First Amendment Scholarship Update

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

1. William Blake (University of Texas at Austin), Pyrrhic Victories: How Government Secularization of Sacred Symbols Undermines the Sanctity of Religion. The abstract states:

Over the past 25 years, federal courts have sanctioned displays of religious symbols on public property – including the crèche, the Ten Commandments, and the Latin cross – by privileging their secular value or because nearby secular symbols wash away their religiosity. This paper contends that these cases have resulted in government secularization of the religious. Though the appearance of religion has increased in the Public Square, this effort has been partially self-defeating because the distinctive substance of religion has been eroded by this jurisprudence, thereby weakening the sanctity of religion. Minimizing the religious import of these symbols makes dialogue over the proper reach of the Establishment Clause effectively impossible.

2. Jennifer Hochschild (Harvard University) and Charles Lang. Including Oneself and Including Others: Who Belongs in My Country?. The abstract states:

To be a first class member of a country, must one have citizenship, the same ethnic or racial background, or the same religion, as most citizens? How does high status relate to beliefs about inclusion? We analyze the 2003 ISSP survey on national identity, focusing on ten wealthy, democratic countries. We find a series of mismatches: a strong sense of being included is often coupled with a desire to exclude others. Countries with extreme public views are not always the countries with political controversy over inclusion. Views of citizens or members of the mainstream religion or race often differ from views of outsiders. Countries often cluster in ways that violate standard assumptions about geographic, cultural, or political affinities. Enjoying high status does not guarantee feeling included or seeking to include others. Given these mismatches, it is no surprise that politics and policies around inclusion are contentious, unstable, and fascinating.

3. Ronen Bar-El , Teresa García-Muñoz (University of Granada - Campus La Cartuja), Shoshana Neuman (Bar Ilan University - Department of Economics) and Yossi Tobol (Bar Ilan University - Interdisciplinary Department of Social Studies), The Evolution of Secularization: Cultural Transmission, Religion and Fertility Theory, Simulations and Evidence. The abstract states:

This study presents an evolutionary process of secularization that integrates a theoretical model, simulations, and an empirical estimation that employs data from 32 countries (included in the International Social Survey Program: Religion II – ISSP, 1998). Following Bisin and Verdier (2000, 2001a), it is assumed that cultural/social norms are transmitted from one generation to the next one via two venues: (i) direct socialization – across generations, by parents; and (ii) oblique socialization – within generations, by the community and cultural environment. This paper focuses on the transmission of religious norms and in particular on the 'religious taste for children'. The theoretical framework describes the setting and the process leading to secularization of the population; the simulations give more insight into the process; and 'secularization regressions' estimate the effects of the various explanatory variables on secularization (that is measured by rare mass-attendance and by rare-prayer), lending support to corollaries derived from the theory and simulations. The main conclusions/findings are that (i) direct religious socialization efforts of one generation have a negative effect on secularization within the next generation; (ii) oblique socialization by the community has a parabolic effect on secularization; and (iii) the two types of socialization are complements in 'producing' religiosity of the next generation.

4. Pablo Cristóbal Jiménez Lobeira (Australian National University (ANU) - Centre for European Studies), Pre-political Foundations of the Democratic Constitutional State - Europe and the Habermas-Ratzinger Debate.The abstract states:

In 2004 Jürgen Habermas and Joseph Ratzinger participated on a debate on the ‘pre-political moral foundations of a free-state’. Their contributions showed broad agreement on the role of religion in today’s Western secular state and areas of collaboration and mutual enrichment between Modernity and Christianity in Europe and elsewhere. They diverged regarding the need or not of a common cultural background prior to the existence of the polity. Their diverging point becomes all the more fascinating to extent that the matter needs far more research (including empirical studies) to be settled. Nevertheless, the implications that derive from one or the other possibility are very different in normative terms and translate into different criteria for such policies as crucial as immigration and citizenship. This is already clear in Europe and is becoming more evident in other Western democracies.

5.  Keren Weinshall Margel (Hebrew University), Supreme Court Decision-Making: An Empirical and Comparative Perspective from Israel. The abstract states:

This study examines decision-making in Israel’s Supreme Court regarding freedom of religion, while implementing models of decision-making that were researched in other high courts, mainly the US Supreme Court and the Supreme Court of Canada. Two theoretical models were studied: the attitudinal model, according to which justices decide disputes consistent with their ideological positions; and the neo-institutional approach, according to which the roles and norms of the court as an institution affect the justices’ decisions. Conclusions indicate that justices' attitudes in Israel have a very strong influence on their votes on the merit. At the same time, the neo-institutional claim that the law does matter is also supported by the findings. The results of the study, as compared to former studies conducted in other countries, can help to better understand the influence of institutional arrangements on decision-making in high courts.

6. Shahar Lifshitz (Bar-Ilan University - Faculty of Law),  A Potential Lesson from the Israeli Experience for the American Same-Sex Marriage Debate. The abstract states:

In the past decade American marriage law has been the arena for a major controversy regarding same-sex marriage. Typically, liberals tend to support same-sex marriage, while conservatives oppose it. The liberal-conservative dispute concerning Same Sex Marriage is usually related to a broader debate on the legitimacy of limiting the possibilities for marrying: liberals present marriage as a private arrangement between the partners, and they therefore oppose restricting the right to marry The opponents of single-sex marriage, in contrast, legitimize legal limits to the right to be married by presenting marriage as a public institution.

Based on the unique experience amassed in Israel on this question, I seek to reveal the potential consequences of the struggle between liberals and conservatives regarding limitations of the right to marriage for an additional liberal-conservative confrontation concerning the uniqueness of legal marriages, and the difference between them and alternative family types.

The conservative position limiting entry to marriage won a decisive victory in Israel. Accordingly, partners of the same sex, like partners from different religious communities, are not allowed to formally marry. Generally speaking, the right to marry is subject to a broad range of civil and religious restrictions. Ironically, the strict limitations on the right to marry were a trigger for the development of the institution of cohabitation as a substitute for formal marriage. Accordingly, the array of the rights and obligations of cohabitants is approaching that of married partners, and at times even exceeds the latter. I will argue for the existence of a similar dynamic in the United States, where the distress of same-sex partners serves as the basis for notions and proposals, both in the academic realm and in the more general public realm, for strengthening the institution of cohabitation, the weakening of the institution of marriage, and at times even the abrogation of marriage as a legal institution.

On the background of this developing dynamic, and taking into account the aggregate Israeli experience, I will advance three arguments:

First, I will present a conservative critique of the conservative position against same-sex partners. I will argue that, in the final analysis, the conservative camp's relative success in negating the possibility of same-sex marriages harms this camp's broader agenda for the preference of legal marriages.

Second, I will present a liberal critique of the liberal camp. My proposition is that, despite the essentially liberal motivation for weakening legal marriages in order to decrease the gap between them and cohabitation, in many instances this activity harms the liberal values of freedom of choice and autonomy in the name of which they act.

Finally, I will argue on behalf of democratic compromises such as civil union in the United States and spousal registry in Israel.

7 . Adrienne Stone (University of Melbourne - Law School),The Comparative Constitutional Law of Freedom of Expression. The abstract states:

Freedom of expression is among the most widely protected of constitutional rights. This chapter, written for a Research Handbook on Comparative Constitutional Law canvasses freedom of expression in a wide range of modern democracy. It chapter focuses, first, on the conceptual structure of rights of freedom of expression and, second, upon substantive conceptions of ‘freedom of expression’.

JFB