Dane on Thoughts on the Architecture of Freedom of Religion and Freedom of Speech @perrydane

Perry Dane, Rutgers Law School, Thoughts on the Architecture of Freedom of Religion and Freedom of Speech, in the Notre Dame Law Review Reflection. Here is the abstract.

One goal of this paper is to try to give a holistic account of the structure of freedom of religion and freedom of speech, and their relation to each other. The paper describes a set of important but delicate analytic assumptions and distinctions that have traditionally organized these doctrines. It also tries to explain how those assumptions and distinctions have been coming under increasing pressure, especially dur to our current state of political polarization. The paper then applies those ideas, through the lens of Justice Jackson’s important anthropological insights in West Virginia State Board of Education v. Barnette, to gain a better understanding of the difficulties inherent in cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple.

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Koppelman on Justice Alito, Originalism, and the Aztecs @NorthwesternLaw @AndrewKoppelman

Andrew Koppelman, Northwestern University School of Law, has published Justice Alito, Originalism, and the Aztecs as Northwestern Public Law Research Paper No. 22-02. Here is the abstract.

Justice Samuel Alito is anachronistically mistaken when he claims, in his Fulton v. Philadelphia concurrence, that the original meaning of the Free Exercise Clause of the First Amendment is a judicially enforceable right to exemption from generally applicable laws. The doctrines and practices of strict scrutiny, narrow tailoring, and compelling interests came into existence in the 1960s. Alito’s evidence for his originalist claims misreads his evidence and has extravagant implications. If judicially crafted exemptions are to be defended, this case must be made on nonoriginalist grounds.

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Gerber on The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America

Scott D. Gerbert, Ohio Northern Univeristy College of Law, is publishing The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America in Glossae: The European Journal of Legal History (2021). Here is the abstract.

Law matters, and laws about religion matter a lot. Both the European laws about religious toleration prior to the planting of English America and the laws about religious toleration enacted by the settlers who founded English American colonies for religious reasons employed law primarily as a means of social control. European monarchs wanted power, and they utilized laws about religion to help them acquire it and maintain it. The leaders of the English American colonies planted for religious reasons used law to effectuate their designs: to foster religious toleration in those colonies committed to that animating principle (Maryland, Rhode Island, and Pennsylvania); to try to create an ideal Bible commonwealth for the colonies dedicated to the idea that religion must be practiced as God had ordained (Connecticut and Massachusetts). In short, the settlers of English America were impacted by the European laws about religious toleration that preceded their voyages to the New World. The planters of religiously tolerant colonies tried to learn from what they regarded as Europe’s mistakes, while those who strove for religious purity rejected the prevailing European notion that divine sovereignty must occupy a decidedly secondary place to the sovereignty of the state.

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Heyman on Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause @ChicagoKentLaw

Steven J. Heyman, Chicago-Kent College of Law, Illinois-Institute of Technology, is publishing Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause in volume 23 of the University of Pennsylvania Journal of Constitutional Law.

One of the most intense debates in contemporary America involves conflicts between religious liberty and other key values like civil rights. To shed light on such problems, courts and scholars often look to the historical background of the Free Exercise Clause of the First Amendment. But this inquiry turns out to be no less controversial. In recent years, a growing number of scholars has challenged the traditional account that focuses on the roles of Thomas Jefferson and James Madison in the movement to protect religious liberty in late eighteenth-century America. These scholars emphasize that most of the political energy behind the movement came from Evangelical Christians. On this revisionist account, we should not understand the Free Exercise Clause and corresponding state provisions in terms of the Enlightenment views of Jefferson and Madison, which these scholars characterize as secular, rationalist, and skeptical – if not hostile – toward religion. Instead, those protections were intended to promote religion and especially Christianity. In this Article, I offer a different understanding of the intellectual foundations of the Free Exercise Clause. The most basic view that supported religious liberty was neither secular rationalism nor Christian Evangelicalism but what contemporaries called natural religion. This view held that human beings were capable of using reason to discern the basic principles of religion, including the duties they owed to God and one another. Because religion was founded on reason, individuals had an inalienable natural right to develop their own beliefs and to worship in accord with them. At the same time, that right was limited by the law of nature, which required people to respect the rights of others. In this way, the concept of natural religion established both the foundations and the limits of religious liberty. This view enabled people with different religious and philosophical perspectives to find common ground. It provided the basis for a political coalition between Evangelicals, rationalist Christians, and Enlightenment liberals that secured the adoption of state and federal constitutional guarantees for religious freedom. The Article begins by demonstrating that natural religion and its associated ideas of natural law and natural rights were central to the intellectual world of eighteenth-century Americans. Those ideas played a vital part in many areas of thought, including political and moral philosophy, natural jurisprudence, English law, Christian and Deist theology, and even Newtonian natural science – intellectual strands that came together in the Radical Whig ideology that animated the American Revolution. Next, I explain how those ideas can enhance our understanding of the religious liberty provisions of the first state declarations of rights; the political controversy that culminated in the passage of Jefferson’s Bill for Establishing Religious Freedom in Virginia; and the debates surrounding the adoption of the Federal Constitution and the Free Exercise Clause itself. Finally, I explore the founders’ views on the problem of religious exemptions from civil laws, and discuss the implications of this history for our current debates over civil rights and religious liberty – a subject that the Supreme Court recently grappled with in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and that it has agreed to revisit next Term in Fulton v. City of Philadelphia.

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Magendanz on Church Power, Sovereignty, and Freedom of Religion in Thomas Hobbes

Doug Magendanz, Independent Scholar, has published Church Power, Sovereignty and Freedom of Religion in Thomas Hobbes. Here is the abstract.

This paper examines Thomas Hobbes's critique of Church power and governance. The paper describes the role of publicity - public law and communication - as a key tool Hobbes used to relegate the Catholic Church to a private association.

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Babie on Australian Religious, Legislative, and Judicial Protections for Religious Freedoms

Paul T. Babie, University of Adelaide, School of Law, is publishing Australia in the Encyclopedia of Law and Religion (2016). Here is the abstract.

This chapter, part of the Brill Encyclopedia of Law and Religion, outlines the principle [sic] features of the constitutional, legislative and judicial protection of religious freedom in Australia.

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Bakht and Collins on Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada

Natasha Bakht and Lynda Margaret Collins, both of the University of Ottawa, Common Law Section, have published The Earth is Our Mother: Freedom of Religion and the Preservation of Aboriginal Sacred Sites in Canada as Ottawa Faculty of Law Working Paper No. 2016-24. Here is the abstract.

For centuries, the Canadian state engaged in systematic religious persecution of Aboriginal peoples through legal prohibitions, coercive residential schooling and the dispossession and destruction of sacred sites. Though the Canadian government has abandoned the criminalization of Aboriginal religious practices, and is beginning to come to grips with the devastating legacy of residential schools, it continues to permit the destruction and desecration of Aboriginal sacred sites. Sacred sites play a crucial role in most Aboriginal cosmologies and communities; they are as necessary to Aboriginal religions as human-made places of worship are to other religious traditions. The ongoing case of Ktunaxa Nation v BC represents the first opportunity for the Supreme Court of Canada to consider whether the destruction of an Aboriginal sacred site constitutes a violation of freedom of religion under section 2(a) of the Charter. Building on the ground-breaking work of John Borrows and others, we will argue that Aboriginal spiritual traditions have a home in this provision and merit a level of protection equal to that enjoyed by other faith groups in Canada. In general, section 2(a) will be infringed by non-trivial state (or state-sponsored) interference with an Aboriginal sacred site. Moreover, the approval of commercial or industrial development on an Aboriginal sacred site without consent and compensation will generally be unjustifiable under section 1.

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Weinrib on Freedom of Conscience In Wartime

Laura M. Weinrib, University of Chicago Law School, is publishing Freedom of Conscience in War Time: World War I and the Civil Liberties Path Not Taken in volume 65 of the Emory Law Journal. Here is the abstract.

This Article examines the relationship between expressive freedom and freedom of conscience in the formative years of the modern First Amendment. It focuses on efforts by the American Union Against Militarism and National Civil Liberties Bureau — the organizational precursors to the ACLU — to secure exemptions from military service for conscientious objectors whose opposition to American involvement in the First World War stemmed from socialist or radical labor convictions rather than religious scruples. Although such men asserted secular, ethical objections to war, advocates strained to expand the First Amendment’s free exercise clause to encompass them. Concurrently, they sought to import a generalized theory of freedom of conscience into constitutional constructions of freedom of speech and press, within and outside the courts. The conception of liberty of conscience that they advanced, which they linked to an “Anglo- Saxon tradition” of individual rights, clashed with Progressive understandings of democratic citizenship and failed to gain broad-based traction. Civil liberties advocates consequently reframed their defense of political objectors in terms that emphasized democratic dissent rather than individual autonomy. Sympathetic academics and a few judges embraced this Progressive theory of free speech, which celebrated discursive openness as a prerequisite for democratic legitimacy and justified, rather than cabined, the exercise of state power. Even in the interwar period, however, the proponents of this vision remained deeply ambivalent about the courts and generally hostile to individual rights. Although some accepted a limited role for judicial enforcement of the First Amendment’s speech clause, most declined to endorse a court-centered and constitutional right to exemption from generally applicable laws.

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Muniz-Fraticelli and David on Religious Institutionalism and the Canadian Charter of Rights and Freedoms

Victor M. Muniz-Fraticelli, McGill University Faculty of Law and Department of Political Science, and Lawrence David, McGill University Faculty of Law, are publishing Religious Institutionalism in a Canadian Context in the Osgoode Hall Law Journal. Here is the abstract.

Does freedom of religion protect religious institutions, or does it only protect the individual religious conscience? Canadian jurisprudence after the Charter of Rights and Freedoms takes a decidedly individualist turn, deliberately avoiding the question of the rights of religious institutions. This individualist focus neglects the historical trajectory of religious freedom, the social understanding of religious faith by religious adherents themselves, and the institutional structures in which religion emerges and develops, and through which it is ultimately protected. An institutional account of religious liberty can complement the individualist account, as it better explains the legal order, better reflects actual religious practice, and better preserves both institutional and individual religious liberty. Recent decisions of the Supreme Court of Canada go some way towards correcting this individualist bias, but balk at resolving the legal status of religious institutions. This persistent ambiguity will prove problematic in controversies over religious autonomy already making their way through the courts.

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Christopher Nyinevi on the Influence of Superstition on Ghana's Customary Law

Christopher Nyinevi, Kwame Kkrumah University of Science & Technology Faculty of Law, is publishing Winnowing the Chaff Out of the Grains: The Intermixture of Customary Law and Spiritualism in Ghana in the Commonwealth Law Bulletin no. 3 (September 2015). Here is the abstract.

Belief in the supernatural runs so deep in the cultural lives of Ghanaians that customary law – ‘the rules of law, which by custom are applicable to particular communities in Ghana’ – has not been spared its influence. This article asserts that state sanctioned enforcement of superstition inspired customs violates the fundamental constitutional value of freedom of conscience relative to persons who do not subscribe to such beliefs in the supernatural. But in order to accommodate the twin state interests of preserving customary laws and respecting the freedom of conscience, this article proposes the development of a body of customary laws devoid of superstition. It sets out to discuss why this idea is imperative and how it can be achieved.

The full text is not available from SSRN.

Nicholas Aroney on the Meaning, Persistence, and Importance of the Taking of Public Oaths

Nicholas Aroney, University of Queensland TC Beirne School of Law, has published Faith in Public Office: The Meaning, Persistence and Importance of Oaths. Here is the abstract.

Oaths of office are strangely ubiquitous in liberal-democratic regimes. They bind office-holders to their duties of office, but they do so by invoking divine or religious sanction for the performance of those duties. This divine witness to the oath of office appears to stand in as a guarantor of the political order, but also looms large as an authority that is separate from, and in some sense stands above, the political order. This opens up the possibility that this other sovereign may make moral demands that supersede those of the political order and the duties incumbent upon the office holder. This is the paradox of the oath of office. It both guarantees the performance of official duties and subjects the content of those duties to external judgement. It is a paradox embedded in the very nature of the oath of office, which captures within its short compass the very large question of the relationship between religious conviction, moral principle and political power. Through a study of the use of oaths in our political systems (including their secular adaptation, the affirmation of office), much light can be shed on the nature of faith in public office. Note: An edited version of this paper has been published on the ABC Religion and Ethics website.

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The Islamic Tradition, the Arts, and Freedom of Expression

Eleni Polymenopoulou, Brunel University London, is publishing A Thousand Ways to Kiss the Earth: Artistic Freedom, Cultural Heritage and Islamic Extremism in volume 17 of the Rutgers Journal of Law and Religion (Fall 2015). Here is the abstract.

The paper discusses controversies on freedom of expression and the arts, focusing on Islam and Muslim sensibilities. Drawing from historical examples and the perception of visual arts and music in the Islamic tradition, it attempts to shed light upon incidents such as the Charlie Hebdo attacks and the intentional destruction of cultural heritage by extremists in Mali, Syria and Iraq in the case of global-scale controversies. After examining the concepts of blasphemy (sabb), apostasy (ridda) and idolatry (shirk) in Islamic law, it considers the legitimacy of legal claims related to blasphemous expressions from an international law perspective. The paper distinguishes between violent and non-violent claims and argues that freedom of expression should prevail in all cases involving blasphemy and offences to sensibilities. It also takes the view, however, that this solution is not necessarily a sustainable one. Empowering cultural rights as a whole, rather than seeking to resolve a fictitious conflict between rights, seems to be a more effective pathway to address complex issues involving religious extremism and hate speech.

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Freedom of Speech, Freedom of Religion, and State Regulation of Fortune Telling In the U.S. Since 1945

Christine A. Corcos, Louisiana State University Law Center, has published Seeing it Coming Since 1945: State Bans and Regulations of 'Crafty Sciences' Speech and Activity at 37 T. Jefferson L. Rev. 39 (2014). Here is the abstract.

After the Supreme Court’s decision in United States v. Ballard, Spiritualism’s adherents, like other members of minority belief systems, could qualify for the same First Amendment protections as members of mainstream religions. While Spiritualists could thus celebrate a certain level of victory, they still faced intolerance and outright persecution from some government officials and state legislatures who continued to believe that common Spiritualist practices, which included communication with the dead, divination, and in some cases, faith healing, were simply shams for frauds perpetrated on members of the public who were grieving over the loss of loved ones. In their grief, members of the public sought out Spiritualist practitioners who convinced them that their deceased relatives and friends could speak to them through Spiritualist intervention, and often with the assistance of donations to a Spiritualist church. In many cases, Spiritualist ministers did (and still do) offer assistance in the form of messages from loved ones to assist in guidance for the future.

Some prosecutors and police did not see such messages as legitimate spiritual guidance or genuine prophecy. They still labeled such communications as fortune telling. Under “rogue and vagabond” statutes, a type of disorderly person legislation enacted as early as the 1790s in the United States, fortune telling and like activities were considered fraudulent activity, not religious ministrations. The statutes defined those who carried them out as crafty sciences practitioners or “rogues and vagabonds,” not members of the clergy. However, both the ruling in Ballard and ministerial exemptions that state legislatures carved out of statutes before and after Ballard protected clergy from accusations of fraud. Beginning early in the twentieth century, but in growing numbers after the Second World War, members of minority religions could take advantage of ministerial exemptions to protect themselves from a charge of fraud, even if their activities resembled “crafty sciences practices,” if they could convince the police or the courts that they were clergy and the practices they followed were recognized by their churches. However, crafty sciences practitioners who were not members of minority religions had more difficulty in escaping fraud accusations. Even if they spoke to willing clients, even if they did not request payment for their services (and some did not, although they accepted donations), and whether they performed their services in entertainment venues or in storefronts, they ran the risk that the police might arrest them and prosecutors might bring criminal charges against them. State statutes and local ordinances that banned fortune telling, palmistry, divination, phrenology, or other crafty sciences practices offered no defense because the First Amendment did not protect such speech. Law enforcement and prosecutors tended to bring fewer complaints of outright fraud against Spiritualists after 1945, and shifted their attention to claims of fraud against others who engaged in the same kinds of practices, including fortune tellers, and by extension, palmists, clairvoyants, and astrologers. At the same time, other minority religious practitioners, emboldened by the success of the Spiritualists as well as other non-traditional groups, began to argue that they too should be able to claim the protections of the First Amendment Free Exercise Clause for practices that included divination, prophesy, and other “crafty sciences” if those practices were part of religious rituals. This Article examines those claims and government responses, in the form of bans and regulations such as zoning and licensing, and tests whether these responses are constitutional under the First Amendment.

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Religious Expression and Courtroom Oaths

Frederick B. Jonassen, Barry University School of Law, is publishing 'So Help Me?': Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath in volume 12 of the Cardozo Public Law, Policy and Ethics Journal (Spring 2014). Here is the abstract.

For the purpose of taking an oath, the use of the Christian Bible, which includes both the Old Testament (the Jewish scriptures) and the New Testament (the scriptures relating to Jesus Christ), or the use of the New Testament alone, has been traditional and commonplace in Western culture because Christianity was historically the West's predominant religion. However, as non-Christians were permitted to participate more fully in legal proceedings and to work as government officials, the use of other religious texts or symbols, or the non-use of any religious artifact at all, has become more common. Although it is argued that non-Christians could swear on the Bible as the source of the values that animate the American government, the imposition of the Bible as the only means of taking an oath is unacceptable. Such a rule would be a religious test, specifically prohibited by the Constitution, as well as a violation of the Free Exercise and Establishment Clause.

But aside from this, for many, an oath is a personal commitment to tell the truth or keep a promise, so it is appropriate that the oath-taker not be coerced into professing a religious belief she does not have. For most people, the oath long ago became a perfunctory form of asserting the truth of a statement or promise with little regard for the religious text that supported the truth of the declaration. Nevertheless, the Biblical text that accompanies the oath creates a difficulty for the oath-taker who places no credence in Christianity. The act of swearing upon the religious text conveys the appearance of a personal faith or belief in the religion represented by the text. For the individual who does not believe in Biblical revelation, the deception is hardly consistent with a ceremony meant to represent a commitment to truth telling. Indeed, any commitment to be truthful based on a religious belief that one does not hold would appear to be of little value. In the times that required oaths to be sworn upon the Bible, conscientious non-Christians, as well as Christians with religious objections to oath taking, refused to take an oath on the Christian scriptures, and as a result were effectively excluded from legal procedures or public offices.

This article reviews the history of the struggle to remove the obligation to swear an oath with the Bible or with any religious text or artifact. In view of that history, the article concludes that the freedom to choose from a variety of religious or secular texts is consistent with arguments that favored the adoption of the No Religious Test Clause of the Constitution at the ratifying conventions of the states. However, the acceptance of this freedom of choice and diversity raises issues of jury bias in regard to courtroom oaths and of political manipulation by religious symbols in regard to oaths of office. The article concludes that while religious choice may be appropriate for the oath of office, such choice for the oaths of witnesses and jurors is likely to create difficulties that necessitate the complete removal of religious artifacts and expression from the courtroom oath.

Download the article from SSRN at the link.