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| Pix credit here (apologies pix of 4th edition, the 5th will have the same cover) |
My friend and colleague Frank Ravitch (Professor of Law & Walter H. Stowers Chair of Law and Religion, Director Kyoto Japan Program) and I are putting the finishing touches on the 5th edition of our book--Law & Religion: Cases and Materials (West Academic; ISBN: 979-8-31770-113-0), which should be available ion early August 2026.
It is, indeed a quite interesting time, for matters of law and religion. That interest is not confined to the United States, where the arc of jurisprudence development that spanned almost a century and was thought by some to be inevitable and permanent is proving to be neither--to the chagrin of those heavily invested (normatively and otherwise) and who, like their colleagues who been in this position since at least 1947, have rallied around the principles and cognitive frameworks of the old jurisprudence to save what they can and to prepare the way not just for its triumphant return but for its further elaboration . . . eventually. For now they now increasingly serve as dissenting voices to what is emerging. But this is not merely a unique "American problem." The jurisprudence is being reshaped in Europe, Africa, Latin America and other places as they confront the challenges of readjusting jurisprudence to fit within the emerging realities of their respective demographics and political choices. And both theocracy and atheism remain, as ever, a globally viable force.
For the student, challenges may have three dimensions. The first is to study the peculiarities (norms and jurisprudential trajectories) of their domestic legal-constitutional order. The second is to situate that jurisprudence within the larger discussions of the relationship of law and religion in other states. And the third is to try top grasp the way that the issue has escaped out from its traditional state-legal borders to become an issue of internal law and norm making.
The materials are divided with that in mind. Frank Ravitch has taken the laboring oar on the U.S. domestic legal ordering of law and religion. The books first 6 chapters are devoted to the study of the U.S: constitutional ordering of the usually fragile and changeable relationship between the State and its many religions. I have taken on the international aspects viewed through the lens of the developments in the U.S., as is appropriate for or our U.S. based students. I start easy--Chapter 7 focuses on religion as systems of norms and rules, as legal-moral systems with their own institutions, and jurisprudence, both of which vary widely and considers some of the ways in which those religious-institutional-legal systems interact with public law. Chapter 8 is devoted to constructing the analytical comparative framework through a deeper dive into one area of law and religion--the right to wear or display religious apparel. Chapter 9 then considers law and religion more broadly outside the US. and introduces students to international law and norm making, with a focus on the work of the regional human rights courts in Africa, Latin America and Europe.
I have included the Summary Table of contents and the (almost final) Introduction to Part 2 of the Book.
—————
Part 1. Religion in the U.S. Legal System
A.... The Religion Clauses: An Overview
B.... Organization of This Part
Chapter 1. The Early Development of Establishment Clause Doctrine
A.... Everson and the “High and Impregnable Wall” (with a Gate for Buses)
B.... Early Attempts to Apply the Principle of Separation: McCollum and Zorach
C.... Other Early “Aid” Cases: Walz and Allen
D.... Reinforcing the Wall? The Early School Prayer Cases
E.... What Can History Tell Us About the Establishment Clause?
Chapter 2. Public Religious Exercises
A.... Organized “Religious” Exercises in the Public Schools
Chapter 3. Public Displays, Public Forums, and Equal Access
B.... Religious Symbolism and Public Displays
C.... Government Religious Speech on Public Property
D.... Privately Sponsored Displays on Government Property
E.... Transfer or Sale of Government Property Containing a Religious Display to Private Owners
F.... Access to Government Facilities and Programs
G.... Exclusion of a Religious Group from a Limited Public Forum Because the Group Violates School Antidiscrimination Policies
Chapter 4. Government Aid to Religion or Religious Institutions
B.... The Lemon Test: From Lemon to Agostini
C.... The Move to Formal Neutrality
D.... Must Government Fund Religious Pursuits if It Creates a General Funding Program?
Chapter 5. The Free Exercise Clause
B.... Free Exercise Clause Exemptions: The Early Cases—from Reynolds to Braunfeld
C.... Free Exercise Clause Exemptions and the Compelling Interest Test
D.... The Retreat from the Compelling Interest Test
E.... Laws of General Applicability and the Retreat from the Compelling Interest Test
F.... Limiting the Impact of Employment Division v. Smith
G.... Intentional Discrimination and Free Exercise Rights
H.... Expansion of the Discrimination Concept Under the Free Exercise Clause
I..... The Religious Freedom Restoration Act (RFRA)
Chapter 6. Religious Institutions and Autonomy; Clergy Abuse; Standing
B.... Religious Institutions and Property Disputes
D.... Church Liability in Clergy Abuse Cases
E.... The Ministerial Exception
F.... Standing in Cases Under the Religion Clauses
Part 2. Religious Law
and Religious Liberty in National, Regional, and International
Legal Systems Beyond the U.S.
A.... The Protection of Religious Liberties Beyond the United States: An Overview
B.... Organization of This Part
Chapter 7. The Role of Law in Religious Traditions
Chapter 8. The Interplay of Law and Religion Beyond the United States
B.... The Regulation of Religiously Motivated Head and Face Coverings—a Comparative Case Study
C.... Other National Approaches to the Relationship Between Law and Religion
Chapter 9. The Emerging International and Regional Framework in Law and Religion
B.... Treaties and Declarations
C.... Building on International Law and Norms
D.... Regional Human Rights Conventions in Law and Religion
■ ■ ■
A. The Protection of Religious Liberties Beyond the United States: An Overview
In Part 1 of these materials, students were introduced to the contemporary U.S. approach to a secular protection of religious liberties within the U.S. 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.
This Part 2 starts from the premise that the American constitutional tradition of the protection of religious liberty is in many respects unique. The objective of this Part 2, then, is to consider those elements that make the U.S. approach by considering its approaches and its underlying principles that propel the American conversation about religion’s role in the polity against those approaches and principles that have been developing outside of the United States. Some of these constitutional 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 primarily in Europe. Other national and constitutional systems of religious liberty have a far longer historical development. Outside of the United States and especially since 1945, these engagements with principles of religious liberties have been increasingly shaped by the development of transnational, regional, and international norms and laws. These developments have not erased contextually significant practices and norms that pre-date modern frameworks. 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 can align their future to efforts to attain global or regional consensus about values and practices. And like the American system, contemporary systems for the protection of religious liberty were shaped quite significantly by the experiences of war and conflict that took place over the course of much of the 20th century.
At the same time, it is important to have in mind that religion itself is not necessarily or always little more than 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 consequences for the development of a secular legal order sensitive to religious rights. It also has consequences for the way States, whether within a liberal democratic, Marxcist-Leninist, or from one of the varied traditions in the Global South, develop theories and principles about the (inter)relationship of religious and political authority, and about the ways that those principles and theories, when reduced to law, are applied in practice. That is no easy task. It is also one that suggests substantial variation.
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 systems 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 abstraction 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 Jewish 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 Part
This part consists of three 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 then shifts the focus to the ways in which other countries address religious freedom issues. It also considers ther issues of law and religion more broadly within non-U.S. political communities through the lens of their rules and law based orders. 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. Students 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, students 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 in contemporary legal approaches to religious liberty. In all cases the student is encouraged to consider these systems and approaches in contrast to those of the United States.
The remainder of Chapter 8 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 and Europe. The relationship between the state and religion in Marxist Leninist states is also considered with a focus on China. This section also introduces students to the role of religion in the establishment of the constitutional orders of states. While the theoretical similarities with the U.S. are substantial, the gap between the way those theories are a`pplied in these jurisdictions, compared to the U.S., may be widening.
Chapter 9 shifts the focus of study from national law to the development of principles and rules touching on religious liberties under international law and within regional human rights systems. Considered here are more general issues of the development of transnational consensus norms, institutions, and remedial structures and their effects on the development of national law. Section A 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. It identifies and considers the construction of a network of international instruments that touch on religious freedom and their influence in developing national approaches. Section B then focuses on the development of comprehensive rule systems and jurisprudence relating to issues of freedom of religion within regional human rights systems. In that context it considers the role of regional human rights courts organized to interpret regional human rights charters and conventions and the scope and character of their jurisprudence. This consideration closes the loop begun in Chapter 7 where the authority of regional human rights courts in the development of national legal orders was considered through the issue of religious clothing.
[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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