Tag Archives: Religious Discrimination

Bielefeldt et al, “Freedom of Religion or Belief”

In March, the Oxford University Press will release “Freedom of Religion or Belief: An International Law Commentary,” by Heiner Bielefeldt (United Nations Special Rapporteur on freedom of religion or belief), Nazila Ghanea (University of Oxford), and Michael Wiener (Office of the UN High Commissioner for Human Rights and University of Oxford).  The publisher’s description follows:

Violations of religious freedom and violence committed in the name of religion grab our attention on a daily basis. Freedom of Religion or Belief is a 9780198703983key human right, the International Covenant on Civil and Political Rights, numerous conventions, declarations and soft law standards include specific provisions on freedom of religion or belief. The 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief has been interpreted since 1986 by the mandate of the UN Special Rapporteur on freedom of religion or belief. Special Rapporteurs (for example those on racism, freedom of expression, minority issues and cultural rights) and Treaty Bodies (for example the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child) have also elaborated on freedom of religion or belief in the context of their respective mandates.

Freedom of Religion or Belief: An International Law Commentary is the first commentary to look comprehensively at the international provisions for the protection of freedom of religion or belief, considering how they are interpreted by various United Nations Special Procedures and Treaty Bodies. Structured around the thematic categories of the United Nations Special Rapporteur’s framework for communications, the commentary analyses the limitations on the wearing of religious symbols and vulnerable situations, including those of women, detainees, refugees, children, minorities and migrants, through a combination of scholarly expertise and practical experience.

Fox, “The Unfree Exercise of Religion”

In February, the Cambridge University Press will release “The Unfree Exercise of Religion: A World Survey of Discrimination Against Religious Minorities,” by Jonathan Fox (Bar Ilan University).  The publisher’s description follows:

Religious discrimination is the norm in many countries around the world, and the rate is rising. Nearly every country which discriminates9781107133068 does so unequally, singling out some religious minorities for more discrimination than others. Religious tradition does not explain this complex issue. For example, Muslim majority states include both the most discriminatory and tolerant states in the world, as is also the case with Christian majority states. Religious ideologies, nationalism, regime, culture, security issues, and political issues are also all part of the answer. In The Unfree Exercise of Religion Jonathan Fox examines how we understand concepts like religious discrimination and religious freedom, and why countries discriminate. He makes a study of religious discrimination against 597 religious minorities in 177 countries between 1990 and 2008. While 29 types of discrimination are discussed in this book, the most common include restrictions in places of worship, proselytizing, and religious education.

  • Examines how we think about concepts like religious discrimination and religious freedom, which are often used but rarely examined and defined, helping readers think more systematically about these topics
  • Discusses evidence that religious discrimination is the norm rather than the exception and is on the rise, even in democracies
  • Seeks to help undermine incorrect stereotypes and assumptions on the topic of religious discrimination

Thoughts on Religious Discrimination from the Cairo Geniza

For nearly a thousand years the geniza (manuscripts storage room) of the main Cairo synagogue housed hundreds of pages of manuscripts. These were not records of Talmudic scholars or religious rituals. Rather, they documented the commercial activities of Jewish merchants within the medieval Islamic world. They reveal large scale, long distance trade managed by a tightly knit group of co-religionists. The Cairo Geniza, as it is called, has long been recognized as a treasure trove for economic historians. It also, however, raises very contemporary questions about the relationship between religion, the market, and the law.

The Cairo Geniza merchants were successful in large part because they were Jewish. The bonds of faith and the ability of their religious community to monitor and punish its members generated high levels of trust. Trust, in turn, allowed the Jewish merchants of Cairo to create far more complex economic organizations than would have been possible in the absence of that trust.

The experience of the Cairo Geniza merchants has been repeated many times over. Religious identity has frequently formed the basis for commercial relations by fostering trust and concern between those that might otherwise have been strangers to one another. Examples include the crypto-Jewish “conversos” of early modern Iberia, Quaker merchants in the eighteenth century, and Catholic and Jewish immigrants to the United States in the late nineteenth and early twentieth centuries. Similar networks exist today among groups as diverse as Korean immigrant churches and Mormon lawyers in Washington, D.C.

While the Cairo Geniza manuscripts reveal a commercial world in which religious identity is crucial, modern anti-discrimination law is premised on a vision of the marketplace in Continue reading

Fredette, “Constructing Muslims in France: Discourse, Public Identity, and the Politics of Citizenship”

Next month, Temple University will publish 2272_regConstructing Muslims in France: Discourse, Public Identity, and the Politics of Citizenship, by Jennifer Fredette (San Diego State University). The publisher’s description follows.

The standing of French Muslims is undercut by a predominant and persistent elite public discourse that frames Muslims as failed and incomplete French citizens. This situation fosters the very separations, exclusions, and hierarchies it claims to deplore as Muslims face discrimination in education, housing, and employment.

In Constructing Muslims in France, Jennifer Fredette provides a deft empirical analysis to show the political diversity and complicated identity politics of this relatively new population. She examines the public identity of French Muslims and evaluates images in popular media to show how stereotyped notions of racial and religious differences pervade French public discourse. While rights may be a sine qua non for fighting legal and political inequality, Fredette shows that additional tools such as media access are needed to combat social inequality, particularly when it comes in the form of unfavorable discursive frames and public disrespect.

Presenting the conflicting views of French national identity, Fredette shows how Muslims strive to gain recognition of their diverse views and backgrounds and find full equality as French citizens.

Can a Church Refuse to Sell Property Because of a Buyer’s Religion?

Here’s a bleg for you law and religion fans. Rod Dreher had an interesting post last week about the continuing division in the Episcopal Church over doctrinal issues. Several parishes, and even a few dioceses, if I’m not mistaken, have sought to leave the Episcopal Church because of the church’s liberal stand on issues like homosexuality. These parishes typically affiliate with Anglican bishops who remain committed to traditional doctrine.

Often, the departing congregations wish to maintain control of church property. Because of the way the relevant deeds and other legal documents are written, though, and because of the church autonomy principle, the congregations typically lose. Rod reports that the Episcopal Church has spent about $26 million litigating all the cases–an astounding figure, when you think about it.

All this is straightforward, legally speaking. But Rod’s post raises an issue I hadn’t thought about. When a departing parish in Binghamton, New York, sought to purchase its church building for $150,000, the Episcopal Church refused to sell. Apparently, the Church’s presiding bishop, Katharine Jefferts Schori, has adopted a policy of refusing to sell church property to any group that intends to affiliate with an Anglican bishop. The Episcopal Church has sold off property to Baptists, Methodists, Jews, and Muslims, but not Anglicans. In the Binghamton case, the Church eventually sold the property to a mosque which paid only $50,000 for it–one-third what the departing congregation had offered to pay.

So, here’s the question. Is it legal for a church to refuse to sell church property solely because of the buyer’s religion? You’d think there would be an easy answer, but I haven’t been able to find one. The federal civil rights laws prohibit religious discrimination in residential sales, but that wouldn’t apply to church buildings. Some state civil rights laws apply to commercial property, but there are exemptions for religious groups–and anyway, these cases don’t involve commercial property, either. In the federal employment anti-discrimination laws, a specific exception exists for religious bodies that discriminate on the basis of religion, and a couple of years ago, in the Hosanna-Tabor case, the Supreme Court held that the Constitution allows religious bodies to discriminate with respect to the employment of ministers. Would there be an analogous carve-out from non-discrimination principles for churches that do not wish to sell their sanctuaries to religious rivals? Any ideas?

Targeting, Unequal Application, and Free Exercise

This may be obvious to readers of this blog, but perhaps it’s worth noting anyway in light of the somewhat loose way in which news outlets sometimes speak of “constitutional violations.” Several places are reporting that non-profit organizations with religious affiliations are complaining that they were dealt with improperly by the Internal Revenue Service.

I want first to emphasize that I do not know whether the allegations are true. I strongly suspect that nobody who is likely to comment on my post will know that information. For purposes of this post, I will only assume that they are true, in order to inquire about whether groups with these complaints, under such circumstances (and again, if true), would have a cause of action under the Free Exercise Clause (I am leaving RFRA to the side).

Most readers are familiar with Employment Division v. Smith, which held that neutral laws of general application do not violate the Free Exercise Clause even if their impact especially burdens a religious person or group. A subsequent case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, involved a particular religious group’s plans to create a new house of worship where they would engage in ritualistic animal sacrifice. In response to these plans, the City enacted various ordinances prohibiting animal sacrifice, but exempting pest control measures, hunting, kosher slaughtering, and private slaughtering of hogs and cattle. The ordinance outlawing “sacrificing” an animal defined sacrifice as “to unnecessarily kill, torment, torture, or mutilate in a public or private ritual or ceremony not for the primary purpose of food consumption.” The Court struck down these ordinances as violations of the Free Exercise Clause.

How might these cases apply here? Suppose that the government’s explanation for delaying and/or denying a particular group’s application for tax-exempt status was that the group “is not educational” or “is political” or “does not present all views.” As to religion, this sounds like a facially neutral rule under Smith. The government could in theory apply a prima facie rule that says, “No groups will receive tax-exempt status unless they are educational, a-political, and representative of all views” without violating the Free Exercise Clause as interpreted by Smith (of course, it would be violating other provisions of the Constitution, but I am focusing specifically on free exercise).

Things don’t end there, though. One might think that the problem is not one of facial neutrality, but instead of discriminatory motivation. The complaint would be that the rule isn’t really neutral at all because the motivations of the government were to target particular religious beliefs. But though it is often thought that Lukumi rested on the ground of discriminatory motivation or “targeting,” it did not. Only two Justices–Kennedy (writing for the majority) and Stevens (who joined him on this point)–relied on the history of the adoption of the ordinances to reach the conclusion that they were motivated by the City’s desire to suppress or stamp out religious groups that it disliked. The real ground of decision did not have to do with discriminatory motivation, but with unequal application of the law. The question here would be–given the admittedly religion-neutral purposes of the law (education, a-political qualities, viewpoint inclusion), is the law being applied in a way which disvalues or is unfair to religious beliefs? A law which is applied selectively against religious groups cannot be “narrowly tailored” to the government’s aims, and the failure of that narrow tailoring in turn suggests that the government’s interest in the laws is not compelling. Subjective motivations are not relevant in this sort of inquiry; only the record of the law’s aims and application is.

One might wonder whether this difference is important. A law that is motivated by the desire to “target” religious groups will generally fail to be narrowly tailored to achieve a compelling state interest. But not always. A law might “target” religious conduct on the ground that the religious conduct presents special dangers. Suppose a religious group has a ritual in which it tests its members with a “leap of faith” off a fourth-floor balcony. After five people have died, the town enacts a law which forbids people from jumping off of buildings. That law might be motivated by the wish to “target” this religious conduct, and the law likely would be valid even if nobody but members of the religious group engaged in the conduct. But a different question arises if the law proscribes certain dangerous conduct that is religiously motivated but continues to allow equally dangerous activity that is not motivated by religious belief (tightrope walking across two skyscrapers, for example). Take away the “dangerous” (to humans, that is) and this is what was happening in Lukumi. The difference does not, at least according to Lukumi, have to do with the subjective motivations of the “targeting” legislators, but with the extent to which unequal application of the law evinces a devaluation of religion.

In like fashion, it seems to me that with respect to the IRS situation, the issue for purposes of a Free Exercise Clause claim would turn not on evidence of the government’s subjective intention to “target” particular religious groups, but on the ways in which a putatively neutral law or rule was applied to religious and non-religious applicants for tax-exempt status alike.

Tebbe (ed.), “Religion and Equality Law”

This June, Ashgate Publishing will publish Religion and Equality Law edited by Nelson Tebbe (Brooklyn Law School). The publisher’s description follows.

The essays selected for this volume address topics at the intersection of religion and equality law, including discrimination against religion, discrimination by religious actors and discrimination in favor of religious groups and traditions. The introduction provides a conceptual guide to these types of inequality – which are often misunderstood or conflated – and it offers an analysis of different species of discrimination within each broad category. Each section of the volume contains both theoretical essays, which set out frameworks for thinking about the relevant type of inequality, and essays that examine real-world disputes. For example, the articles address the conflicts over headscarf laws in France and Turkey, the place of so-called traditional religions in Africa, the display of Roman Catholic crucifixes in Italian classrooms, and the ability of American religious organizations to be free of employment laws in their treatment of clergy. This volume brings together classic articles which are otherwise difficult to access, enables students to study key articles side-by-side, and provides instructors with a valuable teaching resource.

Pei on Burqa Bans and the European Court of Human Rights

Sally Pei (Yale University Law School) has posted Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights. The abstract follows.

Over the past decade, Europe has been the site of strident debates over integration and Islam. One major pole of controversy is the trend toward enacting legislation to prohibit Islamic veils from public places. Laws banning face coverings, already in force in France and Belgium, are under consideration in a number of European countries, including the Netherlands, Italy, and Switzerland. The laws raise fundamental questions about what it means to be French, Belgian, Dutch, or indeed European. But the bans are of special interest for another reason: They provide a likely testing ground for the nascent nondiscrimination jurisprudence of the European Court of Human Rights (“the Court”), and a potential opportunity to bolster legal safeguards against discrimination at the regional level.

The laws might seem to invite an obvious challenge on the grounds that they deny the right to religious freedom guaranteed by Article 9 of the European Convention. But previous cases addressing restrictions on religious dress have sharply narrowed that avenue for redress. This Comment argues, however, that Article 14 nondiscrimination claims can fill that void. The Court’s Article 14 jurisprudence has long been criticized for its limited scope and application, but a recent line of cases in the education context evinces the emergence of a new doctrinal approach to discrimination. Properly applied and reinforced, that case law could mature into a general analytical framework for addressing the claims likely to arise from anti-burqa legislation and other discriminatory measures.

Calabresi and Salander on Religion and the Equal Protection Clause

Here’s an important new paper,  Religion and the Equal Protection Clause, arguing that the Fourteenth Amendment independently forbids state action that discriminates on the basis of religion, even without incorporation of the First Amendment’s Establishment and Free Exercise Clauses. Steve Calabresi (Northwestern) and a student co-author defend this novel claim by looking to the Fourteenth Amendment’s original meaning. They also reference trends in foreign constitutional and international human rights law. (Originalism and comparative constitutionalism – there’s an unusual combination). The wide-ranging and provocative paper also argues that public education, as currently funded, is unconstitutional. Here’s the abstract:

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter on the basis of religion. We defend our argument that the Fourteenth Amendment bans Continue reading

District Court Dismisses Muslims’ Suit Against FBI Under State Secrets Doctrine

A federal district court in California ruled Tuesday that the state secrets doctrine precludes a religious-discrimination lawsuit local Muslims had filed against the FBI. Plaintiffs alleged that the FBI had violated their constitutional and civil rights by conducting “an indiscriminate ‘dragnet'” that “gathered information about them and other innocent Muslim Americans in Southern California” solely on the basis of their religion. Specifically, they alleged that the FBI had employed a covert operative to conduct surveillance of mosques and Muslims in southern California. The court ruled that litigation of plaintiffs’ claims would “require or unjustifiably risk disclosure of secret and classified information regarding the nature of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies.” The court made its decision, with obvious reluctance, on the  basis of Attorney General Eric Holder’s formal invocation of the state secrets privilege and the court’s own “skeptical” examination of the FBI’s public and classified, ex parte, submissions. Plaintiffs, represented by the ACLU, plan to appeal. The case is Fazaga v. FBI, 2012 WL 3327092 (C.D. Cal., Aug. 14, 2012).