First Amendment Law Prof Blog

Judge Dismisses Atheists’ Suit Against Texas Governor’s Prayer Rally

As reported in the Houston Chronicle and the New York Times, U.S. District Judge Gray H. Miller has ruled that the Freedom from Religion Foundation and its member plaintiffs failed to demonstrate the “particularized concrete injury”  required to have standing to challenge Texas Gov. Perry’s promotion of and future participation in “The Response” prayer rally. The judge concluded that citizens’ participation in the event will be voluntary and those objecting to the event are not foreclosed from expressing their views by not attending, not engaging in prayer, voicing their opinions, and voting. FFRF has announced that it plans to appeal the ruling to the Fifth Circuit.  In April, the Seventh Circuit rejected FFRF's challenge to the President's issuance of a proclamation of a National Day of Prayer, also finding that insufficient injury to establish standing.  

JFB

 

Academic Journal on Secularism and Non-religion Launched

CNN’s Religion Blog notes the creation of a new academic journal, Secularism and Non-religion, which will start publishing in January, 2012. The journal, a joint project of Trinity College in Connecticut and the Non-religion and Secularity Research Network, an international interdisciplinary research network, posted this description of its focus:

Articles, written in English, will be accepted from experts in the social science disciplines of psychology, sociology, political science, women’s studies, economics, geography, demography, anthropology, public health, public policy, law and religious studies. However, contributions also will be considered from researchers in the fields of history, neuroscience, computer science, biology, philosophy and medicine.
 
Articles published in the new journal will focus on the secular at one of three levels: the micro or individual level, the meso or institutional level, or the macro or national and international level. Submissions should explore all aspects of what it means to be secular at any of the above-cited levels, what the lives of nonreligious individuals are like, and the interaction between secularity, nonreligion and other aspects of the world. Articles will explore the ideology and philosophy of the secular, secularism, nonreligion and atheism.
 
Although Secularism and Nonreligion will adhere to a traditional blind, peer-review referee process, it will be an open-access journal, meaning all articles will be freely available and able to be downloaded on the journal’s Web site: www.secularismandnonreligion.org.

JFB

New Books Probe the Toxic Potential of Secretive, Rich, and Unaccountable Religious Institutions

In the Sunday New York Times Gary Wills reviewed INSIDE SCIENTOLOGY: The Story of America’s Most Secretive Religion by Janet Reitman and RENDER UNTO ROME: The Secret Life of Money in the Catholic Church by Jason Berry. 

JFB

Video Game Trade Groups Seek Legal Fees After Victory in Brown v. EMA

Scotusblog gathers coverage of video game trade associations’ motion seeking over $1.1 million in legal fees and expenses stemming from their challenge to the now invalidated California law regulating the sale of violent games to minors. The Entertainment Software Association has previously received reimbursement for fees and costs after successful challenges to similar laws in Louisiana, Michigan, and Illinois.   

JFB

First Amendment Scholarship Update

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

1. Ruben G. Rumbaut (University of California, Irvine- Department of Sociology), Assimilation's Bumpy Road, published in AMERICAN DEMOCRACY AND THE PURSUIT OF EQUALITY, M. Chowkwayun & R. Serhan eds., pp. 184-219, Paradigm Publishers (2011).  The abstract states:

“Assimilation,” a protean concept with an American pedigree and a checkered past, is back in vogue. But in academic and colloquial usage, in social science, public policy and popular culture, the idea and the ideal of “assimilation” have had a bumpy history. Over time the term has conflated various normative prescriptions (“e pluribus unum,” “melting pot”) and empirical descriptions (cultural adaptations, economic mobility, social acceptance by a dominant group) to make sense of the incorporation of “ethnic” difference in American life. After more than a century of use and misuse the term itself remains confusing and contentious. For a “canonical” concept, there remains surprising ambiguity as to its meaning, measurement and applicability. This essay, prepared for a Festschrift in honor of Herbert J. Gans, explores the history of the idea in American society and social science as a master frame and the teleology of Progress underlying it; considers cultural, social, legal, economic and identificational indices of intergenerational change among contemporary ethnic groups based on an array of census and survey data; and raises questions about the limitations and paradoxes of the concept itself in the study of ethnicity and inequality in American life. Despite the grand narratives of modernization which undergird the concept of assimilation, neither race nor religion nor ethnicity has vanished in American life. Linguistic “Anglicization” and other forms of acculturation do proceed rapidly, especially among immigrant children and the second generation. But alongside undeniable upward social mobility from the first to the second generation for most groups, especially the children of the poorest and least educated - though the gains appear to peak in the second generation and decline or plateau thereafter - there is compelling evidence of widening “ethclass” and legal inequalities, of new conflicts and political mobilizations around ethnic and racial issues, and of downward mobility and marginalization for vulnerable segments of these populations. An undocumented status has become a caste-like master status blocking access to the opportunity structure and paths to social mobility for millions of immigrants. A fraught concept like “assimilation,” weighted by the normative baggage of its past, seems ill-suited to grasp these complex dynamics and to focus critical attention on enduring structural inequalities and persistent ethnic and pan-ethnic formations in this “permanently unfinished” society. 

2. John D. Haskell (University of Helsinki-Eric Castren Institute of International Law and Human Rights (ECI)), Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism and the Politics of Restatement and Denial, published in Emory International Law Review, Vol. 25, No. 1, (2011).  The abstract states:

Hugo Grotius (1583-1645) frequently occupies the title, ‘father of international law’. While the origins of professional lineage were a source of professional and personal conflict for jurists in the 19th century, scholars today tend to treat Grotius as either a symbolic marker of changing historical thought, or the symbolic figure of a style or school of global governance. These two contemporary streams of remembrance operate within a dense background of assumptions about the nature and possibilities of the global order, which raise at least three sets of curiosities. First, in light of nuanced scholarship of Grotius’ primary materials in recent decades, what does an emphasis on the actual content of Grotius’ work impart about the character of his times, and through what lens should we organize our understanding (e.g., political, juridical, theological, and so on)? Second, what inspires the almost cyclical (or perhaps more perversely, fetishistic) attraction to Grotius in the fields of international law and politics, and how might this help us better understand both the psychological and structural underpinnings of contemporary practice, or even the nature and trajectory of the profession in a more broad sense? And third, in lieu of any findings, what if any possibility does this attraction to Grotius open up for future strategic, or even imaginative engagement? In sum, what stories does the Grotius rhetoric allow us to tell about the international legal order, and do such stories carry any political, if not personal, impact?
 
It is these questions that I attempt to grapple with in this paper in the hopes of providing a concise synthesis of the various engagements within the Grotian tradition to better understand the imaginative contours of our contemporary professional vocabularies and reflect on any emancipatory possibilities this might open up. What seems particularly striking is while ever more scholarship exposes a strong empirical dissonance in respect to the memory of Grotius, such representations continue to exercise powerful sway over ongoing discussions about the past, present, and future of global governance. In response, I have organized the paper into three themes, which overlapping in some respects, are nevertheless helpful in parceling out the various approaches and motivations at work in the literature. The first and second sections provide an overview and then a revisionist account of the claims to what might be labeled the turn to ‘the secular’ and ‘liberal tolerance’. In the third section, the paper moves to reflect more broadly upon the implications of this attraction, attempting particularly to deduce some possible motivations for the continuous misreading of Grotius’ actual work. In conclusion, I briefly trace out some initial suggestions about an alternative future towards the legacy of the Grotian tradition, what might be characterized as a shift from a politics of restatement and denial to a politics of truth.

3. Meredith Render (The University of Alabama School of Law), Power, Paradigm, and Legal Prescriptions: 'The Rule of Law' as a Necessary but Not Sufficient Condition for Transitional Justice, published in TRANSITIONS, Austin Sarat, ed., (2011).  The abstract states:

This essay considers the various ways that law functions to sometimes perpetuate and sometimes prevent genocide and other mass catastrophes in transitional societies. In particular, the essay examines three conceptually distinct aspects of law within a given society -- the concept of law, the “rule of law” and the role (or function) of law – and posits that only by considering the interplay of these three aspects of law within transitional societies can we fully appreciate the necessity of a robust commitment to the rule of law as a bulwark against mass atrocity within transitional societies.
 
The essay offers a response and supplement to the insights contained in David Gray’s interesting essay, "Transitional Disclosures: What Transitional Justice Reveals about Law” in which Gray thoughtfully challenges the conventional view that a commitment to the rule of law is the sole and best hope for preventing mass atrocity given the role that “law” and legal officials often play in perpetuating mass violence, and contends that dynamic stability among competing and overlapping identities (i.e. religious, ethnic, class) and associations is necessary to stave off abusive regimes. While this essay accepts the latter insight, I argue that Gray’s multi-dimensional “law as paradigm” understanding of the relationship between legal institutions and abusive norms obscures important distinctions between the concept of law, the rule of law, and the role of law. By retracing these distinctions, the essay demonstrates that a robust commitment to the rule of law is indeed a necessary (but not sufficient) condition for preventing the rise of abusive regimes, even within Gray’s own prescription. 

4. Luke Beck, The Constitutional Prohibition on Religious Tests, published in Melbourne University Law Review, Vol. 35, No. 2, (2011).  The abstract states:

Section 116 of the Australian Constitution sets out four important guarantees of religious freedom. The fourth clause of that section provides that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. During the Convention Debates, the religious tests clause was described as being the least necessary clause of s 116 on the basis that there were no remaining religious tests in the Australian colonies and that it was outlandish to think that the Commonwealth would ever impose one. This paper seeks to explore the meaning of the religious tests clause and refute those two suggestions. It seeks to show that at the time of Federation religious tests remained in the Australian colonies. It also seeks to show that the Commonwealth today, albeit unconstitutionally, requires the satisfaction of religious tests for certain public positions. 

5. Niamh Howlin (Queen's University Belfast), English and Irish Jury Laws: A Growing Divergence 1825-1833, published in THE LAWS AND OTHER LEGALITIES OF IRELAND, 1689-1850, Michael Brown, ed., Ashgate, (2011).  The abstract states:

Although the Irish system of trial by jury had its roots in the laws of England, the late eighteenth and early nineteenth centuries saw the beginnings of a divergence between the jury systems of the two countries. By the second half of the nineteenth century the differences had become even more pronounced, and the effect that this had during the turmoil of the 1870s and 1880s has been documented elsewhere. There were various reasons why Irish jury trials operated differently to those in England; some relating to procedural variations which evolved over time; some with their roots in the specific social and political make-up of the Irish population; some stemming directly from a failure to legislate in the early years of the nineteenth century, and some arising out of differences between English and Irish juries legislation when this was eventually enacted in both countries. There were also numerous ways in which the differences between jury trials in the two countries manifested themselves. The social, political and religious make-up of Irish society in the late eighteenth and early nineteenth centuries meant that there was a comparatively small pool of potential jurors. In order to ensure that there were enough suitable jurors to try all civil and criminal cases, it was found necessary to provide for a lower property qualification for Irish jurors than pertained in England. The categories of persons exempted or disqualified from jury service differed in both countries. In addition, crown prosecutors in Ireland made use of their right to order jurors to ‘stand aside’, and all parties made extensive use of their right to challenge jurors where this was deemed necessary. The cumulative effect of these factors was that Irish juries had their own distinctive composition. There also arose, as a result, several notable differences in relation to certain aspects of jury procedure in the two countries. These seemingly innocuous procedural discrepancies could have a significant impact on the trial itself, and on the justice system as a whole. This paper examines the perceived need to legislate for jury reform in the early nineteenth century, and considers why attempts to introduce Irish jury legislation in the wake of the English Act of 1825 initially failed. Finally, it will outline the role of the Irish bench in shaping the Juries (Ireland) Act 1833. 

6. T.J. McIntyre (University College of Dublin-School of Law), Child Abuse Images and Cleanfeeds: Assessing Internet Blocking Systems, forthcoming in RESEARCH HANDBOOK ON GOVERNANCE OF THE INTERNET, Ian Brown, ed. Edward Elgar.  The abstract states:

One of the most important trends in internet governance in recent years has been the growth of internet blocking as a policy tool, to the point where it is increasingly becoming a global norm. This is most obvious in states such as China where blocking is used to suppress political speech; however, in the last decade blocking has also become more common in democracies, usually as part of attempts to limit the availability of child abuse images. Numerous governments have therefore settled on blocking as their “primary solution” towards preventing such images from being distributed.
 
Child abuse image blocking has, however, been extremely controversial within the academic, civil liberties and technical communities. Why have these systems been so controversial? Two lines of criticism can be identified, which might be termed the practical and the principled. The practical argument claims that blocking is ineffective, with ill-defined goals and easily evaded by widely available circumvention technologies. The principled argument, on the other hand, is that blocking systems undermine the norms associated with freedom of expression in democratic societies.
 
This chapter introduces and evaluates these claims by examining three prominent examples of child abuse image blocking – the United Kingdom Internet Watch Foundation Child Abuse Image Content list, the European Union sponsored CIRCAMP system and United States hash value systems. It discusses the operation of each and the extent to which the critics’ concerns are borne out. It concludes by considering the lessons which might be learned for proposals to extend blocking to other types of content. 

7. Kristie Anne LaSalle, Note - A Prescription for Change: Citizens United's Implications for Regulation of Off-Label Promotion of Prescription Pharmaceuticals, published in Journal of Law & Policy, Vol. `9, p. 867 (2011).  The abstract states:

This Note examines the complex regulatory structure that controls off-label promotion of prescription pharmaceuticals. Using the recent case of United States v. Caronia as an example of the unconstitutional shortcomings of this regulatory scheme, the Note analogizes the FDA's obstruse regulatory scheme to the corporate campaign contributions limitations struck down in Citizens United v. FEC, and argues that the same logic applied in Citizens United should be applied to the regulation of truthful speech regarding prescription pharmaceuticals. 

8. Clive Walker (University of Leeds-Centre for Criminal Justice Studies (CCJS)), Militant Speech About Terrorism in a Smart Militant Democracy, published in Mississippi Law Journal, Vol. 80, No. 4,  (2011).  The abstract states:

When faced with terrorism, the state should be “militant” but, state action must recognize that terrorism often represents endemic reactions to modernity and late modernity. The “smart militant state” must therefore work out forms of militant reaction that become more or less per-manent and must adopt forms that can be accommodated within fundamental values rather than displacing them even during a temporary period of “emergency.” Having thus set the scene for action by a “smart militant democracy,” it is intended in this paper to consider the performance by the United Kingdom state in the context of a classical dilemma facing a militant democracy. That context is the appropriate response to militant speech—speech that in some ways encourages extremist political violence, but which is deli-vered in a mode that avoids participation in violence or even the traditional inchoate crimes of incitement or solicitation. Just two responsive state measures of militancy will be selected for discussion in this paper. Both were enacted by the UK's Terrorism Act 2006, and both relate to indirect incitement and glorification of terrorism. 

JFB
 

Tx. Governor's Promotion of Prayer Rally Under Legal Fire on Multiple Fronts

As reported in the Houston Chronicle, the ACLU of Texas is seeking information about whether public funds will be spent on the August 6 Reliant Stadium prayer rally being promoted by Texas Governor Rick Perry. To determine "the degree to which state resources have been or will be used for the planning and promotion of this event and for state officials’ participation in it," the ACLU has filed open records requests with Gov. Perry, the Harris County sheriff, auditor, fire marshal, and from the City of Houston.

Last week the Freedom from Religion Foundation filed suit to end Perry’s involvement in the event. The FRFF complaint charges that Governor Perry’s call for participation in the rally violates the Establishment Clause by “giving the appearance that the government prefers evangelical Christian religious beliefs over other religious beliefs and non-beliefs, including by aligning and partnering with the American Family Association, a virulent, discriminatory and evangelical Christian organization known for its intolerance.”  Individual FRFF members named as plaintiffs in the complaint offer the following description of how they have been and will by Governor Perry’s involvement with the event:  

The individual plaintiffs are non-believers who support the free exercise of religion, but who strongly oppose the governmental establishment and endorsement of religion, including prayer and fasting, which are not only an ineffectual use of time and government resources, but which can be harmful or counterproductive as a substitute for reasoned action.

The individual plaintiffs have each been exposed to promotions of the Christian prayer rally to be held on August 6, 2011, initiated and advocated by Governor Perry, including through wide and extensive media coverage; as non-believers, the individual plaintiffs are excluded from intended attendance at the Governor's event.

The FRFF press release announcing the suit specified the relief sought:    

The federal lawsuit seeks to declare Perry’s participation in the prayer rally and his proclamation unconstitutional, to enjoin his further involvement, and to order corrective action. FFRF seeks to stop further publication of the proclamation, to declare the use of the official state seal of Texas unconstitutional, to order the governor to withdraw permission for the AFA to use his written and videotaped promotions (“Gov. Perry’s Invitation Video”) and radio recordings at their website, to remove links from the governor’s website, as well as enjoining Perry from issuing and disseminating further Day of Prayer proclamations or designations.

 JFB

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:
 
1. Christopher G. Bailey (University of Texas at Austin- School of Law), The Letter of Richard Wyche: An Interrogation Narrative, forthcoming in Proceedings of the Modern Language Association (PMLA).  The abstract states:

This is a translation, with introduction, of the Letter of Richard Wyche – one of only two heresy interrogation narratives from medieval England written from the perspective of the accused heretic.
 
The Letter is an autobiographical account of Richard Wyche’s interrogation, in 1402-1403, at the hands of church officials. Wyche originally composed the Letter in (Middle) English but it survives only in a Latin translation, alongside other forbidden texts in a manuscript now in Prague. Wyche wrote and covertly sent away this Letter to an audience of intimates sympathetic to the cause (the so-called Wycliffite or Lollard heresy) before his interrogations ended. Ultimately, Wyche was freed and lived several decades before he was finally burned at the stake for his heretical beliefs, in 1440.
 
Few similar narratives survive from the pre-modern era, and none combines public drama with novelistic inwardness, or layered artifice with personal urgency, as does the Letter. Not just a literary or religious artifact, the letter is a legal narrative comfortable alongside classics such as those presented by Natalie Zemon Davis (Fiction in the Archives) and R. Po-Chia Hsia (Trent 1475).
 
The Letter is a counter-authoritarian and transnational work, produced under enormous pressure and preserved in an alien land and alien language. The fact that such effort was taken to snuff it out, and to save it, lends all the more weight to this engrossing narrative. Still, the author refuses to serve as a stereotyped “heretic” or fit his story into a generalized master narrative. Instead, humanizing details and complicated emotions serve as the engines of an extended consideration of the limits of institutional demands on individual conscience. Wyche’s Letter offers an ambiguous, dramatic meditation on the boundaries of political, spiritual, and social faith, truth, and compromise. 

2. Haider Ala Hamoudi (University of Pittsburg-School of Law), Book Review: Constitutional Theocracy by Ran Hirschl, forthcoming in Osgoode Hall Law Journal.  The abstract states:

When I was a child, the chant I always associated with Islamism was “the Qur’an is our constitution.” Gradually it has been replaced, however, with the mantra of the Muslim Brotherhood in Egypt, “Islam is the solution.” These simplistic tropes seem similar, but the difference between them is significant. In many ways, this distinction lies at the heart of the considerable contribution that Ran Hirschl has made in his fine work, Constitutional Theocracy, to the understanding of constitutional governance in societies where there is a substantial legal and formal recognition of religion. However, this distinction also reveals the biggest problem in his analysis. Simply stated, one of these slogans (“the Qur’an is our constitution”) is logically incompatible not only with modern constitutional governance but also with the very notion of the Westphalian nation-state, while the other (“Islam is the solution”) is not.
 
To many people raised in a secular tradition, constitutional governance is necessarily secular. It is precisely this belief, often so thoroughly internalized that it is not questioned, that Hirschl convincingly critiques. While he acknowledges that the marriage of theocratic and constitutional governance is one fraught with friction, Hirschl also points out – correctly – that the two systems have far more in common than has been previously acknowledged. Less convincing is what I might describe as an ancillary thesis, though one Hirschl takes quite seriously, which is that the constitutional theocratic structure is a rational and prudent secular response to growing global religious fervor. Hirschl argues that constitutional theocracy is designed to empower courts, with their secularly trained elite judges, to interpret religious mandate, thereby constraining, limiting, and in some cases neutering the more radical religious claims. I do not mean that Hirschl is entirely entirely wrong about this, for surely he is describing some fair number of constitutional theocratic states accurately. Yet understood as a global feature of constitutional theocracy, his description seems flawed in at least two respects. First, the notion of court as secularizing agent may be widely applicable but, as Hirschl well knows, is by no means universal.
 
Second, and more importantly, Hirschl seems to be conflating two different phenomena. The first are traditional and informal forces of law-making and law interpretation, from tribal councils to local priests (i.e., those likely to proclaim Qur’an as constitution), that any state instrument, including a court, would seek to constrain and limit for reasons that anyone who has read her Weber knows well. The second are religio-political movements operating within the state and competing for maximum control over state institutions and apparatus. To assume that these immensely popular movements, which are perfectly comfortable within a national constitutional structure (but still believe Islam to be the solution), will not be able to exercise significant influence over a judiciary seems fanciful and difficult to defend, at least as an empirical matter. It seems that Hirschl therefore describes not so much the successful constraining of religion by forces of secularism so much as the destruction of the traditional mechanisms for the creation of religious law and their replacement with something altogether different – whether the new mechanisms be secular or simply some dramatic mutation of religio-legal norms as to enable them to fit better within a modern state paradigm.
 
The review proceeds in two Parts. Part One describes Hirschl’s central thesis and explains why it is a fresh and compelling contribution. Part Two describes the ancillary claim that the courts in constitutional theocracies operate as secular agents and some of the problems associated there with. 

3. Jozsef Meszaros (University of Pennsylvania), The New Pornographers: Neuroscience Justifies a Robust Regulatory Response to Young People Raping and Taping. The abstract states:  

An increase in the occurrence of young men participating in and recording violent gang rapes has been documented not only in the United States, but in at least eight other developed nations. Members of the communities affected, politicians, and researchers all express bemusement at the heinous nature of these acts. In what some have described as a mimetic act, the perpetrators imitate the sexual violence they witness in increasingly debasing pornographies. Yet, little has been done in the past two decades to curtail the uncanny expansion of hardcore pornography’s influence on the nation’s youth. Aside from the occasional obscenity prosecution or the toothless disclaimers that stand between adolescence and the visual world of sexual violence, the United States has been remarkably passive in its treatment of hardcore pornography. Laws governing pornography have primarily addressed the impact, on adults, of pornographic portrayals of children. How pornographic portrayals of adults affect children, on the other hand, has been largely overlooked.

This article argues for the necessity, and plausibility, of internet pornography regulation sensitive to the realities of modern life, feminism, and developments in neuroscience. That Congress has untapped police power in this space is plainly clear. At the same time, as such a dynamic and ubiquitous form of media, internet pornography poses numerous challenges for legislators tailoring regulation respectful of Constitutional norms. That young people are imitating sexual violence—filmed and consumed for adult pleasure—is a claim that can be supported using psychology, sociology and most convincingly, neurobiology. To support the claim that such imitation is traceable to the viewing of hardcore pornography, this article provides a synthesis of emerging work on mirror neurons, described by the prominent neuroscientist V.S. Ramachandran as the single most important “unreported” story of the decade. If the externalities of a pervasive and well-funded hardcore pornography industry are to be redirected onto the producer, a sensible regulatory framework is needed that understands exactly how pornography operates on its consumers, including children. Obscenity statutes, feckless for their reliance on reluctant and often overburdened prosecutors, have never shown themselves to be adequate. Rather than adopting an obstinate prohibitionist stance, this article suggests incorporating lessons from various regulatory frameworks that have both shaped and have been shaped by social behavior.

4. Charles J. Russo and William E. Thro (Christopher Newport University,) Another Nail in the Coffin of Religious Freedom? Christian Legal Society v. Martinez, published in  Education Law Journal (Vol. 12).  The abstract states:

Amid on-going battles over the place of religious groups and even religion itself in the marketplace of ideas known as American public education, the United States Supreme Court added fuel to the fire in Christian Legal Society v. Martinez. In Christian Legal Society, the Court affirmed an order of the Ninth Circuit, agreeing that officials at a public law school in California had the authority to implement a policy effectively marginalizing religious freedom by requiring an on-campus religious group to admit all-comers from the student body, including those who disagree with its beliefs, as a condition of becoming a recognized student organization.
 
On remand for consideration of whether law school officials applied the all-comers policy selectively to the Christian Legal Society (CLS), the Ninth Circuit joined the Supreme Court in placing another nail in the coffin of religious freedom. In so doing, the Ninth Circuit rejected the claim of the CLS on the ground that organizational leaders failed to preserve their argument that law school officials selectively applied the policy for appeal, making it apparently the only public institution of higher learning in the United States with such a policy in place.
 
Whether Christian Legal Society is a victory for those who think that students should not be subject to discrimination due to their religious beliefs or a setback for religious freedom depends, of course, on one’s point of view. Regardless of how one interprets Christian Legal Society, it has the potential to change the landscape of religious freedom in the United States dramatically insofar as officials can potentially block faith-based groups from public facilities. In light of the ramifications for religious freedom that Christian Legal Society raises for the United States and the United Kingdom, the remainder of this article is divided into two major parts. The first section reviews the facts, judicial history, and the opinions in the Supreme Court’s ruling in Christian Legal Society. The second part reflects on what Christian Legal Society means for religious freedom in educational settings. The article rounds out with a brief conclusion. 

5. Jeffrey A. Parness (Washington and Lee University and Northern Illinois University-College of Law,) Civil Unions and Parenthood at Birth, published in  Illinois Bar Journal, Vol. 99 (October 2011). The abstract states:

The Illinois Religious Freedom Protection and Civil Union Act (RFPCU) took effect on June 1, 2011. It recognizes civil unions, affording unionized parties “the same legal obligations, responsibilities, protections and benefits as are afforded to spouses.” Parties may be “of either the same or opposite sex.” The RFPCU reflects federal constitutional equalities. As declared in Eisenstadt v. Baird, 405 U.S. 438 (1972), “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental inrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
 
Notwithstanding the directive for “same” treatment, however, marriages and opposite sex unions are naturally different than same sex unions. At times there can be no absolute sameness. Consider parenthood. Same sex unions can never produce children genetically-tied to both partners. Similarly, though husbands and wives are generally accorded equal treatment regarding children born into marriage, here too there are differences. Only wives bear children. The U.S. Supreme Court has declared that mothers automatically are accorded parental rights at birth, while fathers only have parental opportunity interests which must be affirmatively seized.
 
How should legal parenthood at birth arise when children are born into civil unions? Should the standards differ between same sex female and male couples? Between married and unionized opposite sex couples? These questions are addressed in the article, which explores the Parentage Act, the Gestational Surrogacy Act, and voluntary paternity acknowledgment practices. The article concludes that Illinois legislators should consider new parentage laws rather than leaving important family law policies to the Illinois courts which can only resolve assisted reproduction and other parentage cases “on the particular circumstances presented.” In re Parentage of M.J., 203 Ill.2d 526 (2003). “Unitary” families, subject to significant potential governmental protections under Michael H. v. Gerald D., 491 U.S. 110 (1989), deserve more clarity so that parent-child relationships can develop early on with little fear of later disruptions. 

6. Colin D. Pearce (Clemson University-College of Business and Behavioral Science), Personal Religious Beliefs in the Workplace: How Not to Define Indirect Discrimination, published in The Modern Law Review, Vol. 74, Issue 2, pp. 287-305 (2011).  The abstract states:

In cases concerning indirect religious discrimination the claimant must demonstrate that an otherwise neutral measure has caused her to suffer a particular disadvantage because of her religion. In Eweida v British Airways the Court of Appeal held that personal religious beliefs which are not part of official religious dogma cannot be relied upon as the basis for a claim of indirect discrimination. I discuss, first, the reasoning of the Court of Appeal in Eweida; then I examine the way personal religious beliefs have been treated in other cases in Britain and in the United States; finally, I place the issue in a wider human rights framework. 

7. Colin D. Pearce (Clemson University-College of Business and Behavioral Science), Future Technoscientific Education: Atheism and Ethics in a Globalizing World, published in Bulletin of Science Technology Society, Vol. 31, No. 2, pp. 81-102, (April 2011).  The abstract states:

This article attempts to assess the claim that the unum necessarium in our time is the general dissemination of scientific knowledge because liberal civilization or the “good society” cannot be had in the presence of traditional religion and “metaphysics.” The paper attempts to place this claim in the context of continuing globalization and related questions such as 9/11, Fundamentalist Islam, Sino-Western relations, “pop” atheism and the prospect of a “post-human” future. The paper describes the continuance of pre-Enlightenment traditions and beliefs even as constant globalizing influences with their attendant secularism, atheism and technologism make their presence felt. The paper canvasses the views of Chet Raymo, C.S. Lewis, Bryan Appleyard, Werner Heisenberg, Stanley Rosen, Henry Adams, Friedrich Nietzsche Martin Heidegger and Francis Fukuyama as a means of assessing the claim that an education rooted in a simple commitment to scientific progressivism will be inadequate to the demands of the 21st Century. 

8. Christopher C. Lund (Wayne State University Law School), Understanding the Ministerial Exception, published in North Carolina Law Review, Vol. 90, No. 1 (Fall 2011).  The abstract states:

Over the past forty years, courts have developed a body of law known as the “ministerial exception,” under which churches have a sort of constitutional immunity from employment discrimination claims brought by their ministers. Lower courts have all generally recognized this exception to some degree. But its contours are fiercely disputed and the Supreme Court has never clarified its boundaries or even whether it exists at all.
 
Disagreement also abounds at the more theoretical level, where we lack much of a shared understanding of the purposes behind the ministerial exception. Courts and commentators have often focused on establishing (or rebutting) one or another particular justification for the ministerial exception in one or another particular context. That has been valuable. But with such a narrow focus, we have missed some important aspects of the larger picture.
 
This article begins by suggesting that the ministerial exception is best conceived not as a single indivisible whole, but as the composition of several different discrete immunities. The piece sees the ministerial exception as having three components - a relational component, a conscience component, and an autonomy component - each with different purposes and different justifications. Deconstructing the ministerial exception in this way, the piece then examines the justifications for each of the various components of the ministerial exception, leading to a general and quite pluralistic defense of the thing that courts now call the ministerial exception.
 
This piece comes at an opportune time. Nearly forty years after the birth of the ministerial exception in the lower courts, the United States Supreme Court has finally agreed to hear its first ministerial exception case this fall. The case is EEOC v. Hosanna-Tabor, and the Court will have to decide both whether the ministerial exception exists and what it covers. After looking at the ministerial exception in general, this piece concludes by offering specific thoughts on the issues presented in Hosanna-Tabor. 

9. Kerry Lynn Stone (Institute for Jewish & Community Research), Clarifying Stereotyping, published in Kansas Law Review, Vol. 59, No. 3, (2011).  The abstract states:

People make comments all the time that include or invoke stereotypes. Sometimes those comments are indicative of their belief systems or values. Sometimes they are feeble – or genuine – attempts at humor or wit. Sometimes people speak rashly and in anger. Many times, people are misunderstood, and their true feelings are belied by a clumsy choice of words. Much of the law of employment discrimination necessarily implicates a searching probe into the often undisclosed – sometimes even to oneself – motivations, beliefs, and intentions that underlie an impel acts alleged to have been discriminatorily premised on someone’s race, gender, or protected class status. Rarely in this day and age does one who suspects that discrimination has befallen him have a “smoking gun” or an admission to that effect. Generally, the undisclosed mindset of a discriminatory decision-maker, far from a simple hidden secret, is actually a complex tapestry of unvoiced beliefs, assumptions, and associations. This tapestry, a victim of discrimination soon realizes, is typically too tightly woven to easily extricate the needed, discrete strand of thought that shows a predisposition to see or judge certain groups differently.
 
This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It then explains the widespread extrapolation of Hopkins by lower courts and the framework in which the case now operates.
 
This Article posits that Hopkins furnished guidance that is less than clear as to when so-called “stereotyping” is evidence that warrants evaluation by a trier of fact and when a comment is harmless or too attenuated from an adverse action to permit an allegation of discrimination to survive. The Article also identifies the various smaller, often unarticulated questions bound up in the larger issues of when impermissible stereotyping has occurred and how various courts’ failures to specify these questions and their answers may have led to the confused state of stereotyping jurisprudence. The Article aims to dispel the myth, propagated in part by courts’ misreading of Hopkins, that there is such a discrete cause of action as “stereotyping.” At the same time, it reviews the myriad of cases that have tried to decide, as a matter of law, when a stereotyped comment sufficed to create an issue of fact as to intentional discrimination and breaks down this complex question. Courts appear to have no real uniform standards for evaluating when a statement alleged to have stereotyped a plaintiff is probative and when it can only reasonably be seen as a misspeak, a mistake, or otherwise too “stray” to suffice as evidence that impermissible discrimination took place. 

10.  Asma Uddin, Blasphemy Laws in Muslim Majority Countries, published in The Review of Faith & International Affairs, (Summer 2011).  The abstract states:

In Pakistan, courts use blasphemy laws to bully religious minorities, as well as Muslims, and to justify broad censorship on speech. In Indonesia, officials impose criminal penalties on the Ahmadiyya and other groups whose teachings are deemed deviant from the state-sanctioned religions. In Egypt, officials use blasphemy laws to prevent conversions, inhibit proselytism, and silence critics. Such laws appease rather than control violent extremists and create a culture of impunity, where increasingly egregious crimes are committed with little or no consequences for the perpetrators. The United Nations Defamation of Religions Resolution similarly empowers states to limit religious expression and works counter to the rule of law. This paper discusses the blasphemy laws of Pakistan, Indonesia, and Egypt as well as the UN Defamation of Religion Resolution and reasons behind efforts which have been made to repeal both the laws and the resolution. 

11. Asma Uddin, Religious Freedom Implications of Sharia Implantation in Aceh, Indonesia, published in University of St. Thomas Law Journal, Vol. 7, No. 3, (2010).  The abstract states: 

On Monday, September 14, 2009, the provincial legislature in Aceh, Indonesia passed Sharia regulations imposing stringent criminal punishments for various sexual offenses, such as adultery and fornication. Sharia, literally meaning “way to a watering place,” is a set of divine principles that regulate a Muslim’s relationship with God and man by providing social, moral, religious, and legal guidance. It is implemented through fiqh, or Islamic jurisprudence, which is the science of interpreting religious texts in order to deduce legal rulings. The Acehnese Sharia regulations are the latest manifestations of a process of formal implementation of Sharia that began in 2002 in Aceh. Given the gravity of the associated punishments, the regulations have caught national and international attention, with human rights activists across the world decrying the severity of the corporal punishments imposed by the regulations. Much less frequently scrutinized are the regulations’ implications for other human rights – such as religious freedom.
 
This paper analyzes these regulations’ religious freedom implications for both Muslims and non-Muslims. Part I begins with an introduction to the religious freedom climate in Indonesia, including an overview of international and domestic religious freedom law and the extent to which Indonesia conforms to that law. Part II focuses on Aceh: its history and special character, including its semi-autonomy from the national government, and the process of Sharia implementation in the region. Finally, Part III analyzes Acehnese Sharia regulations in relation to international and domestic religious freedom law and explores the connection between the national state of religious freedom and the religious freedom problems unique to Aceh. Part III also raises broader questions of whether Sharia can ever be translated into positive law without implicating religious freedom. This paper concludes that Sharia regulations, insofar as they require the implementation of one interpretation of Islam to the exclusion of other interpretations, pose serious intra-Muslim religious freedom problems, particularly in the context of the modern nation-state, which lacks the types of checks on executive power that existed in classical Islam. Sharia implementation in the modern framework leads to the politicization of Islam; instead of the state serving Islam, Islam is manipulated to serve the state. 

12. Joanna Sax (California Western School of Law), Protecting Scientific Integrity: The Commercial Speech Doctrine Applied to Industry Publications, published in American Journal of Law and Medicine, Vol. 37, p. 203, (2011).  The abstract states:   

This Article analyzes the interaction of the commercial speech doctrine and the publication of misleading reports in the medical and scientific literature by private companies. This Article utilizes a novel approach in an attempt to maintain the integrity of science by ferreting out true science from misleading science. First, an examination of the publication tactics employed by some members of the pharmaceutical industry is described to demonstrate how some publications promote misleading information. Next, a discussion of current law is examined to show that no current regulations adequately address this area. This is followed by a proposal to regulate biased or misleading scientific publications. Finally, the First Amendment defense is considered. This Article concludes that industry publications are commercial speech and can be appropriately regulated. 

13. Kate Greenwood (Center for Health & Pharmaceutical Law & Policy/ Seton Hall Law School), The Ban on 'Off-Label' Pharmaceutical Promotion: Constitutionally Permissible Prophylaxis Against False or Misleading Commercial Speech?, published in American Journal of Law and Medicine, Vol. 37, p. 278 (2011).  The abstract states:

Critics of the Food & Drug Administration’s ban on off-label promotion often claim that it violates the First Amendment because it suppresses pharmaceutical manufacturers’ truthful speech about their legal - and beneficial - products. Characterizing the ban on off-label promotion in this way has more than rhetorical significance. Bans on truthful, non-misleading speech elicit special skepticism because of the belief that they “usually rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth.” The legislative history of the provisions of the Food Drug and Cosmetic Act that underlie the ban on off-label promotion, however, reveals that Congress was concerned that physicians were responding rationally to false and misleading promotional claims. In this Article, I explore the doctrinal questions raised by conceiving of the ban on off-label promotion not as a ban on “truthful speech to physicians” but instead as a prophylaxis against false and misleading pharmaceutical promotion. I review the evidence that false and misleading claims were commonplace before the ban’s adoption and persist today, along with the enforcement challenges the FDA confronted at that time and would confront were the ban lifted, and conclude the government likely could develop the factual record necessary to establish that Congress’ rejection of an after-the-fact case-by-case approach to combating false and misleading prescription drug promotion is constitutional. 

14. Gene R. Nichol Jr. (University of North Carolina (UNC) at Chapel Hill-School of Law ), Citizens United and the Roberts Court's War on Democracy, published in Georgia State University Law Review, Vol. 27, (2011).  The abstract states:

This article, published as part of the Georgia State Law Review symposium on the much-noted Citizens United case, argues enthusiastically that the Roberts Court’s bold recognition of a constitutional right to corporate electioneering is unjustified by the text, history, purpose or traditions of the First Amendment. The ruling radically and illicitly trumps democratic processes to favor the political interests of the already economically privileged. It purposely renders all campaign finance regulation silly and useless. It says, further, that there is something about our Constitution that renders us flatly powerless to deal with the scourge of purchased politics. This cannot be so. It is dangerous and demeaning to the world’s strongest democracy to suggest otherwise. 

15. James J. Jasper (City University of New York), Emotions and Social Movements: Twenty Years of Theory and Research, published in Annual Review of Sociology, Vol. 37, pp. 285-303, (2011).  The abstract states:

The past 20 years have seen an explosion of research and theory into the emotions of protest and social movements. At one extreme, general theoretical statements about emotions have established their importance in every aspect of political action. At the other, the origins and influence of many specific emotions have been isolated as causal mechanisms. This article offers something in between, a typology of emotional processes aimed not only at showing that not all emotions work the same way, but also at encouraging research into how different emotions interact with one another. This should also help us overcome a residual suspicion that emotions are irrational, as well as avoid the overreaction, namely demonstrations that emotions help (and never hurt) protest mobilization and goals. 

16. Jennifer Earl (University of California, Santa Barbara), Political Repression: Iron Fists, Velvet Gloves, and Diffuse Control, published in Annual Review of Sociology, Vol. 37, pp. 261-284 (2011).  The abstract states:

This article reviews research on political repression by social movement scholars. Four topics are discussed: (a) debates over the conceptualization of repression, the breadth of the concept, whether distinctions within the concept are productive and/or forms of repression are directly comparable, and the relationship between repression and political opportunities; (b) recent research on different types of repression, particularly protest policing; (c) an evaluation of research on different explanations of repression; and (d) an evaluation of research on the consequences of repression. Attention is also paid to areas where future research effort might be most productively spent, including identifying substantial gaps where more research is needed, where important debates exist that need research to push toward their resolution, where robust results exist but could be furthered by refinements, and where a more inclusive conceptualization of repression may link the study of repression to other significant literatures. 
 
JFB

First Amendment Scholarship Update

Here is this week's collection of newly available scholarship on speech and religion topics:
 
1.  Lawrence Rosenthal (Chapman University-School of Law), The Law Professor as Counterterrorist Tactician, published in Texas Law Review, Vol. 89, No. 1, (2010).  The abstract states:

This essay responds to Professor Aziz Huq's provocative article, "The Signaling Function of Religious Speech in Domestic Counterterrorism." Professor Huq contends that current counterterrorist doctrine overemphasizes the use of religious speech as a "signal' for incipient terrorist violence. He argues that the costs of this approach for religious liberty are significant, and its reliability suspect. Professor Huq's assessment of costs, however, overlooks that current doctrine permits only initiation of an investigation on the basis of religous speech, while even Professor Huq's suggested reforms would require consideration of a potential investigative subject's speech if they were operationalized. His proposals might make things worse. Professor Huq urges investigators to focus on subtle, nuanced, local discursive contexts, without considering whether the risk of error likely to inhere in such difficult inquiries exceeds the risk of error at present. Moreover, Professor Huq recommends investigative techniques that depend on community cooperation, even though, as he acknowledges, the insularity of incipient terrorist cells not only makes them difficult to detect, but also means that they are unlikely to come to the attention to community members willing to cooperate with the authorities. In contrast, current doctrine, Professor Huq admits, relies on the most readily available signals and therefore minimizes search costs -- a not inconsiderable virtue.
 
Politically accountable officials have powerful incentives to utilize effective counterterrorist tactics. Academics, in contrast, are effectively accountable to no one. The apparent unwillingness of those who are politically accountable for counterterrorist policy to put their eggs in Professor Huq’s basket of counterterrorism reforms should give us pause.

2. Reza Dibadj (University of San Francisco-School of Law), Expressive Rights for Shareholders after Citizens United, forthcoming in University of San Francisco Law Review (2010).  The abstract states:

On January 21, 2010, in a 5-4 opinion, Citizens United struck down § 203 of the Bipartisan Campaign Reform Act of 2002 which prohibited corporations and unions from using general treasury funds for “electioneering communications.” The vibrant commentary emerging from the opinion focuses, as one might expect, on whether the majority was correct in bestowing broad First Amendment rights on corporations and unions.
 
This Essay, however, emphasizes an undertheorized and often overlooked issue that Citizens United, perhaps unwittingly, brings to the fore: the First Amendment rights of shareholders. The core of my argument is simple: the opinion all but ignores these rights, and in doing so, is a signpost in the march away from shareholder capitalism.
 
The argument is developed in two principal sections. Part I explores the fundamental problem in Citizens United – the oversized First Amendment rights bestowed upon organizations such as corporations and unions – and the thoughtful emerging critiques that have emerged in response to the majority’s bold language. Part II argues that shareholders, like union members, have First Amendment rights that are trampled upon if the corporation is given free rein to engage in political speech. It concludes by responding to three powerful critiques of the notion that shareholders should have free speech rights: corporate law already protects them, they can simply divest their holdings if they do not agree with the corporation’s speech, and corporations are not state actors against whom constitutional rights may be asserted. 

3.  Jeremy G. Mallory (Kirkland & Ellis LLP), Still Other People's Money: Reconciling Citizens United with Abood and Beck, published in California Western Law Review, Vol. 47, No. 1, (Fall 2010).  The abstract states: 

Citizens United has already taken its place as a landmark decision of the 2009 Term of the Roberts Court. Its story is not complete, however: while it overturned Austin v. Michigan Chamber of Commerce and rejected the equalization of voice in politics as a valid justification for constraints on spending, it did not excise deeper concerns – both congressional and judicial – about the corrupting misuse of “other people’s money,” in Louis Brandeis’s memorable phrasing. A line of cases regarding the use of union dues for political purposes (primarily Communications Workers of America v. Beck and Abood v. Detroit Board of Education) and the legislative findings of the Tillman Act present a coherent description of political corruption that Citizens United left standing, but never seriously reckoned with. Given that these legislative and judicial convictions retain their vitality even after Citizens United, the Court must modify the Citizens United regime to accommodate this view of corruption. Permitting shareholders to opt their investments out of political use would be a sufficient protection for their right not to have their money used for political speech with which they disagree while protecting the corporation's right to political speech articulated in Citizens United.
 
This article draws out the difficulty recognized in the union-dues cases – having one’s money used for political speech with which one disagrees – and applies it to the new Citizens United world. Because Citizens United presented a legal rule with little guidance as to implementation, this article opens a much-needed discourse on how to work with the new world that has taken hold in campaign finance.

4.  Alan H. McGowan (The New School-Eugene Lang College for Liberal Arts), Franz Boas and the Progressive Spirit, published in Jewish Currents, (Autumn 2010).  The abstract states:

This article examines the political career of Franz Boas, called the Father of American Anthropology. In addition to being a pioneering anthropologist, Boas realized the impact that scientists could have on public policy. In addition to commenting on issues concerning race, he organized committees to defend free speech in educational institutions and elsewhere.

5.  Richard W. Garnett (Notre Dame Law School),The Political (and Other) Safeguards of Religious Freedom,published in  Cardozo Law Review, Vol. 32, p. 1815 (2011).  The abstract states:

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law and politics if this assignment is to work well, that is, to in fact promote and protect religious freedom. Among other things, it is proposed that governments should attend carefully to the “infrastructure” of religious freedom, and should work to create and sustain the institutional and other conditions that are conducive to religious liberty. And, notwithstanding Smith, courts should enforce vigorously, using judicially manageable standards, the church-autonomy principle and the institutional separation of religious and political authority. After all, the “political safeguards” of religious freedom can be effective only if there are work in society associations and authorities that are not merely political.  

6. Steven Douglas Smith (University of San Diego School of Law),The Constitution and the Goods of Religion,published in San Diego Legal Studies Paper No. 10-059.  The abstract states:

The Constitution forbids the “establishment” (whatever that means) of, “religion,” (whatever that is). Whether this prohibition, or a parallel constraint arising from liberal democracy itself, means that government must refrain from acting on religious, “reasons,” or, “grounds,” is a question that has exercised theorists for a generation or so. But from that general debate we can extract a somewhat narrower question: does the nonestablishment prohibition mean that government cannot act to secure or promote various, “goods,” associated with, “religion?”
 
This essay addresses that question by attempting some sorting out. The essay distinguishes between two different functions, an epistemic and an axiological functions, that religion might serve in political decision-making. Then, within the axiological function, the essay distinguishes among different kinds of goods that might be described as, “religious,” and considers whether these different goods are or are not legitimate bases for law under the Constitution. The essay concludes by suggesting that proponents of secular government often trade on an equivocation: under the general heading of, “religion,” they conflate distinct functions and both permissible and impermissible goods, and thereby condemn measures that are most likely the product of perfectly permissible considerations.  

7. Lina Papadopoulou,Trapped in History: Greek Muslim Women Under the Sacred Islamic Law, published in Annuaire International des Droits de l'Homme, Vol. 5, (2010).  The abstract states:

Sacred Islamic law (the Shariah) is applied on Greek Muslims and regulates their personal status and family relations, especially inheritance, marriage, divorce and, in the latter case, issues of custody and the award of parental responsibility. In this field the application of the Shariah does not touch upon private international law, as it is the case in many European countries; it is rather applied by the Mufti as internal Greek law on Greek citizens. As opposed to that, non-Greek Muslims bring their cases in front of civil courts, which have the discretion to decide according to Islamic law based on international private law provisions.
 
The present article sketches the factual presuppositions as well as the legal basis of and draws consequences from the application of Shariah law on Greek Muslims, especially women, who have consistently fallen victims of a multi-dimensional discrimination (Kofinis 2010). The focal point of the discussion is the violation of both the Greek constitution and European constitutional values.
 
The article departs (section II) from the personal and regional scope of the Islamic law application and its main material provisions and closely examines the contradictions between the Shariah legal ramifications and fundamental rights, especially gender equality, the right to a fair trial and the protection of the best interests of the child. Following the basic premise that Shariah law imposes second class status on women and is therefore incompatible with the constitutional values of liberal Western societies and the basic principles of human rights including gender equality and personal autonomy, it is asserted that there are political and legal ways to avoid its application, at least on European citizens. In the examination of the aforementioned ways of avoiding the Shariah implementation lies the main objective of the present article.
 
In order to attain this objective section III looks closer at the international law basis for the obligation of Greece to guarantee the Mufti’s jurisdiction regarding Muslim Greeks who are residents of Thrace and concludes that such an obligation no longer exists. Even on the hypothetical grounds that such an obligation was to be incurred, it is argued that the manifest unconstitutionality of many Shariah regulations and Mufti decisions constitutes adequate legal ground to negate their implementation. The article reaches the conclusion that the most viable and clear solution pertains to separation of organised religion from state affairs and to the establishment of a different system of regulation, which would eventually and hopefully lead to the uniform and unitary legal treatment of all Greek citizens independently from ethno-religious dividing lines and discriminations. 

8. Erik Nemeth (Cultural Security), Collecting Cultural Intelligence: The Tactical Value of Cultural Property, published in International Journal of Intelligence and Counterintelligence, Vol. 24, No. 2, pp. 217-238, (2011).  The abstract states:

The tightening interrelation of cultural property and international security - cultural security - creates a need for the collection and analysis of specialized intelligence. “Cultural intelligence” enables assessments of the tactical and strategic significance of antiquities, fine art, and cultural heritage sites to national and regional security. This paper defines a framework for the collection of cultural intelligence as a fundamental asset in countering threats to cultural security. Looting of antiquities as a tactic in campaigns of cultural cleansing, trafficking in antiquities as a source of funding for insurgents, and targeting of historic structures and religious monuments in political violence represent distinct threats to regional security. A critical initial step in countering the threats includes marshalling appropriate sources of information. Publications that report on the art market and cultural property globally and players in the antiquities trade offer opportunities as sources of cultural intelligence. Ultimately, the development of tactical and strategic cultural intelligence can reveal trafficking networks and assess risks to cultural heritage sites. As a starting point, this paper identifies viable sources of cultural intelligence. Conflicts in Afghanistan (2001) and Iraq (2003) provide examples in retrospect, while volatility in Mali presents an opportunity in the context of an emerging security risk. In conclusion, the paper speculates on the applications of cultural intelligence in regional security. 

9. Erik Nemeth (Cultural Security), Conflict Art: Scholars Develop the Tactical Value of Cultural Patrimony, published in Cambridge Review of International Affairs, Vol. 23, No. 2, pp. 299-323 (2010).  The abstract states:

Historically, empires recruited scholars to capture artworks as a complement to military victory. Over the past century, cultural scholars have integrated fine art and antiquities into campaigns of conquest and assessed the political ramifications of damage to historic sites and religious monuments in military intervention. Consequently, historians, archaeologists, and legal scholars have advanced the role of cultural patrimony in international conflict from a rite of conquest to a means of combat. In World War II, art historians in the Nazi regime planned plunder of artworks and destruction of historic structures as a tactic for conquest. During the Cold War, archaeological discoveries in developing nations enabled looting of cultural artifacts, and subsequent legal studies on the transfer of cultural property developed the value of cultural patrimony in the covert battle for control of the Third World. In the post-Cold War as transnational organized crime and terrorism exploit antiquities trafficking and target cultural sites in acts of political violence, scholars in international relations consider culture in security theories. Across the three periods of international conflict, cultural scholars have actively developed the tactical value of cultural patrimony and played a role in transforming the perception of plunder in the context of military victory. 

JFB
 

New Book Examines Fate of Academic Freedom as “Vocationalism” Increasing Dominates Higher Education

In today’s New York Times, Stanley Fish examines the arguments presented in Naomi Schaefer Riley’s new book, “The Faculty Lounges: and Other Reasons Why You Won’t Get the College Education You Paid For.” Fish explores the implications of Riley’s demonstration of the increasing dominance of a vocationally oriented mission in higher education for the protection of academic freedom and the continued existence of tenure.

JFB 

Modern Media, Minors’ Speech Rights, and Original Meaning: Brown v. EMA Divides Justices Scalia and Thomas

In today’s Washington Post, Robert Barnes looks at how the Court’s ruling in the violent video games case presents Justice Scalia’s and Justice Thomas’s sharply divergent views on what speech rights minors can claim under the First Amendment.    

JFB

Why Did Yale Shut Down Institute for Study of Antisemitism?

On Slate, Ron Rosenbaum criticizes Yale’s decision to end the operation of the Yale Initiative for the Interdisciplinary Study of Antisemitism.

JFB

First Amendment Scholarship Update

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

1. Richard H. Pildes (New York University School of Law), Elections as a Distinct Sphere Under the First Amendment, published in Money, Politics, and the Constitution: Beyond Citizen United, M. Yond ed., (2011).  The abstract states:

This essay asserts that the strongest legal arguments for justifying regulations of election financing, such as electioneering paid for out of a corporation’s or union’s general treasury funds, ultimately rest on the view that elections should be considered a distinct sphere of political activity for constitutional purposes. Elections should be conceived as distinct from the more general arena of democratic debate, both because elections serve a specific set of purposes and because those purposes arguably can be undermined or corrupted by actions such as the willingness of candidates or officeholders trade their votes on issues for campaign contributions or spending. Given this risk of corruption of the political judgment of officeholders, regulations of the electoral sphere - including how elections are financed - might be constitutionally permissible that would not otherwise be permissible outside the electoral sphere, including in the arena of democratic debate more generally. The essay argues that this is the form of argument best structured to be accepted within the American constitutional tradition and that is necessary to justify measures such as ceilings on campaign contributions, disclosure of campaign spending, and limits on the role of corporate and union electioneering. If such regulation would be desirable as a policy matter, its permissibility would depend on the ability to develop First Amendment principles permitting such regulation while still prohibiting regulations that some would see as somewhat similar in non-electoral environments. 
 
Even if the Supreme Court has implicitly rejected this argument in Citizens United (without directly confronting the argument), the various possible ways of responding constitutionally to the decision, through federal or state legislation, administrative regulation, or corporate governance rules, depend on conceptualizing clearly the nature of the underlying problem and the justifications for the specific policy response being adopted. Whatever the merits of any particular response, this essay argues that the best underlying justification for such responses will depend on recognizing the distinct values, purposes, and justifications that underwrite the role of elections in democratic societies.  

2. Ilya Shapiro and Caitlyn W. McCarthy (Cato Institute), So What if Corporations Aren't People, published in John Marshall Law Review, (2011).  The abstract states:

Corporate participation in public discourse has long been a controversial issue, one that was reignited by the Supreme Court's decision in Citizens United v. FEC, 130 S. Ct. 876 (2010). Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not "real" people. While it's true that corporations aren't human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he'd like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups. This essay will demonstrate why the common argument that corporations lack rights because they aren't people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.  

3. Joel M. Gora(Brooklyn Law School), The First Amendment: United, published in Georgia State University Law Review, Vol. 27, pp. 935-988, (2011).  The abstract states: 

This article defends the Supreme Court’s famous and controversial decision in the Citizens United case. In that case, the Court reaffirmed that the protections of the First Amendment are available to entities like corporations, labor union and non-profit groups and recognized that this protection extended to speech relating to the election or defeat of political candidates. In so holding, the Court invalidated provisions of key federal campaign finance statute which had made it a crime for those entities to engage in various kinds of election-related speech, and overruled certain prior rulings which had sustained such restrictions. The immediate consequence was that a non-profit conservative advocacy group, organized as a corporation, was free to produce and disseminate a movie sharply critical of then-Senator Hillary Clinton’s in connection with her 2008 campaign for the Presidency. The broader consequence, as the article argues, is to return the Court’s campaign finance doctrines back to the safe harbor of classic First Amendment principles. The article surveys the several arguments made to justify restricting the political speech of corporations, unions and other entities, and demonstrates how each of them is flawed when matched against these classic First Amendment principles. The article concludes that the Court’s handiwork will clear away many of the encrusted and unjustifiable features of a speech-chilling and association-dampening campaign finance regime.  

4. Catherine J. Lanctot (Villanova University School of Law), "Does LegalZoom Have First Amendment Rights? Some Thoughts About Freedom of Speech and the Unauthorized Practice of Law," forthcoming in Temple Political & Civil Rights Law Review (2011).  The abstract states: 

At a time of economic dislocation in the legal profession, it is likely that bar regulators will turn their attention to pursuing lay entities that appear to be engaged in the unauthorized practice of law. One prominent target of these efforts is LegalZoom, an online document preparer that has come under increasing pressure from the organized bar for its marketing and sale of basic legal documents. As regulatory pressure against LegalZoom and similar companies continues to mount, it is worth considering whether there may be unanticipated consequences from pursuing these unauthorized practice claims. In several well-known instances, lay people have successfully defended against such claims by asserting that the law-related activities they wanted to pursue were protected by the First Amendment.
 
The article first sketches some potential problems with the reflexive assumption that LegalZoom and its fellow travelers are engaged in the unauthorized practice of law. Even assuming that the practice of preparing routine legal documents for consumers runs afoul of many unauthorized practice statutes, however, there remains an open question of whether these statutes may themselves interfere with First Amendment guarantees. In particular, to the extent that these statutes broadly sweep vast amounts of law-related speech within their scope, they may infringe on free speech rights. The article sets forth some of the possible First Amendment arguments available to document preparers, without extensive elaboration, to call attention to the possibility that they may be raised in defense to an unauthorized practice prosecution. It concludes with a caution about aggressive pursuit of these online document preparers without careful consideration of the possible risks involved. A successful First Amendment challenge to an unauthorized practice statute could have repercussions far beyond the world of LegalZoom.  

5. Wilson Ray Huhn (University of Akron-School of Law), Cross Burning as Hate Speech Under the First Amendment to the United States Constitution, forthcoming in Amsterdam Law Forum (2011).  The abstract states: 

Cross burning is a particularly vicious form of a hate speech. Some American states and cities have enacted laws prohibiting cross burning, and in two cases (R.A.V. v. City of St. Paul (1992) and Virginia v. Black (2003)) the United States Supreme Court has issued decisions regarding the constitutionality of those laws. These cases establish the principle that under the First Amendment hate speech is not punishable as a crime unless the speaker intended to threaten another person or the speaker intended to incite an imminent act of violence. Furthermore, the cases reinforce the principle that under the First Amendment a person may be convicted of a expressive crime only if the law under which the defendant was charged is narrowly drawn to prohibit only unprotected speech.   

6. Natasha Lycia Ora Bannan, Domestic Workers and Their Right to Be Heard: Residential Picketing Makes Visible the Invisible, published in Critical Studies Journal, Vol. 4, No. 112, pp. 1-20 (2011).  The abstract states:

The right of domestic workers to peacefully picket and protest is guaranteed by the First Amendment, and has been recognized in numerous jurisdictions as a protected right. Peaceful protest in response to oppressive working conditions and unlivable wages is usually considered to be residential picketing for a lawful purpose. 
 
This paper addresses the nature of domestic workers' work as both gendered and racialized. It also highlights the distinction between the relationship domestic workers' have with their employer/homeowner from the absence of this relationship in traditional residential picketing situations. Modern-day domestic workers who are immigrant women of color are emphasized in this paper, as is the intersection between race, class, gender, and immigration status and how the convening of these statuses have produced a group of workers that have historically been exploited. In addition, I analyze the restrictions on residential picketing related to the right to privacy of the employer/homeowner and how that privacy right has historically disenfranchised and burdened women. Lastly, I suggest that should the right to picket an employer's home be limited or removed under time, place, and manner restrictions, domestic workers' speech will be chilled, and workers will likely withdraw from seeking alternative venues to challenge their oppression.  

7. William D. Araiza (Brooklyn Law School), The Paradoxes of Liberty: The Freedom of Speech (Re-) Considered, forthcoming in Amsterdam Law Forum (2011).  The abstract states:

The freedom of speech is crucial to an open society, as pointed out by Mill. The ECHR differentiates between the freedom of thought and expression, which corresponds to an inner and an outer element. Liberty is necessary to find truth; the freedom of speech supposes a possibility to state things that are true and untrue. Liberty also logically implies certain limitations, like the concept of clear and present danger. Moreover, the discourse of the freedom of thought and expression is changing radically in the European countries.  

8. Faisal Kutty (Valparaiso University School of Law), The Myth and Reality of 'Shari'A Court's in Canada: A Delayed Opportunity for the Indigenization of Islamic Legal Rulings, forthcoming in University of St. Thomas Law Journal (2011).  The abstract states:

The Ontario government’s passage of the Family Statute Law Amendment Act, 2005 ostensibly precluding the enforcement of faith-based decisions issued by arbitration panels pursuant to the Arbitrations Act, 1991, in the area of family law, brought to the fore a debate that has been raging in liberal democracies for some time. 
 
Those opposed to allowing the use of religious principles in resolving family disputes using the Arbitrations Act, 1991, raised some legitimate concerns about gender rights within religious communities. They also questioned the role of religion in secular society and opposed what they saw as privatization of the legal system. Opponents contended that religious groups should be able to govern their lives according to their conscience within the parameters of law if the constitutional right to freedom of religion and association is to have any real value. Consenting and informed adults, they argued, must be able to make religious choices even if others do not believe these are “correct” choices. 
 
The issues, of course, transcend dispute resolution and tug at fundamental tensions surrounding multiculturalism and national identity, the limits of accommodation and legal pluralism within a liberal democracy and the separation of church and state. I argue that Ontario lost a timely opportunity to devise a way to balance these competing rights and interests in a manner that respects all parties and protects the vulnerable. 
 
The controversy was a prime case to examine whether Islamic law and liberal democracy can co-exist within a liberal constitutional framework. Moreover, I also argue that Ontario also delayed an opportunity to indigenize or Canadianize Islamic law rulings in a manner that would help in the integration process of its Muslim citizens.  

9. Sarah Beresford (University of Lancaster), Seeking Secularism: Resisting Religiosity in Marriage and Divorce - A Comparative Study of England and America, published in Web JCLI, Vol. 3, (2011).  The abstract states:

This article explores some of the legal and religious aspects of marriage and divorce in England and Wales and America. It argues that legal marriage and divorce (if it is to continue to exist as a legal concept), should be purely secular and civil. In other words, there should be no religious involvement of any kind at the formation or demise of a legally regulated relationship such as marriage. This article further suggests that the state and the law should not facilitate or promote religiosity in marriage or divorce, nor should religious marriages should have any legal force. Instead of continuing to encourage religiosity in marriage and divorce, Law should instead look to ways of strengthening the secularisation of marriage and divorce.  

10. David Bilchitz (South African Institute for Advanced Constitutional, Public, Human Rights and International Law), Should Religious Association be Entitled to Discriminate?, published in South African Journal of Human Rights, Vol. 2 (2011).  The abstract states:

Should religious associations be allowed to engage in acts of discrimination on grounds prohibited in the Constitution where they claim their religious doctrines require it? This paper argues for this question, in general, to be answered in the negative and seeks in the process to explore the tension between advancing equality in South African society whilst recognizing the autonomy of private associations. The Strydom case – dealing with the dismissal of a gay music teacher from a church on grounds of his sexual orientation – provides the backdrop for an analysis of these issues. The paper critiques the work of two authors – Patrick Lenta and Stu Woolman – who argue that greater emphasis should be placed on freedom of association in these circumstances even where such associations promote values that are in direct contradiction to those contained in the Constitution. For Lenta, the core concern relates to ‘protecting diversity’ whilst, for Woolman, it involves ensuring a society with a high quantity of ‘social capital’. I shall argue that both authors pay insufficient attention to the South African context which provides a strong case for a presumption in favour of equality and non-discrimination. Moreover, an engagement with the history of religion of South Africa provides strong reasons to avoid simply leaving a private religious domain alone that is at odds with the political morality of the state. I shall also seek to show that the very values that both Lenta and Woolman are concerned with do not unequivocally support their conclusions and in fact provide a case for the contrary point of view. The arguments I provide seek to establish that courts should refuse to condone discrimination on prohibited grounds even where this occurs on the basis of religious doctrines. Ultimately, the paper argues for South Africa to adopt an egalitarian form of liberalism which recognizes limits on the freedom of religious associations to discriminate as this is necessary to ensure respect for the equal dignity of all individuals in the polity. 

11. Howard Kislowicz (Faculty of Law-University of Toronto), Richard Haigh and Adrienne Ng Osgoode Hall Law School-York University), Calculations of Conscience: The Costs and Benefits of Religious Conscientious Freedom, published in Alberta Law Review, Vol. 48, No. 3, (2011).  The abstract states:

This article examines the Supreme Court of Canada’s cost-benefit analysis of freedom of conscience and religion guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms in Alberta v. Hutterian Brethren of Wilson Colony. The article finds that while the Supreme Court’s reasoning was ultimately flawed, its use of cost-benefit analysis may be a positive development in the freedom of religion framework. The article also looks at the Court’s treatment of the freedom of conscience guarantee in relation to freedom of religion. The article suggests that this treatment may foreshadow a more uniform approach to the broader freedom of conscience and religion than was provided for in previous decisions.  

12.  Meital Pinto (University of Toronto), What are Offenses to Feelings Really About? A New Regulative Principle for the Multicultural Era, published in Oxford Journal of Legal Studies, Vol. 30, No. 4, pp. 695-723, (2010).  The abstract states: 

In recent multicultural conflicts, such as the Danish Muhammad cartoons affair and the religious controversy about having a gay pride parade in the holy city of Jerusalem, religious minority members have argued that certain acts should be prohibited because they offend their religious and cultural feelings. According to the orthodox view in current liberal thought, however, there should be no legal protection from mere insult to feelings and sensibilities, as related to sacred religious and cultural values as they may be. In this paper I challenge this view. I argue that certain offensive acts ought to be legally regulated and propose a normative principle for their regulation, which is consistent with neutral liberalism. 
 
I argue that some claims of offence to feelings boil down to a struggle for equality in the public sphere between competing cultural identities. I conceptualize such claims as claims that purport to protect people’s right in the integrity of their cultural identity. I suggest the vulnerable cultural identity principle, according to which the more vulnerable the social and civic status of one’s cultural identity is, the stronger her claim is from integrity of cultural identity. I argue that this principle avoids the problems of legal moralism and the subjectivity in evaluating painful feelings.   

13. Sara Weinrib, An Exemption for Sincere Believers: The Challenge of Alberta versus Hutterian Brethren of Wilson County, published in McGill Law Journal, Vol. 56, No. 3, pp. 719-750, (2011).  The abstract states:

In Alberta v. Hutterian Brethren of Wilson Colony, the Supreme Court of Canada reconfigured its approach to Section 1 of the Canadian Charter of Human Rights and Freedoms by holding that the final step of the R. v. Oakes test, the requirement of proportionality between a measure’s salutary and deleterious effects, provided the critical framework for its analysis. The author suggests that the Court’s emphasis on the last step of the Oakes test was not the most appropriate response to the specific minimal impairment argument Alberta presented. Alberta argued that the reason it could not safely offer an exemption from its licence photo requirement to Hutterites who objected to photos on religious grounds was because Syndicat Northcrest v. Amselem restricted government inquiries into the sincerity of religious beliefs. Ontario intervened in support of Alberta’s concerns. Although the Court did not address this minimal impairment argument, the author argues that it reflects an unnecessarily strict reading of how Amselem’s guidelines would apply in this context. In support, the author presents an exemption that would have cohered with Amselem and achieved Alberta’s safety objectives. The author then argues more broadly that the provinces’ concerns in Hutterian Brethren demonstrate the critical role the minimal impairment step of the Oakes test plays in generating solutions to clashes between laws of general application and minority religious practices. The Court’s new emphasis on the proportionate effects test, in contrast, may unfortunately discourage both parties from formulating potentially innovative alternatives.