First Amendment Scholarship Update - Religion

Here is this week’s collection of newly available scholarship addressing religion issues:

1) Mike Newdow, Question to Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics?, forthcoming in Capital University Law Review. The abstract states:

In June 2005, Justice Antonin Scalia contended that 'the Establishment Clause...permits the disregard of devout atheists.' This statement is extraordinary inasmuch as it appears to reverse an inexorable (albeit, at times, wandering) trend toward true equality. Thus, where individuals had previously been treated as less than equal on the basis of race (e.g., Dred Scott v. Sandford), gender (e.g., Bradwell v. State) and national origin (e.g., Korematsu v. United States), those odious decisions are no longer good law. In his McCreary dissent, it seems that Justice Scalia sought motion in the opposite direction: toward overturning equality, in the one constitutional arena where the Supreme Court had not previously proclaimed such a manifest animus toward minorities: religion.

This article takes three approaches in considering the Justice’s argument. First, recognizing that Justice Scalia prides himself on being a 'textualist,' it considers the Establishment Clause’s text ('Congress shall make no law respecting an establishment of religion'). Next, because Justice Scalia, in McCreary, used specific historical events to support his thesis, those events are analyzed to see if they were selected in a fair manner, and if they really stand for the proposition he claims.

Finally, in Part III, Justice Scalia’s brand of analysis is applied to his own Catholicism. It is shown that the United States of America was born of a literal hatred for Catholics, which was pervasive and persistent. One may well conclude, therefore, that under his approach, the Establishment Clause permits the disregard of his own religion.

2) Adam Schwartzbaum (University of Pennsylvania Law School), Comment -The Niqab in the Courtroom: Protecting Free Exercise in a Post-Smith World, forthcoming in U. Pa. L. Rev. (2010). The abstract states:

The niqab has become enmeshed in heated political controversy all across the world. In the United States, the situation of Ginnah Muhammad exemplifies the complex legal issues arising from conflicts between individuals whose religious beliefs compel this practice and the secular state. Muhammad, an African-American Muslim woman, was ejected from a Michigan small claims court for refusing to remove her veil while testifying. This Comment explores the constitutionality of this action, and a subsequent amendment to the Michigan Rules of Evidence passed in response to her case giving judges the power to “exercise reasonable control over parties and witnesses." Inevitably, neutral, generally applicable laws will sometimes conflict with individuals’ religious practices. In Employment Division v. Smith, the Supreme Court concluded that in most of these situations, the secular goals of the state override the religious objections of the individual so long as the government can advance a rational basis for its legislation. However, Smith itself acknowledges that in certain limited circumstances, even neutral, generally applicable laws are subject to strict scrutiny. This Comment explores the idea that a ban on the niqab in the courtroom is one such case. It analyzes the division amongst the Courts of Appeals regarding the “hybrid-situation,” and argues that Muhammad’s case exemplifies precisely how the doctrine should work in practice, because such a rule violates a Muslim woman’s Free Exercise rights and her corresponding right of access to the courts. It then reviews the interests advanced by the state as compelling reasons for the ban, and presents legal and empirical evidence suggesting that these are not sufficiently compelling and narrowly tailored enough to overcome strict scrutiny. By showing why even individuals at the outer edges of the law still have a strong claim for a religious exemption, this Comment attempts to make jurisprudential space for the vast majority of religious adherents to enjoy fair and equal treatment within the halls of American justice.

3) Lorenz Langer (Yale Law School), Panacea or Pathetic Fallacy? The Swiss Ban on Minarets, 43 Vand. J. Transnat’l L.--- (2010). The abstract states:

On November 29, 2009, Swiss voters adopted a ballot initiative introducing a constitutional ban on the construction of minarets. The supporters of the initiative had argued that minarets were not a religious symbol, but a token of power and conquest: banning them would halt the creeping Islamisation of Switzerland. The ban’s opponents had warned that the ballot initiative violated national and international provisions on non-discrimination and the free exercise of religion.

This article provides a thick description of the context in which the minaret vote took place. First, a legal analysis addresses the implications of the ban under national, regional and international normative frameworks. It is argued that the ban is irreconcilable with the constitutional bill of rights and several international human right provisions. However, in contrast to state ballots in the United States, there is no judicial review of initiatives in Switzerland; respect for the vox populi trumps any concern over conflicting international obligations. A historical analysis will help to explain how, through its excessive emphasis on popular sovereignty, the peculiar myth-system underlying modern-time Switzerland has facilitated the banning of minarets.

Mosques and minarets, however, also cause controversies elsewhere. The fears that fueled the prohibition of minarets in Switzerland are widespread in Europe. I set out how hostility to Islam is partly rooted in historical traditions, partly due to disagreement over how to integrate newcomers into Western society, and I suggest an approach that carefully balances expectations of Muslim adaption with a less exclusive construction of European identity.

4) Lorenzo Zucca (King's College London School of Law), Religious Conflicts and Toleration in Today's Europe , forthcoming in A SECULAR EUROPE- LAW AND RELIGION IN THE EUROPEAN CONSTITUTIONAL LANDSCAPE, Oxford University Press. The abstract states:

In this paper I sharply distinguish between tolerance and toleration as competing attitudes towards religious diversity. I stipulate a definition of tolerance as a non-moralizing attitude, which should be kept apart from moralizing toleration (involving a great deal of moral judgement) and should be understood as the human disposition to put up with diversity. Tolerance thus defined is the basis for an alternative approach to cope with religious conflicts. Such an approach is less dependent on normative assumptions and more responsive to empirical data, including psychological insights as to the human ability to deal with difference. In the paper, I explain the distinction between tolerance and toleration. Then I show the limits of liberal theories based on toleration as a moralizing attitude, which I suggest is as much a problem as it is a solution to religious conflicts. I argue instead that we should rely on and nurture the natural disposition of every individual to cope with difference as the best basis for a theory on how to cope with religious conflicts.

5) Samuel J. Levine (Pepperdine University School of Law), Goldman v. Weinberger: Religious Freedom Confronts Military Uniformity , published in LAW AND RELIGION: CASES IN CONTEXT: LEADING LAW AND RELIGION SCHOLARS EXPLORE THE ISSUES THAT CONFOUND COURTS, Leslie C. Griffin ed., 2010. The abstract states:

In 1986, the United States Supreme Court handed down a 5-4 decision ruling that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion. The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. Yet, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the case, which differs in significant respects from the official version of both the facts of the dispute and the ensuing litigation. The official narrative characterizes the facts as simply presenting a dispute between a Jewish soldier wanting to wear his yarmulke during work and a commanding officer demanding strict adherence to the military uniform protocol. However, the unofficial narrative demonstrates how much of the story was the result of personal factors, such as personal animosity between parties and passionate opinions from judges, that seemed to drive each stage of the legal process.

6) David W. Opderbeck (Seton Hall University - School of Law), A Critical Realist Theology of Law, Neurobiology, and the Soul . The abstract states:

This Chapter summarizes the challenges neurobiology presents to Christian theories of positive law. It begins by summarizing the Christian tradition's tight linkage between theological anthropology and theories of positive law. It next discusses the contemporary Christian theological engagement with neurobiology, which is surprisingly diverse. The discussion then turns to points of convergence and divergence between Christian and neurobiological accounts of law and personhood. It concludes with an outline of a methodological proposal for constructive engagement between Christian theories of law and the neurosicences.

7) Francois-Xavier de Vaujany (Université Paris-Dauphine), A New Perspective on the Genealogy of Collective Action Through the History of Religious Organizations, 5 Management & Organizational History  65 (2010). The abstract states:

This article puts forwards a 'reorientationist' perspective about the genealogy of collective action and artifacts deployed for its orientation. It draws on the history of religion and religious organizations as elaborated by several promoters of the so-called 'new history' in France.These historians (mainly medievalist) can be helpful in writing a different genealogy of contemporary models of collective action (i.e. ways of reaching a goal together) and their institutional context in western countries.They can also facilitate a critical understanding of long-range organizational dynamics.

8) Steven Menashi (Georgetown University Law Center), Toward a ‘More Enlightened and Tolerant View’: Educational Choice and the Regulation of Religious Institutions, forthcoming in NYU Annual Survey of American Law. The abstract states:

Since the Supreme Court upheld the inclusion of religious schools in publicly funded school choice programs, the question of the extent to which states may regulate the schools that participate in such programs remains unsettled. The question is important because state regulation may implicate issues of religious belief and practice that have traditionally been outside state control. Indeed, many legal scholars have endorsed such regulation in order to bring religious institutions into line with majoritarian norms. This Article argues that those activists and legal scholars who advocate public regulation of religious schools through school choice programs ignore the serious constitutional obstacles to such regulation. Even the modest regulations that already apply to religious schools in the nation’s two choice programs that include such schools lack a compelling justification that outweighs the infringement of First Amendment rights. The First Amendment establishes a right of religious institutions to remain free of government oversight and prohibits the government from involving itself in ecclesiastical questions reserved to religious institutions. Even if a religious institution consents to government oversight, an “excessive entanglement” will nevertheless render such oversight unconstitutional. Moreover, if a regulation, had it been imposed directly, would violate the school’s rights under the First Amendment, it would represent an unconstitutional condition when pressed indirectly. Because a school choice program that aims to promote educational pluralism resembles a limited public forum, the state may not discriminate on the basis of viewpoint by imposing regulations that exclude certain types of religious belief and practice. Ultimately, while the government need not empower parents to choose educational alternatives with vouchers, if a state does establish such a program it may not police those alternatives in ways that implicate religious expression.

9) Dr. Fakhrul Islam, Religious Seminaries in Pakistan. The abstract states:  

The religious seminaries (Madaris)1 of Pakistan have been a hot topic of discussion in the national and international media. These Madaris are reminiscent of the ancient education system of Islam. They attracted people’s attention during the last two decades and especially after the 11th September 2001 incident of New York. Another aspect of interest was their role in the Islamic insurgence (Jihad) waged in various parts of the world particularly in Afghanistan and Kashmir. These institutions impart orthodox education based on centuries old syllabus called Dars-i-Nizami. The administrators are disinclined to any slight change in the contents of the syllabus thus bringing them to an open conflict with the modern education system and western culture. The Madaris have been divided on the basis of religious sects i.e. Shia, Sunni and Ahl-i-Hadith. Of them Sunnis are further splintered into many sub-sects such as Deobandis, Brelvis, etc. But their adherence to the primitive education, Jihad and abhorrence for the western civilization is almost the same.

Despite repeated reference to these Madaris, there are many misconceptions or disinformation about them. In the present paper, an attempt has been made to remove these misconceptions and present a true picture. Besides, historical perspective, vital statistics, curricula and problems and prospects have discussed in the paper in hand.

JFB