law Resource Centre have argued similarly, maintaining that permanent religious exceptions to antidiscrimination laws facilitate and condone discrimination by protecting ‘traditional social structures and hierarchies’. Although the context is that anti-discrimination laws apply only in certain ‘public’ contexts, the reasoning is not so limited. These arguments are not unlike that of Stephen Macedo, who advocates that modern liberalism must ‘constitute the private realm in its image’ by forcing citizens ‘to observe its limits’ and ‘pursue its aspirations’. Such persons are to be actively coerced, Macedo candidly asserts, ‘to help ensure that freedom is what they want’, even in ‘their most “private beliefs”’.

 The underlying individualism of this line of argument has been made clear by Margaret Thornton, who has argued that although the ICCPR protects the right to exercise freedom of religion ‘in association with others’, this right not only has to be balanced against the competing rights to equal treatment and non-discrimination, but all such rights need to be understood, fundamentally, as the rights of human beings – not of corporations – and so it is a ‘logical fallacy to extrapolate from an individual’s private beliefs to an impersonal for-profit corporation’. Thornton’s argument shows the weakness of religious freedom rights if they are conceptualised in reductively individualistic terms. This is because one would have to show, first, that certain individuals have particular religious convictions that are legally protected and, second, that these same individual rights are being expressed through the religious corporation’s rules or practices. If religious rights are conceptualised as inherently ‘private’ in this sense, it will be that much more difficult to establish that such rights are really being exercised as private rights in various domains of ‘public’ or ‘quasipublic’ life. But on the contrary, as has been seen, international human rights principles, while certainly premised on the rights of the ‘human person’, are not exclusively concerned to protect only individual rights or only private expressions of religious conviction.

Another problem with individualised conceptions of human rights in this domain is that such rights, although originally conceived as rights against the state, can nonetheless ‘double up as rights against everyone’. Accordingly, as Julian Rivers has shown, there are some for whom it is not sufficient that an individual has a right of ‘exit’ from his or her religious community. Rather, there is evidence ‘of a growing assumption that everyone who wishes should be able to join any religious body’ and that ‘membership tests are suspect’. The underlying assumption, in other words, is that ‘the preservation of religious identity on the part of civil society groups needs justification against the individual who does not share that identity’, even though to adopt such an approach ‘is potentially destructive of the identity of [all] non-State collectivities’. For if any individual can decide whether he or she qualifies for membership of an organisation, no organisation will be able to maintain its distinctive identity.

This reductio ad absurdum suggests that a radical individualist conception of religious liberty is simply incompatible with the existence of religious associations and communities as distinguishable groups within a society. Against such a view, William Galston has observed:

 It is not obvious as an empirical matter that civil society organisations within liberal democracies must be organised along liberal democratic lines… A liberal policy guided … by a commitment to moral and political pluralism will be parsimonious in specifying binding public principles and cautious about employing such principles to intervene in the internal affairs of civil associations. It will rather pursue a policy of maximum feasible accommodation, limited only by the core requirements of individual security and civic unity. That there are costs to such a policy cannot reasonably be denied. It will permit internal associational practices (e.g. patriarchal gender relations) of which many disapprove. It will allow many associations to define their membership in ways that may be viewed as restraints on individual liberty … Unless liberty – individual and associational – is to be narrowed dramatically, however, we must accept these costs.

 A reductively individualist conception of religious freedom is obviously opposed to the capacity of such groups to determine their own conditions of membership, but an excessively narrow associational conception may also have this effect, for there are many social groupings and traditional communities, including religions, in which membership does not initially arise by deliberate choice but by birth and circumstance. Whether voluntaristic or otherwise, unless such associations and communities are going to be understood, following Thomas Hobbes, as ‘worms in the entrails’ of the body politic, we need to recognise, as Harold Laski argued, that they are ‘as real, as primary, and self-sufficing as the whole [society]’. This does not mean of course that communal religious rights must always prevail. But it does mean that they ought to be treated with the same respect as the rights of individuals. As such, from a liberal point of view, what is most crucial in order to protect individuals is not the right to join (or remain) within a group, but the right to exit it. On this approach, the question of the legitimacy of a law which regulates a religious association becomes one of determining what conditions, if any, must accompany an effective exit right, understood to include the rights to associate, disassociate or not associate with a particular religious community on terms offered by that community. Alternatively, from a more communitarian point of view, what matters is that a religious group genuinely benefits its members and does not inappropriately interfere with the legitimate interests of those outside the group. These are large questions, of course, which lie beyond the scope of this article, the point of which has been to establish the associational and communal dimensions of religious freedom as a matter of principle.