First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion issues:

1) Randall P. Bezanson (University of Iowa College of Law), The Manner of Government Speech , forthcoming in Denver University Law Review, Spring 2010. The abstract states:

The government speech doctrine has evolved into a government speech forum doctrine in which the government has the power to exclude unwanted speech in the time, place, and space reserved for its forum. The article explores the possible limits than should be placed on the form of government expressive acts that take place in the government’s exclusive forum. The article is drawn from a speech presented originally at a symposium on government speech sponsored by the Byron R. White Center for the Study of American Constitutional Law at the University of Colorado.

2) Erin Daly (Widener University School of Law), Garcetti in Delaware: New Limits on Public Employees' Speech , 11 Del. L. Rev.23 (2009). The abstract states:

In 2006, the Supreme Court decided Garcetti v. Ceballos, 547 U.S. 410 (2006), which significantly altered the free speech rights of the more than 18 million Americans who are public employees for federal, state or local government. It revised the test it had formerly used for public employee speech and, in so doing, dramatically diminished the scope of their rights. This has significant implications not only for the individuals involved, but for the public at large, and for the praxis of democracy in America: by limiting what public employees can say about their workplaces, the Court has reduced the amount of information that Americans have access to about the functioning of government. Lower court cases implementing Garcetti confirm that public employees have far less recourse than before when they are punished for raising concerns about their government workplaces such as problems in environmental compliance, cost overruns, racial discrimination, and so on. This article examines the Garcetti decision and then reviews the Third Circuit and Delaware cases applying it.

3) Jennifer E. Rothman (Loyola Law School Los Angeles),  Liberating Copyright: Thinking Beyond Free Speech, forthcoming in 95 Cornell Law Review --- (2010. The abstract states:

Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious practice implicate fundamental rights. In such circumstances the application of copyright law deserves heightened scrutiny. The proposed liberty-based approach shores up arguments that some personal uses should be lawful and suggests that such uses should not be limited to those that are private and not for profit.

4) Heather Kennedy, Pleasant Grove v. Summum: Is Ten Truly Greater than Seven? An Examination of the Government Speech Doctrine Regarding Privately Donated Monuments Displayed on Public Land.  The abstract states:

In Pleasant Grove v. Summum, the United States Supreme Court held that it is constitutional for the City of Pleasant Grove, Utah to deny a religious group’s request to place a monument in a park even though a donated monument of the Ten Commandments was already on display there. This case note examines the progression of the law before this decision, as well as the changes it made and the possible repercussions to come.

5) Raphael Cohen-Almagor (University of Hull), Countering Hate on the Internet - A Rejoinder , 2  Amsterdam Law Forum 125 (2010). The abstract states:

Steve Newman of York University wrote a reply to my “Holocaust Denial Is A Form of Hate Speech”, Amsterdam Law Forum, Vol. 2, No 1 (2009), pp. 33-42. The Editors of Amsterdam Law Forum invited me to write a rejoinder, answering Newman’s critic. The result is this article in which I reiterate that Internet providers and web-hosting companies should abide by their own rules of conduct. If their terms of service disallow hateful messages on their servers then they should not host or provide forums for Holocaust denial. I further tell the story of Sabina Citron showing that Holocaust denial can cause people severe offence, upsetting them to the extent of loss in their self-esteem. Further, I argue that hate speech can and did translate to hate crime. Some hate mongers are not satisfied merely by the sound of their pounding words and wish to see blood. Finally, I propose ways for countering hate on the Net.

6) Perry Dane (Rutgers School of Law – Camden), Constitutional Law and Religion, in Dennis Patterson, ed., BLACKWELL COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY (2010). The abstract states:

This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on the efforts of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse.

7) Luc B. Tremblay (European University Institute - Department of Law) ,The Bouchard-Taylor Report on Cultural and Religious Accommodation: Multiculturalism by Any Other Name?. The abstract states:

In 2008, Gerard Bouchard and Charles Taylor released an important report as Co-Chairs of the Consultation Commission on Accommodation Practices Related to Cultural Differences. The Commission was set up by the Quebec government in response to public discontent concerning "reasonable accommodation" of religious and cultural practices. In the report, four delicate issues, among others, are examined: cultural integration, collective identity, church-state relations and the most appropriate procedures for handling cultural and religious harmonization requests. Altogether, the Co-Chairs’ positions propound a normative conception of sociocultural integration in a pluralist society. This conception, that may be called "interculturalism", is conceived by the commissioners as an alternative to "multiculturalism". The text examines whether interculturalism, as conceived in the report, is anything but a version of multiculturalism. The contention is that it is a rose by any other name.

8) Paul Sarfo-Mensah (Kwame Nkrumah University of Science - Bureau of Integrated Rural Development and Technology) and William Oduro (Kwame Nkrumah University of Science), Changes in Beliefs and Perceptions About the Natural Environment in the Forest-Savanna Transitional Zone of Ghana: The Influence of Religion . The abstract states:

The potential of traditional natural resources management for biodiversity conservation and the improvement of sustainable rural livelihoods is no longer in doubt. In sub-Saharan Africa, extensive habitat destruction, degradation, and severe depletion of wildlife, which have seriously reduced biodiversity and undermined the livelihoods of many people in rural communities, have been attributed mainly to the erosion of traditional strategies for natural resources management. In Ghana, recent studies point to an increasing disregard for traditional rules and regulations, beliefs and practices that are associated with natural resources management. Traditional natural resources management in many typically indigenous communities in Ghana derives from changes in the perceptions and attitudes of local people towards Tumi, the traditional belief in super natural power suffused in nature by Onyame, the Supreme Creator Deity. However, this is closely entwined with ecological, demographic and economic factors. Whilst these factors have driven the need to over-exploit natural resources, a situation which threatens the sustainability of community forests including sacred groves, religion has been used to justify such actions. This paper explores changes in Tumi and the sustainability of sacred groves in the forest-savanna transitional zone in Ghana. It would confirm that changes in traditional animist beliefs, such as tumi, which informs the worldview of local people and underlies traditional natural resources management, is mainly due to the advances made by Christianity and Islam.

9) Bassam Yousef Ibrahim Banat (The University of Granada, Department of Sociology, Faculty of Political Sciences & Sociology),  Palestinians Suicide Martyrs (Istishhadiyin): Facts and Figures,
Doctoral Dissertation, Department of Sociology, Faculty of Political Sciences and Sociology, The University of Granada, Spain, 2010. The abstract states:

The current thesis explores the Palestinian suicide martyrs (Istishhadiyin) and the martyrdom operations from the point of view of their families and relatives. The study has tackled the issue of martyrdom operations as a multi dimensional phenomenon addressed by both theoretical and applied researches. The thesis addressed a new social phenomenon which spread in the Palestinian society in all its groups, youth and social classes. The Palestinian suicide martyrs (Istishhadiyin) were able to implement two hundred qualitative martyrdom operations that rocked Israel and raised a large scale wave of reactions locally and internationally; they constituted a turning point in the history of the Palestinian-Israeli conflict; it is rare to find a similar phenomenon to this one with this huge number of Palestinian suicide martyrs in any other place in the world. They have their own psychological, social, religious and national features which qualified them to do this strategic action. Besides, the thesis focuses on identifying the main motives which drove the Palestinian youth to carry out such operations and the relationship between the emergence of these operations and Israeli crimes committed against the rights of the unarmed Palestinian people.

To sum up, the current thesis is considered the first survey study of the Palestinian suicide martyrs (Istishhadiyin). It is expected that its results would add new scientific knowledge to its field in particular since it discusses a new and important topic in the history of Palestinian struggle. The thesis will be an important source of reference to those concerned in the area of martyrdom operations especially in the information it will reveal on the phenomenon, which crossed beyond the borders of Palestine to become a world phenomenon. The researcher in honored by this national duty to be the first performer of this duty within his own potentials as being one of the researchers of the topic of Palestinian suicide martyrs in a scientific survey.

10) Faisal Rabby and William M. Rodgers III (Rutgers University), The Impact of 9/11 and the London Bombings on the Employment and Earnings of U.K. Muslims. The abstract states:

Using a difference-in-differences framework, this paper estimates the impact that Britain's July 2005 bombings had on the labor market outcomes of UK residents who are either Muslim by religious affiliation or whose nativity profiles are similar to the terrorists. We find a 10 percentage point decrease in the employment of very young Muslim men relative to non-Muslim immigrants after the London bombings. The drop in employment is accompanied by consistent declines in real earnings and hours worked. A weak association between the 9-11 terrorist attacks and a drop in the employment of very young male immigrants from Muslim-majority countries is also found. The terrorist events had little impact on the employment of older men.

11) Pute R. Makol-Abdul ( International Islamic University Malaysia), Abu Sadat Nurullah (University of Alberta - Department of Sociology) , Syed S. Imam ( International Islamic University Malaysia), and Saodah A. Rahman (International Islamic University Malaysia), Parents’ Attitudes Towards Inclusion of Sexuality Education in Malaysian Schools, 3 International Journal about Parents in Education 42 (2009). The abstract states:

The present study examined the attitudes of Malaysian rural parents regarding sexual health education in elementary schools. Using a comprehensive list of sex education topics, parents were asked to examine which topics they believed should be taught at schools. In addition, the study also assessed the relationship between parents’ demographic characteristics such as age, gender, education, and occupation and their approval of sexual health education. The respondents of the study included parents (n=211) of children registered in four selected schools in Kedah, Malaysia. The majority of them (73%) supported the inclusion of various sexual health topics in school curriculum provided the contents were in line with religious teachings. The study has generated important empirical findings regarding local community’s response to school-based sexuality education. This information is needed in facilitating the development of sexual health policy at various institutional levels, and in the effective implementation of sexual health curriculum in Malaysian schools.

12) Frederick C. DeCoste (Faculty of Law, University of Alberta), Caesar's Faith: Limited Government and Freedom of Religion in Bruker v. Marcovitz, 32 Dalhousie Law Journal 153 (2009). The abstract states:

The Supreme Court of Canada has long pursued the view that our law is somehow an expression and repository of what it terms "Canada's fundatmental values." In Bruker v. Marcovitz -- a case that concerned the enforceability of a promise by a divorcing Jewish husband to provide his wife Get, a religious divorce -- the Court added to the catalogue of these judicially decreed and enforced values one concerning religion, namely, the protection of Canadians against the arbitary disadvanagtes of their religions. This comment argues that the Court's judgment in this regard constitutes a fundamental threat to religious liberty inasmuch as it subordinates religious belief and practice to state values by making the legal acceptability of the former turn on their conformity to the latter.

13) Juliet P. Stumpf (Lewis & Clark Law School), The Implausible Alien: IQBAL and the Influence of Immigration Law, 14 Lewis & Clark Law Review --- (2010). The abstract states:

This Article addresses the subterranean impact of immigration law on the outcome of Ashcroft v. Iqbal, a watershed case for civil pleading standards. In a new generation of cases seeking remedies for alleged mistreatment by high-level government officials, immigration law is exercising a quiet but powerful influence. Due to Iqbal, that influence will have a tremendous impact on the survival of civil complaints generally. The Supreme Court’s adoption of a heightened civil pleading standard results from the limits that the immigration context placed on the scope of Iqbal’s claims. This Article unearths the relevance of Iqbal’s immigration status through comparison with two cases that apply Iqbal’s holding to U.S. citizens in circumstances strikingly similar to Iqbal’s, yet rule in favor of the plaintiffs. In each case, the courts seized upon U.S. citizenship as the distinction that made the difference. The Article concludes that Iqbal relies on a questionable subtextual link between immigration law, national security, and ethnicity and religion.

14) Kristine Pham, The Substantial Burden Mountain: Implications of the United States Supreme Court’s Denial of Certiorari in Navajo Nation v. United States Forest Service. The abstract states:

As a result of judicial and legislative developments, the substantial burden inquiry has become the first step of any free exercise challenge under RFRA, RLUIPA, the respective state legislative version of RFRA, the state constitutional provisions mirroring RFRA, and all federal laws that are not neutral or are not of general applicability. Thus, the substantial burden analysis has far-reaching implications not only in the context of religious practices affected by state action, but also for actions requiring federal permits, grants, or loans and federal land use actions. Despite the importance of the substantial burden inquiry, courts have not agreed on what constitutes a substantial burden short of criminal sanctions on religious exercise or compelled actions contrary to belief. Rather than providing much needed guidance to the lower courts, the Supreme Court recently denied certiorari in Navajo Nation IV, leaving Navajo Nation v. United States Forest Service, (Navajo Nation III) as the most current and most significant guidance on the substantial burden inquiry. Unfortunately, the United States Ninth Circuit Court of Appeals in Navajo Nation III seems to have made the substantial burden threshold unduly restrictive, making a successful free exercise challenge virtually impossible.

Part I of this Article summarizes the historical development of Supreme Court cases that have guided the substantial burden analysis. Over time, the Court has added a variety of factors that have made it increasingly confusing for lower courts to apply the substantial burden test. The resulting conflict and confusion in the United States Circuit Courts regarding the proper definition of “substantial burden” is presented in Part II. Part III is a close examination of Navajo Nation III in an attempt to clarify how substantial burden should be analyzed. Finally, Part IV places Navajo Nation III in the context of existing substantial burden jurisprudence, recognizing that a Supreme Court decision on this issue may be necessary.

15) Arnold H. Loewy (Texas Tech University - School of Law), Intelligently Designing a Course in Intelligent Design. The abstract states:

Intelligent Design is consistent with creationism or evolution. Evolution (the opposite of creationism) could have occurred with or without an intelligent designer. The opposite of intelligent design is atheism. A course that explores the probabilities of intelligent design and atheism, indoctrinating neither but exploring and testing on both neither favors nor disfavors religion, and thus is constitutional. It is wise to teach such a course in the senior year of high school because it will teach students to think.

16) Ashraf Mohammed Hasan Abukhayran (The University of Granada), Palestinian Curriculum from an Israeli Perspective. The abstract states:

This study explores the Palestinian curriculum from an Israeli perspective. Israelis accused the Palestinian school books do not teach the notions of peace and coexistence with Israel, but plant the seeds of hate in upcoming Palestinian generations through their delegitimization of Israel’s existence, hotbed of anti-Israeli and anti-Semitic, implicit seeking of Israel’s destruction, defamation of Israel and encouraging militarism and violence. Findings show that the consensus of expert opinion on Palestinian Authority schoolbooks is quite different from what Israelis accused. The overall orientation of the Palestinian curriculum is peaceful in spite of the harsh and violent realities in which schools operate; they are focusing on teaching human rights concepts, justice, peace, equality, freedom, and tolerance, in terms of both self and others, and it encourages tolerance among religions and ask students to respect the freedom of religion and protect religious places as well. They tell history from a Palestinian point of view and reflect Palestinian life and reality as victims, as well as the diversity within Palestinian society, taking into consideration his culture, norms, heritage, values, and believes. Accordingly, Palestinian curriculum should teach Palestinian history from a Palestinian, rather than a Zionist, perspective. Finally, Palestinian school books are not perfect since they are under continual revision and improvement.

17) Cosmin Dariescu (Alexandru I. Cuza University of Iasi), Jurisdiction Over Marriage in the Romanian Principalities: From the Ecclesiastical Court to the Secular Tribunal, in Szabolcs Hornyak, Botond Juhasz, Krisztina Korsosne Delacasse, Zsuzsanna Peres,eds., TURNING POINTS AND BREAKLINES: YEARBOOK OF YOUNG LEGAL HISTORY 4,( Martin Meidenbauer, Munchen, 2009). The abstract states:

In the Romanian principalities, Wallachia and Moldavia, the dominant religion was the Christian Orthodox faith. According to the Byzantine tradition, between the Orthodox Church and the Prince there was a strong alliance and the Metropolitan Bishop was the second important man in the state after the ruler.

The Orthodox Church brought in Wallachia and in Moldavia the first written laws. They were Byzantine nomocanons ( that is collections of Canon law and Secular law) that arrived from Constantinople through the medium of the South Slavs. In the 17-th century, the Orthodox Church in Moldavia and in Wallachia translated into Romanian language these nomocanons and combined them creatively into the first Romanian written laws.

Therefore, the Orthodox Church had in both principalities, an extensive jurisdiction over clerics and laics. The ecclesiastical courts were: the bishops and the Metropolitan Bishop ( when he judged he was assisted by other clerks and all this assembly was named dicasteria or the Tribunal of the Metropolitanate).

Because marriage is one of the seven mysteries of the Christian Church (Catholic or Orthodox), the Tribunal of the Metropolitanate was the only court in Moldavia and Wallachia which could rule over matrimonial litigations. This position is certified by documents of the 18-th century and by the law codifications from the first half of the 19-th century. The other bishops restrained themselves from deciding in matrimonial litigations. They made only the judicial investigation and sometimes they suggested a solution. However, only the Metropolitan Bishop with his tribunal decided in such cases with the approval of the Prince, who was the supreme judge.

The Constitutional Regulations of Wallachia and The Constitutional Regulations of Moldavia ( both enforced under Russian occupation in 1831, respectively 1832) tried to separate the jurisdictional power from the executive one and in Article 240 ( 298 for Moldavia) provided that the Metropolitan bishop and the other bishops had jurisdiction only over ecclesiastical and spiritual matters. According to Article 7 of the Constitutional Convention of the United Principalities ( Paris, 1858), the judicial power had to be entrusted by the Prince to magistrates (whose appointment and promotion had to be regulated by a special law based on the gradual enforcement of the immovability principle).

But the clerical jurisdiction over marriage survived. Thus, the Law for the establishment of the Court of Cassation and Justice of January 12, 1861 provided in Art. 2 that the clerical courts which in fact had some attributions in matrimonial matters were subjected to the jurisdiction of the Court of Cassation and Justice, as well as all the tribunals and courts of appeal from the United Principalities of Moldavia and Wallachia.

The clerical tribunals lost their jurisdiction over matrimonial litigations only through the Law for the judicial organization of April 11, 1864. The clerical tribunals were not enumerated in Article 3 among the courts that served justice in Romania ( the new name taken in 1862 by the United Principalities). Thus, the Orthodox Church lost completely its civil and criminal jurisdiction over Romanian citizens. The Orthodox Church kept only the disciplinary jurisdiction over clergy.

18) Michael D. Makowsky,(Towson University - Department of Economics), A Theory of Liberal Churches. The abstract states:

There is a counterintuitive gap in the club theory of religion. While it elegantly accounts for the notable success of strict sectarian religious groups in recruiting members and maintaining commitment, it exhibits less satisfactory properties when used to account for groups requiring neither extreme nor zero sacrifice. Such corner solutions, compared to the moderate middle, are rarely observed empirically. Within the original representative agent model, moderate groups are everywhere and always a suboptimal choice for rational, utility maximizing agents. In this paper, we extend the original model to operate within a multi-agent computational context, with heterogeneous agents occupying coordinates in a two dimensional lattice, making repeated decisions over time. Our model offers the possibility of successful moderate groups, including outcomes wherein the population is dominated by moderate groups. The viability of moderate groups is a result of heterogeneous agent wages. Lower wage agents offer greater time contributions, but lesser financial contributions to groups. Higher sacrifice rates incentive greater contributions from members, but reduce private productivity and screen out other potential members with greater financial resources. Moderate groups succeed by offering an optimal balance of these countervailing forces.

19)  Erin N. East, Comment - I Object: The RLUIPA as a Model for Protecting the Conscience Rights of Religious Objectors to Same-Sex Relationships, 59 Emory L. J. 259 (2009). The abstract states:

In most states, the battle over same-sex marriage has become a showdown with either gay rights activists or religious conservatives prevailing. Each side is fearful of losing ground to the other. Many scholars have noted the threats to religious liberty that arise upon the recognition of same-sex marriage, but few have given significant attention to how religious liberty might be protected without abolishing the rights of same-sex couples. This Comment focuses on one manifestation of the conflict between same-sex rights and religious liberty: the conflict that arises when individuals and organizations are compelled by their religious beliefs to violate state civil rights statutes protecting same-sex couples. Such violations expose them to civil liability for acting in accordance with their religious beliefs.
This Comment examines the shortcomings of the United States Supreme Court’s current free exercise jurisprudence as well as current broad-based statutes like the Religious Freedom Restoration Act (RFRA) in protecting religious objectors in the context of same-sex rights. It then proposes a number of possible ways to protect religious objectors, concluding that while state statute-specific exemptions would be a more direct, and perhaps preferred, method of protecting religious objectors, the absence of state solutions and the need to implement a uniform approach to rights of conscience suggest a federal approach. A statute modeled on the Religious Land Use and Institutionalized Persons Act, (RLUIPA) would provide a more comprehensive and balanced approach than the funding legislation that has typically been used by Congress to protect other types of conscience rights. By providing some protection for religious individuals, such a federal conscience statute could lessen the tension between advocates for gay rights and advocates for religious liberty. While this Comment focuses explicitly on certain classes of religious objectors in the context of same-sex rights, the proposed solution could include provisions covering any class of religious objectors.

JFB