First Amendment Scholarship Update – Religion

Here is this week’s collection of newly available articles on religion topics:

1. Steven Douglas Smith (University of San Diego School of Law), The Paralyzing Paradox of Religious Neutrality. The abstract states:

This short essay discusses why the ideal of governmental religious neutrality is regarded as essential and axiomatic in a pluralistic liberal democracy, and also why the ideal is unattainable and incoherent. Revisiting earlier arguments and addressing new defenses, the essay was written to order as a contribution to a project-in-progress (a Blackwell series volume on religious liberty).

2. Steven Douglas Smith (University of San Diego School of Law), The Plight of the Secular Paradigm. The abstract states:

For many it has been axiomatic that liberal democratic governments and the laws they impose must be “secular”; this assumption pervades both constitutional law and much political theory. But there are indications that this secular “paradigm of legitimacy” is losing its grip; thus, while urging a rehabilitation of secularism, Rajeev Bhargava suggests that “[o]nly someone with blinkered vision would deny the crisis of secularism.” This essay considers that crisis.

Part I of the essay discusses the nature of a “paradigm of legitimacy.” Part II outlines the strategies of assimilation and marginalization that historically have supported such paradigms and considers the paradigm shifts that can occur when these strategies prove ineffective. Part III illustrates these observations by reviewing the process by which, beginning in the fourth century, a Christian paradigm replaced an earlier Roman one and then in turn declined in favor of a more secular view. Part IV, the longest in the essay, discusses the rise of the secular paradigm, the strategies that have supported it, and the increasing futility of those strategies that have led to the present distress.

3. Steven Douglas Smith (University of San Diego School of Law), Freedom of Religion or Freedom of the Church?. The abstract states:

This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church- a campaign devoted to maintaining the church as a jurisdiction independent of the state-- developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church- both the institutional church and the inner church- came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.

4. Nelson Tebbe (Brooklyn Law School), Nonbelievers, Virginia Law Review, Vol. 97, 2011. The abstract states:

How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. Nonbelievers and believers should receive comparable protection in some situations but not in others. The method I apply is polyvalent - it seeks to capture the full range of values that should matter, recognizing that the mix of relevant concerns may differ from doctrine to doctrine. Two arguments push against my piecemeal approach, however. First, scholars argue that the term religion should simply be defined to include (or exclude) nonbelievers in advance and for all purposes. Second, leading thinkers have recently criticized the special place of religion in American law. For them, even if nonbelief is not a religion, it should always be treated with similar solicitude. Rejecting both of these positions, I contend that definitional approaches are unlikely to be helpful, and that careful judges will determine the specialness of religion in a variegated way. Applying this method to several doctrines - including antidiscrimination, free exercise exemptions, church autonomy, government endorsement, and public funding - I propose protecting nonbelievers only in some of these areas. In conclusion, I suggest that adjudication of religious freedom claims generally is neither impossible nor senseless, despite the fears of some.

5. Alan E. Brownstein (University of California, Davis - School of Law), Continuing the Constitutional Dialogue: A Discussion of Justice Stevens’ Establishment Clause and Free Exercise Jurisprudence, forthcoming in Northwestern University Law Review, Vol. 106, 2012. The abstract states:

This article examines Justice John Paul Stevens’ religion clause jurisprudence from the perspective of a continuing dialogue about the meaning of the Free Exercise Clause and the Establishment Clause. The term continuing dialogue suggests that even for as formidable and long-tenured a jurist as Justice Stevens, important questions remain open and unresolved. The article identifies the values and concerns reflected in the many opinions Justice Stevens authored or joined. Then it moves beyond those writings to discuss unanswered questions about Justice Stevens’ understanding of the two religion clauses. In particular, the article explores potential dissonance between Justice Stevens’ contrasting interpretation of the Establishment Clause and Free Exercise Clause.

With regard to Establishment Clause challenges to religious displays, for example, Justice Stevens expressed substantial concern for the status and sensibilities of religious minorities confronted with state sponsored symbols reflecting majoritarian religious beliefs. These messages had the tendency to divide communities along religious lines by affirming the beliefs of larger faiths while disfavoring religious minorities and nonbelievers. Religious sensibilities, however, may be just as offended by regulations interfering with religious as they are by preferential displays. Minority faiths may suffer a similar sense of alienation and unequal treatment when government adopts general laws that avoid burdening the religious practices of majority faiths while denying exemptions to minority religions whose practices are burdened by comparable legislation. Yet these status and sensibility concerns are seldom discussed by Justice Stevens in free exercise cases.

Also, Justice Stevens joined the majority opinion in Employment Division v. Smith, a decision that sharply restricted free exercise rights and assigned the problem of providing religious accommodations to the political branches of government. One key argument supporting the holding in Smith was the Court’s concern that judicial protection of free exercise rights would require federal judges to engage in subjective, value-based, ad hoc balancing of free exercise rights and competing state interests, a task that exceeded their competence and judicial role. Justice Stevens also believed, however, that the Court must exercise vigilant oversight over discretionary religious accommodations. To satisfy Establishment Clause requirements, the Court must determine that accommodations do not unfairly favor certain faiths over others, and do not extend so far that they impose an unacceptable burden on others. The open question here is whether this Establishment Clause task can be accomplished by federal courts without undertaking the same kind of subjective, value-based, ad hoc analysis the Court rejected in free exercise cases.

6. Joni Hersch (Vanderbilt University - Law School), Characteristics of Color Discrimination Charges Filed with the EEOC. The abstract states:

Using detailed employment discrimination charge data from the EEOC, this paper provides unique information on the number of charges of color discrimination, the bases of the charges, the characteristics of individuals filing charges, and characteristics of the workplace. Claims of employment discrimination on the basis of color have been rising, from 1,424 in FY 2000 to 3,063 in FY 2009. Although many color discrimination claims are combined with race discrimination charges, 16 percent of color charges do not also include race as a basis. Color discrimination charges are filed by individuals of all races. Among color charges that do not include race as a basis, 15 percent are reported by Whites and 17 percent are reported by Asians. Color claims disproportionately include national origin and religion as additional bases.

7. Murat Akan, 'Religious' and 'Laik' Actors and the Question of Democracy in Turkey, APSA 2011 Annual Meeting Paper. The abstract states:

The rise of Justice and Development Party (AKP) has been taken by many scholars as an example of a religious actor furthering democratization. Such a conclusion rests on an insufficient attention to concrete policies, their politics and context, and overemphasizes the differences between religious and laik actors in Turkey. In particular, the rampant presentation of the post 1980-coup Islamist activism as a major contribution to civil society 1) misunderstands the nature of power in the socialization mechanisms deployed by religious communities on the youth, 2) misses the state support some “supposedly” grass roots religious movements received, and 3) ignores the embezzlement cases involving religious persuasion. The article closes with an examination of the religion policy of AKP through an analysis of parliamentary discussions, daily politics and high court decisions to show that AKP is pursuing anti-democratic religion policies which are of Kemalist heritage in general and of the 1980 military coup heritage in particular.

8. Susan B. Hansen(University of PittsburghDepartment of Political Science), The Political Mobilization of Seculars, 1980-2008, APSA 2011 Annual Meeting Paper. The abstract states:

This paper uses ANES data to analyze changes in religious political mobilization since the 1980s. Religious Traditionalists, Moderates, and Seculars will be defined in terms of church attendance, beliefs in Biblical inerrancy and the importance they attach to of religion. Both Secularists and Traditionalists have increased in number since 1980, and differ considerably in party identification, vote choice, and opinions on social issues. According to most recent research, secular perspectives are less likely to be articulated in mass political behavior than the views of more religious Americans. Yet while Seculars are still less partisan, and less likely to vote in primaries, their political involvement and interest have increased considerably. By 2004 and 2008 they were equally or more likely than Traditionalists or Moderates to register, vote, convince others how to vote, and be involved in campaigns. Church attendance has less independent impact on political involvement than in previous decades. While religious Traditionalists have become significantly more Republican, white Seculars are more likely now than in 1980 to vote for Democrats, despite their lack of strong partisanship. A pooled regression analysis, 1988-2008, will show that even with controls for other factors predicting political participation, antipathy to “Christian fundamentalists” (based on the ANES thermometer scores) is a significant predictor of political activism by Seculars as well as by religious Moderates. Demographic trends and survey data suggest what an increasingly secular America might look like.

9. Luis F. Mantilla (Georgetown University - Department of Government), Religious Parties in Secular States: Comparing Catholic and Sunni Political Activism in Mexico and Turkey, APSA 2011 Annual Meeting Paper. The abstract states:

Why do political parties engage in religious mobilization in some environments but not in others? This paper develops a cross-national comparison of patterns of religious mobilization in Sunni- and Catholic-majority countries, with an emphasis on the cases of Turkey and Mexico. In many Sunni-majority contexts, political parties maintain strong and explicit ties to religious communities, relying on their mobilization to compete in what are often hostile political environments. In Catholic environments, political parties generally avoid making claims about religious doctrine or forming entangling alliances with sectarian movements, with candidates seeking to court religious voters doing so primarily through generic appeals to religious values and identities. What explains these differences in religious mobilization in the political arena? I argue that the crucial factors that explain this historically contingent divergence are pattern of secular regulations, electoral laws, and religious communities. The paper uses both quantitative and qualitative research methods to explore and evaluate this argument. First, relying on an original dataset covering 198 elections in 65 countries from 1990-2002, I examine the current distribution of different forms of religious mobilization across Sunni-majority and Catholic-majority countries. Then, I compare the evolution of religious parties in two critical, most-similar cases: Turkey and Mexico. Despite their analogous patterns of religious mobilization early in the 20th century and their comparable socio-economic and geopolitical situations, crucial differences in the evolution of their religious communities and secularist institutions expanded sectarian mobilization in Turkey while depressing it in Mexico. By exploring the patterns of religious mobilization across two world religions and critical country-cases, this paper highlights the contingent quality of religion's impact on politics in general and electoral competition in particular.

10. Karam Dana , Kassra Oskooii and Matt A. Barreto (Univ Washington, Seattle), Mosques as American Institutions: Muslim Incorporation in American Politics, APSA 2011 Annual Meeting Paper. The abstract states:

Religious institutions and places of worship have played a pivotal role in American Politics. What about the role of the mosque? Does the mosque, as an institution, play any different of a role than that of churches or synagogues in political participation? Some scholars have argued that Islam as a religion and a culture is incompatible with liberal, democratic American values; not only is Islam inconsistent with the West, but it poses a direct conflict. This viewpoint has likewise been popularized in American and European media and by some government officials who have labeled Muslims as enemies of freedom and democracy. Through the examination of the Muslim American Public Opinion Survey (MAPOS), which has a large sample size (N=1410), we argue that the mosque emerges as an important indictor for Muslim social and political integration into American society. We demonstrate that not only do those Muslims who attend the mosque regularly are more likely to identify as American Muslims rather than by national origin, they are also more likely to believe mosques encourage Muslims to integrate into U.S. society. Our analysis further exemplifies that mosque attendance and involvement, beyond creating a common identity among American Muslims, leads to more political participation in the U.S. In contrast to prevailing wisdom, we also find that more religiously devout Muslims are significantly more likely to support political participation. Based on our findings, we conclude that there is nothing inconsistent with the mosque and American democracy, and in fact, religiosity fosters support for American democratic values.

11. Claudia E. Haupt (George Washington University Law School), Transnational Nonestablishment, forthcoming in  George Washington Law Review. The  abstract states:

Over the past decade, significant changes have occurred in the religious freedom jurisprudence of the European Court of Human Rights. The most recent indicators of change are the conflicting opinions displayed in the 2009 Chamber decision finding the mandatory posting of crucifixes in public school classrooms in Italy impermissible, and its subsequent reversal by the Grand Chamber in 2011. Taking a broader perspective, this Article argues that an emerging trend toward a transnational nonestablishment principle seems to be developing in contemporary Europe. This Article first places the emerging principle into a larger multi-level religious policy framework, one of several such frameworks that also include the Post-Reformation model as well as the U.S. Establishment Clause model. After surveying the development of nonestablishment principles in the United States, under the European Convention, in the law of the European Union and in individual countries, this Article then traces the contours of nonestablishment. In doing so, this Article illustrates that several useful comparisons can be made between the evolving understanding of nonestablishment in the United States and current developments in Europe. Some of these comparative insights – particularly in the public school context – may prove helpful in anticipating the likely future effects of an emerging transnational nonestablishment principle. This Article then assesses possible implications of the emerging nonestablishment principle in Europe, both short-term and long-term, arguing that theories of convergence and subconstitutionalism best describe likely long-term effects. The discussion over disincorporation of the Establishment Clause and recent developments in recalibrating the scope of the Establishment Clause with respect to indirect funding of sectarian schools in the United States provide an opportunity to assess the reciprocal effects of multi-level nonestablishment. Finally, this Article turns to the question whether a shared transnational nonestablishment baseline is emerging, arguing that a nonestablishment baseline as a normative matter is necessary in western-style democratic systems.

12. Gregory C. Sisk  (University of St. Thomas School of Law (Minnesota)) and Michael Heise (Cornell Law School), Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts. The abstract states:

In our continuing empirical study of religious liberty decisions, we find that Muslims asserting free exercise or accommodation claims were at a distinct and substantial disadvantage in the lower federal courts for the period of 1996-2005. Holding other variables constant, the predicted likelihood for success for non-Muslim claimants in religious free exercise or accommodation claims was approximately 38 percent, while the predicted probability for success for Muslim claimants fell to approximately 22 percent (with the disparity being slightly higher among court of appeals judges). In sum, Muslim claimants had only about half the chance to achieve accommodation that was enjoyed by claimants from other religious communities.

Drawing on insights from legal studies, political science, and cognitive psychology, we discuss alternative explanations for this result, including (1) a cultural antipathy to Muslims as a minority religion outside the modern American religious triumvirate of Protestants, Catholics, and Jews; (2) growing secularism in certain sectors of society and opposition to groups with traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the perception that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. Presenting a new threat to religious liberty, the persistent uneasiness of many Americans about our Muslim neighbors appears to have filtered into the attitudes of even such well-educated and independent elites as federal judges.

JFB