First Amendment Scholarship Update - Religion

Here is this month’s collection of newly available scholarship on religion topics:

1. Dan Weddle (University of Missouri at Kansas City - School of Law), Gaming the Establishment Clause: Intelligent Design in the Public School Classroom. The abstract states:

This article addresses the process by which the typical school board member or legislator has been asked to mandate the inclusion of intelligent design theory and critiques of evolution into the public school curriculum. It posits that as a matter of scientific theory, this debate is taking place before audiences patently unable to make informed scientific judgments. The constitutional problem with this process is that it is an illegitimate debate constructed to evade, not comply with the Establishment Clause. The conclusion is that the strategy employed by intelligent design proponents is especially troublesome because it “games” the Establishment clause in a way that defeats the central purpose of the Clause. Nothing is wrong with citizens pressing government to act in ways that coincide with particular religious beliefs; and nothing is wrong with government’s doing so if valid secular purposes are the true basis of the government’s actions. What ought not to be legitimate is citizens’ achieving religious goals by fooling a government agency into accepting sham secular purposes.

2. Neil A. Malhotra (Georgetown University), Jacob N. Shapiro (Stanford Graduate School of Business) and C. Christine Fair (Princeton University - Woodrow Wilson School of Public and International Affairs), A Religion of Peace? Islam and Support for Political Violence. The abstract states:

Discussions of how to deal with terrorism around the world have repeatedly touched on whether Islam contributes to a uniquely virulent strain of non-state violence targeted at civilians. These popular debates almost always conceive of “Islam” in general terms, not clearly defining what is meant by Islamic religious faith. We address this debate by designing and conducting a large-scale public opinion survey in Pakistan. We measure multiple elements of religiosity, allowing us to separately consider the relationship between militancy support and (1) personal piety, (2) support for political Islam, and (3) jihadism, which we define as a particular textual interpretation common to Islamist groups espousing violent political action. Further, we measure support for specific militant organizations using a novel form of an “endorsement experiment” to address the challenges of asking about these sensitive issues in a violent context. We find that neither personal religious piety nor support for political Islam is correlated with support for militant organizations. However, Pakistanis who believe jihad is both an external militarized struggle and that it can be waged by individuals are more supportive of militant groups than those who believe it is an internal struggle for righteousness.

3. Steven D. Jamar (Howard University School of Law), Challenges Presented to Law and Public Norms by Claims of Freedom of Religion Arising in Increasingly Diverse Societies, Journal of Law and Religion, Vol. 26, p. 595, 2011. The abstract states:

Because religion is a potent force for many people, it affects the content, structure, and function of law and the law's relationship to ordering society. The complexity and variability from state to state of the relationships of religion to social, governmental, and legal systems is remarkable. This variability and complexity stems from several major influences including in particular: (1) the diversity of religions and of people's understanding of and use of those religions; and (2) the mix of religions within a particular state. As predominantly secular countries become more ethnically and religiously diverse, particularly through immigration from regions religiously different from the host country (e.g., the Muslim emigration into Christian Europe), more free exercise and accommodationist demands are being made by those whose religions are not merely a variant of the dominant religion. These demands bring new challenges and require sensitive balancing of conflicting fundamental rights and liberties. This essay examines three books addressing these topics from various perspectives and uses them as a vehicle for some commentary on the nature of the problems encountered.

4. John William Tobin (Melbourne Law School), Should Discrimination in Victoria's Religious Schools Be Protected? Using the Victorian Charter of Human Rights and Responsibilities Act to Achieve the Right Balance. The abstract states:

The aim of this paper is to assess whether the capacity for religious schools to discriminate against staff and students on the basis of attributes such as their sexual orientation can be justified under human rights law, specifically the provisions the Victorian Charter of Human Rights and Responsibilities Act 2006. Two conclusions are offered. First, rather than being perceived as a simple conflict between the right to freedom of religion of schools and the right to non discrimination of adults, a proper human rights analysis also requires that the obligation to protect the best interests of children must also be taken into account. Second, an examination of the factors that must be considered when determining whether an interference with a human right can be justified, reveals that the exemption granted to religious schools under the Victorian Equal Opportunity Act represents not only an unreasonable limitation on the right to equality and non discrimination to be enjoyed by staff and students, it also contributes to an educational environment that is inconsistent with the best interests of children.

5. Aaron J. Saiger (Fordham University - School of Law), Religious Consumers and Institutional Change in American Public Schooling: Cases from Jewish Education, Journal of Law, Religion and State, Vol. 1, 2012. The abstract states:

The paradigm of American K–12 education is shifting as the institution of local educational polities, each responsible for own its 'common schools,' faces competition from programs of school choice. Although charter schools and related reforms are generally studied in terms of quality and equity, the rise of consumer sovereignty as an alternative to political sovereignty as an organizing principle for educational governance has much wider ramifications. Paradigms of choice have already begun dramatically to alter religious education and its relationship to public schooling. Moreover, because these paradigms rely upon consumer preferences and the aggregation of those preferences by markets, the shape of religious activity in state-subsidized schools will be determined increasingly by consumers and producers – parents and schools – rather than by political actors. Government is likely to find its ability to limit and guide religion/school interactions substantially, and increasingly, constrained.

In making this argument, this paper draws primarily upon examples from a small but instructive religious sector in American K–12 education, that of Jewish education. It discusses the direct deployment of the charter-school form to provide Jewish education. It then assesses ways in which shifts in the public framing of education from one of politics to one of markets has transformed public school politics in school districts dominated by Orthodox Jews.

6. Ashgar Ali Ali Muhamed (International Islamic University of Malaysia - Ahmad Ibrahim Kulliyyah of Laws) and Yusuff Jelili Amuda (Sultan Idris Education University - Faculty of Human Sciences), Crime Against Maids: An Evaluation of Shariah and Civil Law Punishment, OIDA International Journal of Sustainable Development, Vol. 2, No. 7, pp. 89-102, 2011. The abstract states:

It is undeniable facts that many maids whom have been abused sexually, physically, mentally, and psychologically by their employers or employer’s family or relative. Therefore, this study examines how Shari’ah punishment can be applied as a deterrent punishment and lesson to others. It is individual rights to work as employee based on his or her class, status, and educational career. Shari’ah is the only law that gives all rights to human being regardless of his or her status, gender, tribe, and religion. The study will apply quantitative and qualitative methods for the analysis. Questionnaire and interviewed would be conducted on subject matter in order to discover undocumented facts. The sample would be conducted in certain universities such as UPSI, IIUM, and UKM in Malaysia. This survey or data will be sampled as an empirical evidence and proof that many maids were sexually abused while some were inflicted with injuries. Globally, maids’ abuse is very serious and complex and it needs deterrent punishment to reduce high percentage of criminal against maids. The study also aims to discover the effectiveness of the Shari’ah to serve as best law to secure maids rights and protect them in working places. Finally, useful solution to outstanding problem and suggestions would be suggested in the findings.

7. Arshi Saleem Hashmi (National Defence University Islamabad), Bangladesh Ban on Religion Based Politics: Reviving the Secular Character of the Constitution. The abstract states:

The decision of Bangladesh Supreme Court to ban religion based politics reflects the ideology of the country’s founding fathers. It ensures secularism as the cornerstone of the Constitution. Thus, carrying out activities of any political party based on religion is a punishable offence. The Election Commission of Bangladesh demanded the religion-based parties in the country to amend their charters as they were in conflict with the supreme law of the land. Unlike Pakistan, Bangladesh’s constitution is based on secularism, nationalism, socialism and democracy. Hard secularism rejecting all kinds of religious activities encourages reaction, to eradicate the menace of religious extremism, soft secular approach of protecting and enforcing the equal rights of all religious beliefs and traditions can help instead of preferring one religion over others.

8. Kristen Henrard (Erasmus School of Law), Shifting Visions of Indoctrination and the Margin of Appreciation Left to States, Journal of Religion & Human Rights, pp. 245-251, 2011. The abstract states:

The Lautsi case turns around the question whether having a crucifix in classrooms of state schools violate state duties to respect parents’ religious and philosophical convictions in relation to education and to teaching (article 2, protocol no 1) and the freedom of religion of parents and pupils (article 9). Striking about Lautsi is that it gave rise to two judgments of the European Court on Human Rights, with radically different evaluations and outcomes: the Chamber decided unanimously that the Convention was violated, while 15 out of 17 judges of the Grand Chamber concluded it was not. The following analysis will demonstrate that the different outcome can be explained by a radically different starting point of analysis, which impacts on the interpretation of the relevant criteria and the evaluation of the facts. In the end the two Lautsi judgments signal shifting visions on the margin of appreciation (in the educational sphere). This needs to be explained in the broader framework of the Court’s doctrine of the margin of appreciation (left to the contracting state parties) and its jurisprudence under article 2 of the first additional protocol. Indeed, while the applicants invoke both article 9 and article 2 of protocol 1, the Court focuses its analysis on the latter article, since this constitutes the lex specialis of article 9 for the parent. At the same time it underscores the need for a holistic reading of the Convention and thus to take into account article 9 and the state duties of neutrality and impartiality in religious matters it enshrines.

9 Samuel J. Levine (Touro Law Center), Hosanna-Tabor and Supreme Court Precedent: An Analysis of the Ministerial Exception in the Context of the Supreme Court’s Hands-Off Approach to Religious Doctrine, Northwestern University Law Review Colloquy, Vol. 106, 2011. The abstract states:

The United States Supreme Court’s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court’s Religion Clause jurisprudence. On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations. The narrow issue at the center of the case is the "ministerial exception," a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees. This Essay suggests, however, that the real significance of Hosanna-Tabor goes beyond the Court’s application of the ministerial exception to the particular facts of the case. This Essay looks at the ministerial exception through the broader prism of the Supreme Court’s "hands-off" approach to religious doctrine, which prohibits judicial inquiry into a wide range of questions relating to religious practice and belief.

10. Dawinder S. Sidhu (University of New Mexico School of Law), Religious Freedom and Inmate Grooming Standards. The abstract states:

This Article explores the Eleventh Circuit's repeated rejection of challenges, under the First Amendment's Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), to "restrictive" inmate grooming policies (that require inmates to shave or cut their hair) in suits brought by plaintiffs who subscribe to a religion that mandates the growing of facial hair or long hair. It suggests, based on an analysis of case law, states' policies, and recent legal developments, that the Eleventh Circuit's approach in upholding these policies is no longer sustainable.

Today, thirty-nine states, the Federal Bureau of Prisons, and D.C., do not have restrictive grooming policies or expressly grant religious exemptions to such policies, leaving only eleven states -- including the three states within the Eleventh Circuit -- that enforce restrictive grooming policies without the availability of a religious exemption. Also of note is the fact that the Department of Justice has intervened recently in two RLUIPA cases on behalf of inmates, arguing that the restrictive grooming policies of California and Alabama must be invalidated unless the state can present evidence that the "specific plaintiffs" in the suit have given rise to a penological concern that justifies the policies. California settled its case and agreed to eliminate its restrictive grooming policy. Against this backdrop, the Eleventh Circuit's routine defense of restrictive grooming policies seems out of step and at least worthy of scrutiny.

Accordingly, I propose the following: assuming that a state's restrictive grooming policy requiring the cutting or shaving of hair substantially burdens a sincere religious practice of an inmate, and that the state’s penological interests undergirding the policies (such as security and order) are compelling, a court must probe the state as to why the existence of medical exemptions does not undermine these proffered interests and why restrictive grooming policies applied to inmates with relevant religious views is necessary given the fact that a vast and growing majority of jurisdictions do not have such policies or affirmatively grant religious exemptions despite sharing the same underlying penological interests as those states with restrictive grooming codes. A state with a restrictive grooming policy may satisfactorily defend these policies only by showing a particularized evidentiary basis for why the specific inmate in question poses an actual or threatened risk to a penological interest that supports the challenged policies.

This searching standard, I posit, should replace the more deferential standard that the Eleventh Circuit has applied. If adopted, the Eleventh Circuit would not only maximize the religious freedom of inmates, but prevent states from circumventing liability and restricting religious exercise by merely reciting its penological interests and providing generalized support for its policies. The court would also bring itself in line with what appears to be a shift in the ability of states to meet its penological goals without resorting to restrictions on grooming.

JFB