I am delighted to pass along the announcement that the 4th edition of Frank S. Ravitch and Larry Catá Backer, Law & Religion: Cases, Materials, and Readings (West Academic, American Casebook Series, 2021). The 4th Edition reflects the substantial changes in jurisprudence and the points of controversy that have occurred since the publication of the 3rd Edition in 2015. In some respects this half a decade has seen the rise of potentially transformed jurisprudence as well as the development in important ways in what had already been noted areas of application ripe for change.
Our Preface provides a nice summary of the materials:
The book covers three general topics: 1) Church/State Law (issues arising under the First Amendment to the United States Constitution and statutes such as the Religious Freedom Restoration Act); 2) Religious Law (the role and substance of law in various religious traditions); and 3) Comparative Law and Religion (the law relating to religious freedom in other countries). Most books in this field have little or no material on the latter two topics. The bulk of this book is devoted to First Amendment Law, but the book also provides an overview of Jewish Law (Halakha), Islamic Law (Shari’ah), Buddhist conceptions of law, Catholic Canon Law, Protestant conceptions of law, and Hindu law as well as significant background on comparative Law and Religion. The discussion of First Amendment law integrates cases, questions and narrative to provide an in-depth understanding of the Religion Clauses of the United States Constitution.
As the preface suggests, the materials are divided into two parts. The first and core part of the materials focus on a detailed consideration of the distinctive jurisprudence of religious liberty within the constitutional system of the United States (with respect to which Frank did a superlative job of organizing complex materials in an accessible form). I took the laboring oar on the comparative, foreign, and international materials. To give the comparative element of the materials a little more context, the text is organized initially around the issue of the regulation of the wearing of religious clothing.in public. In the study of religious systems, the focus is on the way in which religious and secular law collide and might be either ordered or aligned within the U.S. system and under the framework of the European Convention for Human Rights.
The materials are useful as a resource and were developed for use in advanced law and graduate classes. We are happy to discuss the book with anyone who might be interested in adopting the text anyone else with an interest in the materials.
The Introduction to Part I (The U.S. Religion Clauses of the Federal Constitution and its jurisprudence) and Part II (The "law" of religion, national, regional, and international legal regimes for the protection of religious liberties outside the US.) follows below.
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A. The Religion Clauses: An Overview
The First Amendment to the United States Constitution reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The two Religion Clauses contained in the First Amendment are commonly referred to as the Establishment Clause and the Free Exercise Clause, respectively. The only other mention of religion in the United States Constitution is the prohibition against religious tests “as a qualification to any office or public trust under the United States,” which is contained in Article VI. As you will see, much attention has been paid to the Religion Clauses of the First Amendment, particularly since the early part of the Twentieth Century. The next six chapters of this book are devoted primarily to understanding the Establishment Clause and the Free Exercise Clause.
Both the Free Exercise Clause and the Establishment Clause have been incorporated through the Fourteenth Amendment, and thus are binding on state and local governments as well as the federal government. See Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (incorporation of the Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (incorporation of the Free Exercise Clause). Prior to incorporation the religion clauses only applied to the federal government. Therefore, it should come as no surprise that the number of Religion Clause cases increased dramatically after incorporation; although there are demographic and social reasons for the increase as well.
The relationship between the two clauses, and between each and the Free Speech Clause also contained in the First Amendment, is a complex one. The role of the Free Speech Clause, especially in relation to Establishment Clause issues, will be discussed in later chapters. Yet, even at this early juncture in your studies it is essential to point out the potential tension between the two religion clauses. You will have an opportunity in later chapters to decide for yourself whether the tension between the two clauses is real or imagined, significant or insignificant. For now, it is important to note that when government seeks to avoid an establishment of religion by altering its relations with private citizens and entities the Free Exercise Clause could potentially be implicated. Similarly, when government seeks to accommodate the exercise of religion the Establishment Clause could potentially be implicated. This will become clearer as you learn the various approaches to issues that arise under the religion clauses.
The tension between the two clauses may be, in part, the result of the principles that are said to undergird the clauses. Principles such as separation of church and state and accommodation of religion can coexist in some contexts, but this is not always so. Moreover, the nature of the two clauses may be different in ways that will become clear as you learn about each clause. For now, it is useful to note that the Establishment Clause generally focuses upon the government’s relationship to religion, and some have argued it does not address individual rights in the same way that the Free Exercise or Free Speech Clauses do. The Free Exercise Clause focuses upon an individual’s right to practice her religion free from unconstitutional government interference and on prohibiting government action that discriminates against religion.
B. Organization of this Section
This section begins with a discussion of the Establishment Clause. The discussion will be broken into four chapters. Chapter One will provide a discussion of the early development of the Establishment Clause from Everson v. Bd. of Education to the 1960’s. As will be seen this material is not just a matter of historical curiosity as it continues to effect analysis of Establishment Clause issues. Chapter Two will focus on public religious exercises and expression. This discussion will include public school prayer, public school curricular decisions, ceremonial deism, and legislative prayer. Chapter Three will focus on public displays, religious symbolism, and access to government owned facilities. Issues such as holiday displays and the display of other religious symbols such as the Ten Commandments will be addressed in this chapter. Moreover, the chapter will explore the distinction between government sponsored displays and privately sponsored displays on government property that has been opened for expressive activity. Chapter Four will focus on aid to religiously affiliated institutions. This chapter will address issues such as financial and other support for religious schools, school vouchers, tax exemptions for religious institutions, financial support for religiously affiliated institutions, access by religious groups to various types of public funding, and charitable choice.
Following the discussion of the Establishment Clause will be an analysis of the Free Exercise Clause. That discussion will be broken into three chapters. Chapter Five will address the historical evolution of Free Exercise Clause doctrine, the doctrine applicable to Free Exercise Clause “exemption” cases and the response to that doctrine, and cases involving allegations of discrimination by government entities under the Free Exercise Clause. Moreover, Chapter Five will address legislative measures, such as the Religious Freedom Restoration Act (RFRA). Chapter Six will address issues of church autonomy, such as the “ministerial exception,” church property disputes, schisms, and Clergy abuse. These issues can implicate both the Free Exercise Clause and the Establishment Clause, but they also raise questions under state property law, tort law, etc. Chapter Six will be followed by Section Two, where the focus will shift to the role of law in various religious systems, and the ways in which other countries address religious freedom issues.
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A. The PROTECTION OF REIGIOUS LIBERTIES BEYOND THE UNITED STATES: An Overview
In Part I of these materials, students were introduced to the contemporary U.S. approach to a secular protection of religious liberties within the U,. federal constitutional ordering, and the extent to which that ordering shapes the relationship between the state and its people. From two simple constitutional constraints expressed as an “Establishment” and a “Free Exercise” Clause, the American polity, through its legislatures and courts, have developed a legal expression of societal understandings of the relationship between society, state, law and religion, the scope of their obligations of mutual respect, and the dynamic nature of these relations expressed through law.
The American constitutional tradition of the protection of religious liberty is in many respects unique. That uniqueness, however, can be best appreciated when its approaches and the underlying principles that propel the American conversation about religion’s role in the polity are contrasted to those that have been developing outside of the United States. Some of these systems of protection for religious liberty have their origins, like that of the United States in the late 18th century and the convulsions of revolution. Others, especially have a far longer historical development, but one which has been affected by contact and engagement with the normative conversations about religion and religious liberty in the West. Like the American conversation, that of other states, can trace their origins back to the earliest expressions of a culture to which all of these systems are heir. And like the American system, contemporary systems for the protection of religious liberty were shaped quite significantly by the experiences of conflict that occupied a large portion of the twentieth century.
At the same time, it is important to have in mind that religion itself is not necessarily or always little more then a moral, theological and belief system, but that its core beliefs and practices can also constitute a system of law or rules that in many respects align with the forms and practices of secular law.[1] It is then important for students of legal systems for the protections of religious liberty to have a working knowledge not just as of secular legal systems within which these principles are given expression as public law, but also of the systems of religious law which exist in a dynamic relationship with the public law of national constitutional orders. The relationships between these two forms of legal systems are as important for the understanding of the construction of framework systems for the protection of religious liberty and the integrity of the state and societal order, as is the role of both in the protection of the religious beliefs and practices of individuals who simultaneously occupy roles within faith, societal, and political communities.
The reminder that many significantly influential religions are not merely the object of the expression of individual belief and practice but also legal systems in their own right, has conseqeunces for the development of a secular legal order sensitive to religious rights. An important consequence follows from the inherently polycentric nature of the protection of religion and religious liberty within the constitutional traditions of secular states precisely in those contexts in which the secular order must engage with a religious legal ordering. The concept of polycentric, and polycentricity generally, becomes central to the analysis of sysems of religious liberties. In this section the term polycentric systems is defined as the governance of a particular objective, activity, collective, or individual that is the aggregate product of the simultaneous (and sometimes aligned) and autonomous rule structures of multiple centers of decision making.[2] This abstracton can be reduced to its simplest terms this way: where, for example, religious liberties are understood as points of alignment for individuals to conform to the “legal” or normative systems of both their secular and religious communities (e.g., the secular prohibition of alcohol and the need for wine in the rituals of Jewsih and Catholic faith communities). That alignment can be achieved by waivers from obligations to conform to secular law as well as by interpretations of religious obligation to make conformity to law easier to achieve.
In its more complex forms, jurisdiction over certain matters (for example family law in many cases) may be delegated to religious institutions (including religious courts) with the state retaining authority to adjudicate jurisdictional scope. And in other cases there is a blending that aligns multiple (polycentric) systems within one legal framework. For example, the Constitution of Afghanistan blends secular and religious jurisprudence in the constitutional principles of interpretation, including the interpretation of the provisions protecting the religious liberties of individuals and communities.[3]
The challenges of polycentricity also have strong application to the framing of secular legal structures for the protection of religious liberties in many jurisdictions outside of the United States. Most states, for example, base their legal framework for the protection of religious liberty on their constitutional document and the constitutional traditions that it reflects. For many states, however, these constitutional traditions only the baseline legal architecture for the protection of religious liberty (and the constraint on state power). These states are also parties to regional human rights systems and may be parties to international covenants , each of which may include substantial and autonomous protections of religious liberties.
This is particularly the case for states that are parties to regional human rights systems in which a regional court of human rights has been vested with authority to interpret the collective principles for the protection of religious liberties and to judge whether that interpretation is compatible with challenged actions by states. In some cases, for example, with respect to the religious liberties protections afforded under the European Convention for Human Rights,[4] the European Court of Human Rights has developed a jurisprudence that has become quite influential and from which states do not lightly deviate their own national practices. That jurisprudence, in turn, must be aligned (or at least interact) with the religious liberty jurisprudence of the European Court of Justice, the highest tribunal of the European Union, in interpreting the European Charter of Fundamental Rights.[5] In addition, states that are parties to both European Human Rights Convention and the European Charter, are also parties to the International Covenant for Civil and Political Rights,[6] the provisions on religious liberties of which must also be respected--and aligned.
France, for instance, must therefore simultaneously coordinate its constitutional traditions and principles with the jurisprudence of the European Court of Human Rights, the European Court of Justice and the U.N. Human Rights Committee in matters of religious liberties. The nature of those simultaneous obligations, their enforceability, and their legal effect on French constitutional traditions and governmental policy becomes a complex conversation of coordination, alignment, and resistance that constitutes the higher law of religious liberties among and within those states. A close examination of these multiple approaches will enhance a student’s understanding of both the uniqueness and the operation of the constitutional system for the protection of the human right to religious liberties in the United States.
B. Organization of this Section
This section consists of two chapters. Chapter 7 begins with a discussion of the religious traditions of five of the principal faith communities within the United States: Judaism, Islam, Buddhism, Hinduism, and Christianity. Each of these religious traditions are rich but also quite heterogenous, giving rise to a variety of sects within their respective faith traditions. Though the chapter focus on these religious traditions, students ought not to lose sight of the reality that the United States is now home to a large number of other faith communities reflecting both new and indigenous religious and religious traditions brought by immigrant communities from all over the world. Some of these also intersect with the challenges of colonialism, of slavery, and of inter-ethnic relations that are also a significant concern for constitutional law in the United States.
With that in mind, Chapter 7 is shaped by two quite specific objectives. The first is to introduce students to the nature and outlook of these collectives as faith communities. To that end it is necessary to consider to some extent theology, cosmology, and epistemology (in the sense of the way that religious beliefs mold the way in which its practitioners see and understand the world around them). Put simply, this objective has as its goal to introduce students to the relationship between belief and the manifestation of belief in everyday life, as well as in ritual. The second is to introduce to these major religious traditions as sources and systems of law--understood in this context as ranging from formal law systems that mimic secular legal codes, to systems of norms and principles that guide belief and the manifestation of belief in ritual and everyday activities.
Chapter 7 has an additional objective. Having broadly fleshed out the belief and practice systems as faith communities, it them considers how those faith communities as autonomous and normatively distinct governance systems interact formally and informally with the secular legal systems within which they are embedded. The focus is primarily on the United States. Some reference, however, is made to the alignment of religious and secular law systems elsewhere. The object here is to introduce the student to the dynamic and sometimes ambiguous ways in which secular and religious legal systems learn to “live together” even as they seek to retain their respective autonomy.
Chapter 8, which follows, shifts the focus to the ways in which other countries address religious freedom issues. It is a long chapter that might usefully be divided into three broad sections.
The first part of Chapter 8 seeks to distill the fundamental differences in approach to the constitutional protections of religious liberties between the United States and other states by focusing on one specific issue--the regulation of religious clothing, particularly head coverings for men and (especially) women. The student will follow the issue from the baseline approach of U.S. courts to the consideration of the way that national legislatures seek to use law to regulate these practices, and the way that national courts of Europe and the Middle East apply their constitutional traditions to resolve challenges to these rules. In the process, the student will be introduced to the way that national constitutional traditions are mediated by and through international law and transnational judiciaries and Committees in interpreting the limits of national authority respecting the regulation of head coverings. The specific focus will be on the European Convention on Human Rights and the European Court of Human Rights system. Some consideration will also be given to the role of the U.N. Human Rights Committee and the application of the International Covenant for Civil and Political Rights. This consideration will be amplified by explanatory material that suggests the structures and functions of law in particular national context, and by doing so, suggests the diversity of approaches applied in contemporary law. In all cases the student is encouraged to consider these systems in contrast to that of the United States.
The remainder of Chapter 8 then briefly builds on this example to provide more formal context to the study of the way in which law and religion interact outside the United States. Part C focuses on national approaches to the development of structures of religious freedom within the legal-constitutional architecture of a state. Part D, considers the extent, still quite limited in its mandatory effects, to which the issue of freedom of religion has, become a matter of international law and norms. Part E then focuses on the development of comprehensive rule systems and jurisprudence relating to issues of freedom of religion within regional human rights courts organized to interpret regional human rights charters and conventions..
[1] Discussed in Larry Catá Backer, Religion as Object and the Grammar of Law, 81 Marquette L. Rev. 229 (1998).
[2] Well described in Elinor Ostrom, Understanding Institutional Diversity (Princeton: Princeton University Press, 2005).
[3] Article 130 of the Constitution of the Islamic Republic of Afghanistan (ratified 26 January 2004),provides: “In cases under consideration, the courts shall apply provisions of this Constitution as well as other laws. If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.” Ibid. (unofficial English translation).
[4] Formally, the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols Nos. 11 and 14 supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13 and 16 (4 November 1950, entered into force 3 September 1953, as amended). States that are members of the Council of Europe are also party to the European Human Rights Convention; new member states are also expected to become member states. The Council of Europe was founded after the end of the Second World War and includes forty seven members, virtually all states on the European continent.
[5] Formally, the Charter of Fundamental Rights of the European Union 2012/C 326/02 (26 October 2012).
[6] International Covenant on Civil and Political Rights (opened for signature 16 December 1966) 999 U.N.T.S 171 , 6 I.L.M. 368.
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