First Amendment Scholarship Update

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

1. Winnifred Fallers Sullivan (University at Buffalo Law School, SUNY), Joan’s Two Bodies: A Study in Political Anthropology, forthcoming in Social Research. The abstract states:

From all of the evidence, Joan of Arc was a conventionally pious Catholic and a patriotic Frenchman. Yet she was tried as a heretic and executed as a traitor. She unnerved both her friends and her enemies in the church and the state with her zeal. And she continues to fascinate. Almost six centuries after she was burned at the stake, her body still has life. This essay uses Kantorowicz’s reading of the historical development of the legal fiction of the king’s two bodies to re-focus our attention on what Joan of Arc accomplished as a political actor.

2. Kenneth L. Marcus (Institute for Jewish & Community Research),The New OCR Antisemitism Policy, 2
Journal for the Study of Antisemitism --- (2011). The abstract states:

The U.S. Department of Education's Office for Civil Rights (OCR) issued important policy guidance on bullying and harassment in October 2010. Although easily overlooked within this policy document, OCR's new guidance includes an important statement regarding OCR's position on anti-Semitism within federally funded educational programs and activities. In a nutshell, OCR has reinstated its long-disregarded 2004 policy, which had established that OCR would prosecute cases of harassment that are based on ethnic or ancestral discrimination, even though OCR lacks jurisdiction to address cases of purely religious discrimination. This conference paper, delivered at the inaugural symposium of the Journal for the Study of Antisemitism, argues that the Obama administration's October 2010 OCR anti-Semitism policy is a bold and important advance but that its success or failure in practice will depend on three questions: First, can OCR properly define anti-Semitism in practice, distinguishing it where appropriate from non-discriminatory criticism of the State of Israel? Second, can OCR properly respect the boundaries between harassment law and the Speech Clause of the First Amendment? Third, will Congress close the remaining loophole which permits discrimination against ethno-religious minorities if it is based exclusively on religion but not if it is based in part on ethnicity?

3. Jessica Knouse (University of Toledo - College of Law), Civil Marriage: Threat to Democracy, forthcoming in Michigan Journal of Gender & Law, 2012. The abstract states:

This article argues that civil marriage and democracy are inherently incompatible, whether they are assessed from a trans-cultural perspective that reduces them to their most universal aspects, or from a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than self-determining based on their own preferences; they effectively deprive their citizens of equality by establishing an insidious status hierarchy. While some deprivations of liberty and equality are justified – for example, those that promote social welfare – this article argues that those resulting from civil marriage are emphatically unjustified. The incompatibility that exists on a trans-cultural level is magnified when one considers civil marriage and democracy in their American elaborations. American civil marriage privileges not only sexual partners but also religious, patriarchal, and heterosexist ideologies, while American democracy presupposes respect for the Due Process, Equal Protection, Establishment, and Free Speech Clauses.

Even if American civil marriage could be stripped of its religious, patriarchal, and heterosexist aspects, it would remain an essentially undemocratic institution due to its inherent privileging of sexual partners. Inasmuch as American civil marriage cannot be democratized, this article argues that it should be abolished. It does not, however, propose (as some have) that American civil marriage be replaced by a relatively analogous “civil union” regime. It instead proposes that states remove themselves entirely from the business of affirming sexual partnerships. It explains that abolishing civil marriage would not only enhance American democracy, but also enable states to reallocate their resources away from sexual partners and toward individual providers. While sexual partners do not necessarily deserve government benefits, individuals who provide for dependents do – yet they are often denied such benefits under our current system. It should be emphasized that this article applies only to civil marriage, and does not propose to limit the ability of sexual partners to celebrate their commitments through private ceremonies or to dissolve their relationships according to the terms of private contracts.

4. Lorenzo Zucca (King's College London School of Law), Crucifix in the Classroom: The Grand Chamber decision in Lautsi, forthcoming in International Journal of Constitutional Law(2011). The abstract states:

This is a critical comment of the Crucifix in the Classroom case decided by the Grand Chamber of the European Court of Human Rights. The comment deals with three issues: the place of religious symbols in the public sphere, the meaning of secularism today, and the notion of respect owed to parental convictions in the educational context. Each one of these pose a big problem in relation to the place of religion in the European Constitutional landscape.

5. Joel A. Nichols (University of St. Thomas School of Law (MN)), Misunderstanding Marriage and Missing Religion, forthcoming in Michigan State Law Review. The abstract states:

This Essay is part of a Symposium that considered the virtues and vices of “E-marriage.” That idea, proposed by Professors Adam Candeub and Mae Kuykendall, seeks to “modernize marriage” by using a variation on older notions of proxy marriage, where a couple need not be physically present in order to be “married” in a state. In essence, the Symposium challenged the assumption of presence in a state dictating decision-making about who may marry and under what procedures (infused with an element, at times, of using electronic means to be “present” in another jurisdiction).

Candeub and Kuykendall’s article and, even more so, the Symposium are notable both for their assumption of state control and for their lack of discussion about religion. This Essay offers correctives to both matters. First, it is not possible to entertain a conversation about marriage without simultaneously having a discussion about its multi-faceted nature as pre-political, contractual, and covenantal. Marriage is not simply a creation of the state that can be altered at a whim, but a deeply personal matter imbued with community (and usually religious) overtones and involving the consent of two individuals.

Second, one must talk about religion when discussing marriage. Merely avoiding talking about religion and the important role it has played and continues to play will not advance the conversation about the nature of marriage. In fact, if one goal of the Candeub and Kuykendall proposal is to “lessen the impetus for protracted political, legal, and cultural struggles over same-sex marriage,” then omitting religion from the discussion will certainly consign the proposal to failure. It is likely, instead, that such a proposal will operate only as an accelerant in the ongoing social debate, for it will be viewed as a Trojan horse to promote same-sex marriage.

6. Iain T. Benson (University of the Free State - Faculty of Law, Department of Constitutional Law and Philosophy of Law), Unexamined Faiths and the Public Place of Religion: Emerging Insights from the Law . The abstract states:

The article examines certain key terms, such as “beliefs” and “faith” and how these are understood in relation to the public sphere. It examines some writings of recent popularist authors such as Richard Dawkins and Christopher Hitchens and is critical of the authors’ claims that they do not have faith or beliefs. Drawing on legal decisions in Canada and South Africa the article suggests that this sort of terminological looseness has legal and political implications when it comes to whether or not beliefs of all sorts (religious and non-religious) are treated fairly in the public sphere.

Arguing for a more diverse public sphere, the article cautions that law should give greater attention to principles of modus vivendi rather than “convergence” in which the attempt is to eradicate legally allowable positions from the public sphere and place those who hold them, and their communities, at a disadvantage. The law must not, by inflating its own role, put added pressures on the liberty that accommodation and subsidiarity require.

7. Tetty Havinga (Radboud University Nijmegen - Faculty of Law), Regulating Halal and Kosher Foods: Different Arrangements between State, Industry and Religious Actors , Erasmus Law Review, Vol. 3, No. 4, p. 241 (2010). The abstract states:

The Netherlands, like other Western countries, is a growing market for halal food products, that is, food products that comply with Islamic food laws. Halal food is becoming more visible as Dutch supermarkets, hospitals and schools decide to include halal food in their supply. This development has been criticised by animal protectionists and people who fear the ‘Islamisation’ of Dutch society. In this article, the regulation of halal food in the Netherlands is compared to the regulation of kosher food in the Netherlands and the United States. I will analyse the division of roles between state actors, the food industry, certification agencies and religious authorities in these regulatory arrangements. Contrary to expectation, the regulatory arrangements are rather state-centred in several US states (liberal market economy), whereas the Dutch corporatist welfare state plays a limited role by allowing religious slaughter and leaving the issue of halal and kosher certification entirely to commercial and religious organizations.

8. Michael Allsep (Air Command and Staff College),James E. Parco (Colorado College), and David A. Levy (US Air Force Academy, Dept of Management), E Pluribus Unum: Open Homosexuality and the Culture War within the US Armed Forces, Air and Space Power Journal, Vol. 5, No. 1, pp. 68-76( 2011). The abstract states:

On December 22, the Don't Ask, Don't Tell Repeal Act of 2010 was signed into law providing the the legal path to give equal protection to all service members regardless of sexual orientation. As was the case with race and gender, the further expansion of the military social aperture to accept homosexuals had the predominant impact of making the military more inclusive and giving equal social status to a previously disadvantaged class of citizens. Yet, there are reasons for concern in the United States. First, the integration of Blacks and women into the military was not accomplished without difficulty and remains unfinished today. While the military deserves credit for today‘s relatively healthy racial climate, the full integration of women remains a struggle. Second, the gap between the social and political values of the officer corps and those of the general population has widened to a disturbing extent, a fact aggravated by the belief that the military culture is not only separate but also superior. Finally, the extent to which this gap manifests itself in devoutly held religious beliefs that sometimes contradict emerging law and policy on sexual orientation presents a special problem because of faith‘s claim to the whole person. This essay addresses the possible impact of these challenges on a successful transition to a military that respects openly homosexual service members. (Downloadable document in Chinese.)

9. Brent R. Wilson, Is the Almighty Entitled to the Almighty Dollar of the Bankrupt? Free Exercise Issues in the Bankruptcy Code. The abstract states:

This paper will discuss the relationship between the Free Exercise Clause of the First Amendment and the Bankruptcy Code. There are several intersections of these seemingly distinct paths. This paper will address three of these crossroads as it pertains to what many religions find as a duty of its followers: tithing. Before addressing the bankruptcy issues, this paper will discuss the current application of the Free Exercise Clause and the application of Religious Freedom Restoration Act (“RFRA”). This paper will then introduce the areas in which the Bankruptcy Code and Free Exercise Clause intersect. In application of the Free Exercise Clause to the Bankruptcy Code, the first issue that will be addressed is fraudulent conveyance law both under the Bankruptcy Code and state law. Fraudulent transfer law, under state law and the Bankruptcy Code, allows creditors or trustees in bankruptcy to avoid any actual or constructive fraudulent transfer made by the debtor. Next, this paper will address the implications of a debtor’s Chapter 13 plan that requires the debtor to pay all of its “disposable income” to creditors and whether a debtor’s tithes should be excluded from this calculation. Finally, the issue of “charitable donations” allowed for in the means test will be addressed, and how these contributions may decrease the “current monthly income” of an individual allowing them access to Chapter 7 relief that would have been denied before these contributions were included in that calculation.

10. Melissa Crouch (University of Melbourne), Ahmadiyah in Indonesia: A History of Religious Tolerance Under Threat? , Alternative Law Journal, Vol. 36, No. 1, pp. 56-57(2011). The abstract states:

Indonesia is a multi-religious society with a long history of religious tolerance. Ahmadiyah, a minority religious community that identifies with Islam, has existed peacefully in Indonesia for over 80 years. The Ahmadiyah community in Indonesia, however, is increasingly under threat of attack by radical Islamic groups, and there are ongoing demands from conservative Islamic groups that the state implement further legal restrictions on Ahmadis. An analysis of the recent decision of the Constitutional Court on what is known as Indonesia’s ‘Blasphemy Law’ will show the ongoing risk of Ahmadis being convicted for blasphemy, in addition to threats and violent attacks from radical Muslims.

11. Barry McDonald (Pepperdine University - School of Law), The Emerging Oversimplifications of the Government Speech Doctrine: From Substantive Content to a 'Jurisprudence of Labels' , Brigham Young University Law Review( 2010). The abstract states: 

In the past couple of decades, the U.S. Supreme Court has created, and continues to develop the contours of, what it refers to as the "government speech" doctrine. In its current incarnation, this doctrine holds that whenever it can be said that the government is engaging in speech, then it is not subject to First Amendment limitations with respect to the impact its actions or message may have on private speakers associated with that speech. Under some iterations of this doctrine, the Court has sanctioned the imposition of normally prohibited viewpoint restrictions on private speakers who accept government funds or on government employees speaking on matters of public concern, the compulsion of private party funding for speech with which it disagrees, and the selective exclusion of speakers from traditional public fora based on the content of the speakers’ message. In other words, the government speech doctrine has become a First Amendment "escape hatch" for placing substantial restrictions or burdens on private speakers that would otherwise be subject to serious judicial scrutiny and constitutional doubt if traditional free speech principles were applied to these situations.

In this Article, Professor McDonald begins by tracing the development of the government speech doctrine, focusing primarily on the Supreme Court cases of Abood v. Detroit Board of Education, Keller v. State Bar of California, Rust v. Sullivan, Board of Regents v. Southworth, and Johanns v. Livestock Marketing Association. Through this discussion, Professor McDonald demonstrates that the government speech doctrine has become unhinged from its original purpose of assisting in the ordering of governmental and private speech interests in cases where they intersect and conflict. Instead, he argues, the current Court has transformed the doctrine from a tool of substantive analysis into what Justice Breyer has recently termed "a jurisprudence of labels." Based on this view, whenever the Court can label a message involving the interaction of both government and private speakers as primarily that of the government, it washes its hands of assessing the constitutionality of the burdens placed on the interests of the private speakers. Professor McDonald contends that this modern development is misguided and urges a return to a formulation and application of the government speech doctrine as it was originally conceived.

12. Jerome A. Barron (George Washington University - Law School),The Pentagon Papers Case and the Wikileaks Controversy: National Security and the First Amendment, Wake Forest Journal of Law and Policy, 2011. The abstract states:

This Essay focuses on two clashes between national security and the First Amendment - the Pentagon Papers case and the WikiLeaks controversy. The two cases are hardly exact parallels. In the Pentagon Papers case the government was seeking to enjoin publications, asking for the imposition of a prior restraint. In that context, the press received the benefit of the "heavy presumption" against prior restraints. In the WikiLeaks controversy, because the discussion centers on the possibility of a criminal prosecution against Julian Assange, there is no equivalent "heavy presumption" against such a prosecution. In each case, the actual leaker was arrested, but, in the Pentagon Papers case, the publishers were not prosecuted. Assange has not yet been the subject of a U.S. criminal prosecution, but it may happen.

The newspaper press is obviously an addressee of the First Amendment, but an issue remains as to whether a website such as WikiLeaks is part of that press. Furthermore, Assange and WikiLeaks seek to challenge the very idea and practice of government secrets altogether. Such a claim is unlikely to receive full First Amendment protection.

13. Bradley Parker (CUNY School of Law), Note - Material Support and the First Amendment: Eliminating Terrorist Support by Punishing Those with No Intention to Support Terror?, 13 N.Y.C. L. Rev. 201 (2010). The abstract states:

In this Note, I argue that the present prohibition on providing material support to designated foreign terrorist organizations in the form of "expert advice and assistance" is misguided in the larger context of the interminable "War on Terror." The prohibition should be viewed as a violation of the First Amendment of the U.S. Constitution because the terrorism support statutes are not in accord with Scales v. United States and Brandenburg v. Ohio. The broad interpretation of material support prohibitions is a throwback to McCarthyism and essentially criminalizes the provision of advice only when offered to a certain disfavored political organization that has been designated by the Secretary of State as a Foreign Terrorist Organization ("FTO"). Finally, I argue that material support statutes should be narrowly drawn, requiring specific intent to further the illegal aims of an FTO in order to prevent misguided prosecutions against individuals who have no intention to support the illegal aims of a designated FTO. Focusing law enforcement resources on individuals who do not intend to support violent or even illegal acts of an organization ultimately makes us more vulnerable to future attacks.

14. Flora Sapio (Julius-Maximilians-Universität Würzburg), Legal Erosion and the Policing of Petitions. The abstract states:

Is the PRC legal system pursuing a trajectory towards liberalization, or has it embarked upon a different developmental path? To provide an answer to this question, comparisons of China with an ideal legal order have been considered less useful than approaches able to account for differences, seeming aberrations or twisted paths towards the rule of law. Besides, legal change has been seen driven by historical or institutional legacies.

This paper attempts to make sense of seemingly contrasting dynamics by bringing cross-fertilization between political science and law one step further. In this work, I conceive of the legal system as an entity composed by a multitude of legal and non-legal (political) institutions and organizations which are to a certain degree autonomous, and to a certain degree embedded in networks of communication, control or dependence. Any change in a given institution or organization will set in motion a chain of change which will propagate across the system or areas thereof. Outcomes will be neither regular nor predictable. To observers, at any of its states the system will seem balanced on a precarious equilibrium between progress towards the law and shifts away from the law. Holistic perspectives of the legal system are implicit in conceptions of the law as an agent of positive change. But, such perspectives have also a potential to account for the opposite development.

As an illustration of how legal change can set in motion a turn for worse, I develop an analytical tool I label ‘legal erosion’ and use it to observe political-legal responses to protests, with a narrow focus on protests by petitioners.

A progress towards ‘formal legality’ can be observed in this area too. Until 2003, protests by petitioners were managed through shelter and deportation (shourong qiansong). As this measure was abolished, the need to provide a renewed and different response to protests arose. But, the newer response to the policing of petitions was by no means more liberal than earlier ones. The practice to ‘pick up’ petitioners and bring them back, something that existed in parallel to shelter and deportation, became dominant and witnessed a process of legalization. By 2006, innovations by local organs and politicized interpretations of the law allowed to “attach” ‘retrieval’ to legislation on public security, and create a new class of minor offences related to petitioning. Significant continuities with the past could be observed at each stage of this process. The eventual result was a severe limitation of the right to petition, and the beginning of a vicious circle of politicization.

This article begins by arguing that it would be useful to build on existing (and implicit) conceptualizations of the legal system as a complex adaptive system, to examine systemic properties that induce shifts away from the law, while of course not neglecting the study of virtuous circles of liberalization. In the second paragraph, I elaborate a concept to enable analyses of the legal system’s resilience to perturbations. In the remaining part of the article I outline the adaptive process born out of changes in the means to govern petitioners. It is not clear that current models of institutional transformation can fully account for this development, as the “birth” of retrieval involved features of antithetical models of change.

15. Fabiana Velasques de Paula Machado (Inter-American Development Bank), Carlos Scartascini  (Research Department - Inter-American Development Bank), and Mariano Tommasi ( Universidad de San Andres, Department of Economics), Political Institutions and Street Protests in Latin America. The abstract states:

This paper argues that where institutions are strong, actors are more likely to participate in the political process through institutionalized arenas, while where they are weak, protests and other unconventional means of participation become more appealing. This relationship is explored empirically by combining country-level measures of institutional strength with individual-level information on protest participation in 17 Latin American countries. Evidence is found that weaker political institutions are associated with a higher propensity to use alternative means for expressing preferences, that is, to protest. Also found are interesting interactions between country-level institutional strength and some individual-level determinants of participation in protests.

16. Luis Carlos Jemio, Fernando Candia, and Jose Luis Evia, Reforms and Counter-Reforms in Bolivia. The abstract states:

This paper analyzes reforms and counter-reforms in Bolivia in recent decades and their effects on the policymaking process (PMP) and productivity. Bolivia’s PMP has shifted from a formal representative democracy to a “participative and direct type of democracy” where street protest and other non-conventional forms of political participation have become dominant. While reforms have increased productivity, they have failed to secure the political support necessary to assure long-term sustainability. In contrast, counter-reforms have so far enjoyed extensive political support, but productivity has stagnated since this process started, with declining economic growth and job creation—developments likely to undermine support for the counter-reform process. The document stresses the need to rebuild a consensus around a PMP capable of increasing productivity and employment creation while restoring social cohesion.

JFB