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Abstract

Religious communities and churches have traditionally been significant sources of employment. Many European countries have found ways to integrate into their legal systems particularities of religious employment that are alien to other areas of labor law. Until recently, constitutional courts have been reluctant to question the right of churches to define the occupational requirements of their secular employees, but the recognition of church autonomy in religious employment has not been straightforward in the European Court of Human Rights and the Court of Justice of the European Union.

This paper provides some reflections on where Europe may be headed in this field, and whether well-tested principles, such as denominational neutrality, may offer some insight on how to address the still unresolved conflict between important human rights: freedom of religion and the right to autonomy of religious employers, and the individual fundamental freedoms of their employees.

In: Journal of Law, Religion and State
Free access
In: Journal of Law, Religion and State
In: Journal of Law, Religion and State

Universities that are incorporated under a secular charter face a number of challenges in claiming religious exemptions or religious character. These secularly chartered but religiously motivated universities (SCbRMU) often are attempting to get the best of both worlds, by maintaining entitlement to government funding that is exclusive to secular entities while also claiming religious protections. In this paper, Yeshiva University (yu) is used as a case study of the difficulties faced by these institutions. yu has been sued by a group of students and alumni for refusing to authorize an official lgbt club, and yu has argued that it is entitled to a religious exemption from New York City anti-discrimination laws. This paper discusses the history of yu and its relationship with lgbt rights, as well as relevant case law concerning religious education, discrimination on the basis of sexual orientation, and religious exemptions. The paper concludes with a discussion of the legal options a SCbRMU has when faced with these issues, including shedding part of its identity (either the religious or the secular), maintaining the status quo, and defiance. Ultimately, none of the options are ideal for such an institution, and the nature of the conflict for yu, when discrimination against funding religious institutions leads to the financial need for a secular charter, and the school’s secular status then leads to difficulty receiving a religious exemption from anti-discrimination laws, show that society is not tolerant of ambiguity in this scenario, and institutions are better served if they avoid these contradictions.

In: Journal of Law, Religion and State

Abstract

The question of the relation between wrongful discrimination and the freedom of conscience and religion has been the subject of many debates over the past decade and has occupied both courts and the public. The most well-known legal case in that regard is likely Masterpiece Cakeshop, in which a Colorado bakery owner refused to bake a wedding cake for a homosexual couple and was sued for violating the State’s Anti-Discrimination law. Recently, the Supreme Court of the U.S has agreed to hear yet another Colorado case, 303 Creative llc v. Elenis, in which a website designer wanted to post a message saying she will not design websites for same-sex weddings.

The purpose of our article is to point to a significant distinction between a refusal to serve clients on the basis of their race, gender, sexual orientation, etc., and a refusal to serve them because such service requires the providers to engage in activities or projects to which they deeply oppose. We think the latter case, sometimes, might not at all be discrimination. Importantly, we distinguish between a deep objection to the content of the service or product requested and a rejection of the client because of her characteristics.

How can a supplier prove that his or her refusal to serve a client belonging to a “protected class” is based on the content of the product or service requested and not on the client’s characteristics? We formulate a two-prong test that courts in the US and UK have implicitly adopted. We ask, first, whether the supplier would refuse the same service to a client not belonging to the protected class, and second, whether the supplier would serve the same client (belonging to a protected class) with other products and services. If the answer to both questions is positive, then the supplier’s refusal is not wrongful discrimination because it shows an objection to the product or service requested and not a rejection of the client. In practice, this test is not always easy to apply. We therefore developed an epistemological model to substantiate the conditions that may help providers persuade the courts that their refusal to serve a client stems from the content of the request, not from the client’s identity.

In: Journal of Law, Religion and State

Abstract

State courts of civil law and common law jurisdictions alike are used to applying the rules of direct and indirect tort liability to Christian churches in different ways and with different results. But recent court decisions have put the issue of the civil liability of religious groups for acts of sex abuse by clergy in a different context, that of Islam. A common denominator in the reasoning of courts worldwide is the relevance of religious authority – authority to appoint and supervise clergy or authority vested in clergy – as an important factor in the attribution of civil liability. But Islam is a religion whose organizational structure and ministers are simply too different from those of the various Christian churches, so that state courts run the risk of wrongly applying to Islamic communities and Muslim entities the same categories and legal principles they usually apply in other, more common, cases of sex abuse.

In: Journal of Law, Religion and State
Free access
In: Journal of Law, Religion and State

Abstract

Article 9 of the European Convention on Human Rights protects the right to freedom of religion and conscience. The language of Article 9(1) has been interpreted by the European Court of Human Rights as including protections for acts of proselytism, when properly committed and respectful of the rights and freedoms of others. This was the view taken in the foundational Article 9 case of the Court, Kokkinakis v. Greece. In the decades since Kokkinakis, however, the view of the Court on proselytism appears to have shifted, in particular in Article 9 cases involving religious garments. This article seeks to determine whether the Court is consistent in its views on proselytism between these religious garment cases and earlier examples of Article 9 case law.

In: Journal of Law, Religion and State

Abstract

Legal regulation of religious conversion has become one of the central human rights issues worldwide. Numerous countries, especially in South Asia, have enacted laws that prohibit proselytizating on the grounds of force, allurement, and misrepresentation. Critics have consistently relied on freedom of religion to oppose these laws, but courts in these jurisdictions have upheld them on the very grounds of religious freedom. The present Article explains the historical and ideological bases of this counterintuitive approach to religious freedom by focusing on the case of India. It argues that this approach is based on a historically evolving conception of religion associated with modern Hinduism, according to which all religions have an equal claim to spiritual truth. This precept of religious equality has come to constitute the political and judicial approach to religious freedom and religious conversion laws. The Article uses this interpretive insight to renew the normative critique of such laws.

In: Journal of Law, Religion and State

Abstract

This article defends an analytical framework based on systems theory, reflexive law, and Teubner’s regulatory trilemma. J v B exemplifies the numerous overlapping social relations, and forms a case study on the relationship between the State, community, and minority religious individuals, and on how this relationship can break down from the systems theoretical perspective. The article uses this case as a testing ground for a modified systems theoretical approach, treating this conflict between family law and religion as a regulatory problem. Although it centers on English family law, the article should be read as a piece of normative legal theory of general application. In the final section, it explores reflexive secularity and how this may apply in cases where law and religion interact, such as J v B.

In: Journal of Law, Religion and State