First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:
 
1. Rony Guldmann (James C. Gaither Fellow, Stanford Law School), Beyond the Jurisprudence of American Exceptionalism on the Impossibility of the Establishment Clause. The abstract states:

It is a well known lament of conservatives that the intellectual classes have, through the courts alongside other means, instituted a regime, perhaps a religion, of secularism or secular humanism, the advancement of which is predicated upon the disparagement of traditional religion and its devotees. While some liberals would agree that the courts have at times been insufficiently sensitive to the nature and needs of religion, the liberal instinct is to dismiss as extravagant these more robust claims to the effect that the public schools have been infiltrated by an evangelizing, quasi-conspiratorial secular humanism, or that the Establishment Clause has become a tool of oppression operating surreptitiously in the service of this and other plots.

To these claims, secular liberals respond that, assuming some sense can be given to the notion of a secular religiosity, this is a label best reserved for countries like Turkey or France, which have sometimes directly suppressed certain forms of religious self-expression, like the wearing of headscarves. But since such policies and the attitudes underlying them would never be tolerated in the United States, warnings about the encroachment of an ideological secularism are dismissed as merely another iteration of conservatism’s politically expedient false populism.

But these dismissals are, I argue, facile. For doctrinal disagreements about what qualifies as genuine religious neutrality – as opposed to, say, “hostility toward religion” or a “religion of secularism” – are necessarily a function of a broader set of philosophical and historical disagreements concerning whether secularity is best conceived as the bare elimination of religion – what Charles Taylor calls “subtraction stories” – or instead as the outgrowth of – as the secularization of – particular religious traditions, which, though having become secularized, retain an underlying religiosity. Conservative grievances about the surreptitious encroachment of “secular humanism” or a “religion of secularism” become more intelligible when interpreted against the backdrop of this second theory of secularity, which casts the case law in a different light than does the first.

2. Alexander Tsesis (Loyola University Chicago School of Law), Preserving Tolerance While Remaining True to the First Amendment. The abstract states:

In the face of mounting campus anti-Semitic incidents in the U.S., college and university administrators are left with the quandary of how to prevent anti-social behavior without running afoul of the First Amendment protections of free speech. The Supreme Court’s recent decision in Virginia v. Black, opens a door to resolving that dilemma. Free speech has never been considered an absolute right, with multiple laws from copyright, to defamation, and trademark laws providing examples of permissible limitations on expression. Likewise fighting words can be prohibited both at universities and other public places.

3, Martin R. West and Ludger Woessmann  (Brown University and Ifo Institute for Economic Research), ‘Every Catholic Child in a Catholic School’: Historical Resistance to State Schooling, Contemporary Private Competition and Student Achievement Across Countries , published in The Economic Journal, Vol. 120, Issue 546, pp. F229-F255 ( August 2010). The abstract states:

Nineteenth-century Catholic doctrine strongly opposed state schooling. We show that countries with larger shares of Catholics in 1900 (but without a Catholic state religion) tend to have larger shares of privately operated schools even today. We use this historical pattern as a natural experiment to estimate the causal effect of contemporary private competition on student achievement in cross-country student-level analyses. Our results show that larger shares of privately operated schools lead to better student achievement in mathematics, science and reading, and to lower total education spending, even after controlling for current Catholic shares.

4. Siobhan Mullally, Civic Integration, Migrant Women and the Veil: At the Limits of Rights?, forthcoming in Modern Law Review.The abstract states:

Recent years have witnessed a spate of litigation and debate on the wearing of the veil by Muslim women and girls in Europe. Reflecting broader geo-politics, Muslim women have been placed at the center of the human rights versus Islamic world dialectic. Controversies surrounding the wearing of the veil have coincided in Europe with a retreat from the politics of multiculturalism, the language of multicultural accommodation being replaced by policy agendas that are more likely to appeal to the values of social cohesion and civic integration. The preoccupation with integration of migrant communities is reflected in the resurgence of interest in ‘pathways to citizenship’ and integration testing, both at EU level and in Member States. In recent years, this preoccupation has been marked by a willingness to deploy juridical and punitive tools of immigration control to monitor mandatory integration requirements. Newly expanded forms of integration testing seek to assess the newcomer’s commitment to liberal democratic ideals, including gender equality. This ‘gender turn’ in immigration and citizenship practice marks a challenging departure and raises questions as to what are the costs of such inclusion. While directly discriminatory laws have disappeared in Europe, the categories of gender, sexuality and ‘race’, continue to be pivotal to immigration and citizenship practices today.

The historical vestiges of discrimination in immigration laws persist in the ‘anxious scrutiny’ to which the cultural affiliations and practices of aspiring citizens are subjected. Muslim women have been placed at the center of such scrutiny, increasingly defined by the arbiters of belonging and membership as ‘les anormeaux’. This paper examines recent legislative proposals on the wearing of the veil in France and examines these proposals in the light of the expansion of integration conditions for immigrants and aspiring citizens in France and elsewhere in Europe. The gender dimension of integration conditions, and restrictions on religious forms of dress, are examined in the light of human rights law's normative commitments to cosmopolitanism and to just multicultural arrangements.

5. Jesse H. Alderman, Police Privacy in the iPhone Era? The Need for Safeguards in State Wiretapping Statutes to Preserve the Civilian's Right to Record Public Police Activity, forthcoming in First Amendment Law Review. The abstract states:

The advent of iPhones, Blackberries, and other ubiquitous cellular devices instantly capable of capturing audio and video recordings has led to increased publicity of police misconduct, and a rise in the admission of evidence, inculpatory and exculpatory, gathered by “citizen journalists,” ordinary bystanders, or victims themselves. The probative value of such “iPhone evidence” and its public utility in exposing police abuses cannot be understated. However, a handful of states have criminalized the mere gathering of such videos under state wiretapping statutes that prohibit a broad range of nonconsensual recording, even of police officers in their public capacities. This Paper argues that the right of citizens to openly or surreptitiously record police officers performing their public duties, without fear of punitive and retaliatory prosecution, must be expressly safeguarded in state wiretapping statutes. This protection is rooted in background principles of the Fourth Amendment, which militate against conferral of privacy rights for public police actions; the First Amendment, which protects the right of the public to receive information and concomitantly the right to record police; and other salient public policy considerations. A Table of State Authorities, summarizing the relevant characteristics of all state wiretapping laws, and the federal counterpart, is also provided.

6. Asim Jusic (Center for EU Enlargement Studies - Central European University, Budapest), Legal Regulation of Non-Mainstream Religious Groups: Perspectives from Economics and Social Psychology,  The abstract states:

In this paper, I construct a preliminary theory which posits the behavior of religious groups as a fulfillment of three basic aims. First, the provision of group identity ‚bundled‘ with shared emotions, beliefs and behavioral patterns; second, activities that are meant to sustain mutual cooperation and advance the internal and external credibility of group held religious beliefs, identity and behavioral patterns; and finally, "boundary keeping activities", meaning activities related to the preservation of intra-group solidarity and group existence in the face of external or internal pressures.

Additionally, I theorize that law is a tool of social control and regulation and describe the rise of legal institutions as mechanisms to solve the problems of uncertainty. Institutions are built against a particular social background of values, customs, religion and informal rules, and they are charged with making binary decisions on what is legal or illegal. In so doing, legal institutions are subject to influence of social norms which have a psychological impact on legal decision makers (legislators, jurors and judges).  In turn, institutions and legal decisions influence social norms themselves.  The major claim of this work is that the contemporary systems for regulating religious groups judge all "non-mainstream" religious groups by assessing them according to their relative status in the social strata of a given society. The judgment on the status of a given religious group is based on its potential for "disloyalty" to the state and the perceived social distance of a given group from what is legally constructed as the "mainstream". The 'status judgment' is based of the three major functions of religious groups posited in the theory of religious groups I construct. It is assumed, hence, that the legal evaluation of "disloyalty" potential and social distance is constructed and structured around the decision-makers perception of group cooperation, credibility-enhancing and boundary sustaining mechanisms of a given religious group under scrutiny. These asssesment serves as proxies for assessing the (un)acceptability of emotions, beliefs and identities that precede them, leading to positive or (more frequently) negative legal decision. This theory is than illustrated with two case studies. First, the legal position of non-mainstream religions in Germany, and a discussion of the Jehovah‘s Witnesses trial and a headscarf and crucifixes in schools controversy. Second, the Hungarian reenactment of institutional privileges for “historically accepted churches” following the fall of Communism in 1989 and the discussion on failed Jewish organizations’ demand for public recognition of Jewish holidays in Hungary.

In the conclusion, I discuss case studies in light of theory, and also explore problematic aspects of the theory in light of cases. I touch on potential for future research in this area, and point to several problematic aspects of the contemporary legal regulation of non-mainstream religious groups. The following identical issues occur as problematic in the case studies analyzed in the paper, as well as in other Western jurisdictions (i.e. the US or France). First, the "procrustean bed" problem: the attempt of legal systems to push various religious groups into organizational forms that fit only certain versions of organized Christianity. Second, the socially constructed and structured nature of legal argumentation in court cases involving religion, which increasingly looks odd (to say at least) and is further and further removed from contemporary developments and changes in everyday social life. This is another way of saying that the background conditions against which previous cases and precedents were decided are no longer present, and hence a pragmatic need (if not a growing necessity) to reassess the legal treatment of religious groups generally and non-mainstream ones particularly in light of new circumstances.

7. Lisa Shaw Roy (University of Mississippi School of Law), Pleasant Grove City v. Summum: Monuments, Messages, and the Next Establishment Clause , Northwestern University Law Review Colloquy, Vol. 104, p. 280, February 2010. The abstract states:

The U.S. Supreme Court's decision in Pleasant Grove City v. Summum may indicate a change in the direction of the Supreme Court's Establishment Clause jurisprudence. Although the Court decided Summum on the basis of the government speech doctrine, Justice Alito's opinion for the Court contains an extended discussion of monuments and messages that is directly at odds with some of the Court's Establishment Clause cases applying the endorsement test. Particularly in light of the fact that Summum was decided while the Court was considering Salazar v. Buono, another case involving a religious monument, it is possible that Summum suggests a move away from the endorsement test in the context of religious symbols and displays.

8. Phyllis Ghim-Lian Chew (Nanyang Technological University (NTU) - National Institute of Education) , An Ethnographic Survey of Language Use, Attitudes and Beliefs of Singaporean Daoist Youths . The abstract states:

This paper focuses on the active Daoist youths (ages 15 to 30) of Singapore as youths are the parents, decision-makers, business people and leaders of tomorrow. Their behavior, attitudes and beliefs affect the political, economic and social future of a nation. During this phase, religion or more generally, religiosity has begun to play a large part upon how these young adults view the world. Important questions of identity and meaning are formed during this period. However, research on religious development in youth is a much neglected area, as can be observed by the lack of research and surveys available. The study takes an interdisciplinary approach by incorporating the contributions of linguistics, political economy, history and sociology so as to provide a wider and more balanced analysis. Data was collected from interviews and questionnaires on 19 active Daoist youths, participant observation and focus-group discussion. Questions of interest in this study include: What, for example, is the basis of choice of a speaker’s religious ideology? How does a youth define Daoism? Who are the Daoist youths in Singapore? How do they define Daoism? What are their social cultural backgrounds? What are their aspirations? How much does a youth know about Daoism? What are their language(s) of communication? Of special interest is the study of the rise of world languages such as English and Mandarin at the expense of Chinese dialects.

9. Erni Budiwanti, Pluralism Collapses: A Study of the Jama’Ah Ahmadiyah Indonesia and its Persecution. The abstract states:

The long and uneasy relationship between Ahmadiyah and mainstream Muslims took a turn during the period between 1980 and 2005 when the MUI (Indonesian Ulama Council) issued edicts (fatwa) on the heresy of Ahmadiyah. After these consecutive edicts were publicly declared, the Ahmadis became the major target of persecution, and violent attacks. In Lombok in particular Ahamadi followers were forced to leave their destroyed houses, mosques and schools to live as refugees in a public shelter. This paper is a study of the Ahmadiyah sect and the basis of its beliefs. It also traces the origin and development of the sect in Indonesia and the subsequent debates and controversy which led to the religious group being “de-legitimized” by the state. This paper argues that government interference in the definition of officially acceptable religion has heightened religious violence. The research also reveals how government treats Ahmadiyah refugees who for so long have become the victims or the silent majority of this conflict.

10. Martin Hintz , Understanding the Context is Understanding the Impact: Evidence from a Qualitative Microinsurance Impact Survey in Indonesia , published in MICROINSURANCE - AN INNOVATIVE TOOL FOR RISK AND DISASTER MANAGEMENT, E. Morelli, G.A. Onnis, W.J. Ammann, C. Sutter, eds., Global Risk Forum, Davos 2010. The abstract states:

This paper presents the findings from a qualitative-explorative longitudinal impact assessment of an enhanced credit life microinsurance pilot in Indonesia. Different from the practical or econometric-quantitative approaches of the few microinsurance impact assessments available today, the approach applied here is sociological. Emphasis is put on contextualization. A variety of research components were executed: a baseline/endline survey of customers, interviews with 24 Muslim beneficiaries and additional research with loan officers, credit group leaders, experts, and MFI managers. Despite a number of methodological constraints which preempt absolute data accuracy, the breadth of available data nonetheless allows for indicative conclusions. This impact assessment identifies microinsurance as an agent of social change and highlights the complex interplay of the actual product with its respective sociocultural context in producing impact. It turns out that the social impact of the surveyed product which waives the loan balance and provides substantial additional payouts upon death of a micro-borrower, was literally \micro". For reasons of religion and tradition, most additional payouts were used for social investments. Payouts appear to substitute some of the traditional, informal, post-mortem family assistance (crowding out). To some extent, the insurance payouts also seem to have contributed to an inflation of funeral costs. Dependence on informal assistance was reduced leading to a potential erosion of equality-focused social cohesion. Positive impacts were found in the form of an increase in financial literacy. Also peace of mind of the insured increased. However, some of those insured felt less secure for reasons of religion and superstition. Customer satisfaction was nonetheless high. The insured voiced a strong demand for more urgent risk management challenges such as education and health costs.

11. Maznah Mohamad, Islam and Family Legal Contests in Malaysia: Hegemonizing Ethnic Over Gender and Civil Rights. The abstract states:

The family narrative is a rich site where feminist, ethnic and nationalist politics can be projected and advocated. In the Malaysian case, the discourse of feminism, cultural relativism and liberalism, vis-à-vis family litigation has been used to assert and bargain for specific political interests. The politicization of litigation involving Muslim-non-Muslim family cases has proved to be an effective means of drawing attention to the transformational potential of law in society. On the surface the unfolding of these events, especially when posed as a human rights concern can be reduced to a struggle between the Islamists and the secularists. However, there is a more complex process at work involving multiple contestations around middle-class competition, leadership struggles, and legitimacy of rule, rather than just an assertion of ideologies (particularly religious ideologies). What I will show in this paper is that the family as an economic and social unit, and even as metaphor, has become a terrain where acute power struggles can take place. By looking at the background and outcomes of several landmark inter-religious court cases in Malaysia the paper analyzes the wider socio-political implication of these contestations, especially how the representation of the family and its fragmentation has situated it within a critical interstitial domain lodged between the struggle for group affinity on the one hand and nation-state membership on the other. That this battle of wills is fought at the expense of families largely escapes the attention of those who are in this competition. It would seem that one of the costs of asserting or re-defining the rules of nation and belonging had been the undermining of the sacredness of family and the autonomy of private choice.

12. Gaurav Garwa (NALSAR, University of Law), Jurisprudential Analysis of Right to Life of Fetus.The abstract states:

The debate over abortion, the right to privacy and the right to life has been in the public eye since the decisions of the United States Supreme Court in Roe v. Wade and Doe v. Bolton. In Roe v. Wade the court held that there is no religious, scientific or moral consensus about when the life begins and the right to privacy encompasses personal decision such as whether to proceed with or terminate a pregnancy. Till date there is a huge debate over status of fetus and its right to life. This paper tries to analyze the status of fetus and whether it can be accrued right to life just like human beings.

13. Cem Baslevent and Hasan Kirmanoglu (Istanbul Bilgi University - Department of Economics and Istanbul Bilgi University - Department of Economics),Discerning Self-Interested Behavior in Attitudes Towards Welfare State Responsibilities Across Europe, forthcoming in International Journal of Social Welfare. The abstract states:

This article reports on an investigation into the influence of individual characteristics on attitudes to government responsibility for welfare-related tasks that used data from the European Social Survey (ESS). The main finding of this investigation was that socio-demographic characteristics, basic personal values, left-right ideological positions, and religious affiliation were all associated with attitudes towards welfare policies. An item-by-item examination of the six issues inquired about in the survey revealed that people tended to hold the government responsible for tasks that would benefit them more directly. Taken as a whole, the empirical findings were interpreted to mean that individuals’ tastes for welfare state policies were driven, at least partially, by self-interest, but it was also noted that further work was needed to disentangle the potential role of group loyalty effects.

14. Heinz Scheifinger, Conceptualising Hinduism.The abstract states:

The term ‘Hinduism’ is used in both popular and academic works. However, because Hinduism defies definition, exactly what authors are referring to is often left unclear. Despite this, I argue that the adoption of an approach which, crucially, does not seek to define Hinduism demonstrates that the term has utility and should be retained. Following this, I briefly consider Jean Baudrillard’s interesting views concerning religious images in the light of Hinduism – a worthwhile undertaking since the image is of paramount importance within Hinduism. I argue that applying Baudrillard’s ideas to Hindu religious images is highly problematic and then provide a further example which demonstrates that important characteristics of Hinduism may not necessarily fit comfortably with Baudrillardian ideas. Finally, I reflect upon the nature of online images of Hindu deities because certain characteristics of the medium of the Internet invite us to consider Baudrillard’s ideas further.

15. Ramkrishna Mukherjee (Humboldt University of Berlin), Formation and Fragmentation of Nation-States: Partition of India - An Example , The IUP Journal of History and Culture, Vol. IV, No. 3, pp. 7-16, July 2010 The abstract states:

The paper demolishes the lingering viewpoint that partition of Indian subcontinent was caused by religious animosity between the Muslims and the Hindus, and substantiates that unequal exchange of material and mental amenities among the people belonging to sensitive social groups leads to the formation and fragmentation of nation-states along the march of the process-structure - process syndrome in extant society.

16. Fredrick Oduol Oduor (Deakin University- Master of Laws Candidate) , The Evolution of Internet Defamation Law: Will Dow Jones v. Gutnick Survive the International Legal Schisms and Legislative Onslaught?. The abstract states:

The internet is currently the most versatile medium of communication. It remains true to its heritage having been designed by the US military to withstand a nuclear attack. At conception it was designed to route around censorship and controls. It however, now functions in the civilian world in which laws and regulation are the norm. The Australian High Court attempted to put in place regulations and principles on on-line Defamation in Dow Jones v Gutnick (Gutnick). However the borderless nature of the internet has brought to the fore, the complexities involved in developing internet legal principles. This is in a world still fraught with inherently different legal systems, with one foot placed on globalisation and the other clinging on to sovereignty. A clash between free speech and reputation was the result of Gutnick and a renewed offensive is in the offing. The pertinent question explored in this discourse is whether the defamation principles reiterated and established by the High Court of Australia in Gutnick will survive.

JFB