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Balaniyot, Baths and Beyond

Israel’s State-Run Ritual Baths and the Rights of Women

Nahshon Perez and Elisheva Rosman-Stollman

Ritual immersion in Israel has become a major point of contention between Israeli-Jewish women and the state-funded Chief Rabbinate of Israel. In order to conduct a religious household, Orthodox Jewish women are required to immerse in a ritual bath (mikveh) approximately once a month. However, in Israel, these are strictly regulated and managed by the Chief Rabbinate, which habitually interferes with women’s autonomy when immersing. The article presents the case, then moves to discuss two models of religion-state relations: privatization and evenhandedness (roughly the modern version of nonpreferentialism), as two democratic models that can be adopted by the state in order to properly manage religious services, ritual baths included. The discussion also delineates the general lessons that can be learned from this contextual exploration, pointing to the advantages of the privatization model, and to the complexities involved in any evenhanded approach beyond the specific case at hand.

Mikhail Antonov

This paper analyzes the cultural constraints imposed in the Russian legal system by the prevailing social philosophy, which is characterized by a significant degree of religious conservatism and communitarianism. This conservatism is predictably opposed to sexual minorities and to those who want to defend or justify them. The author concludes that this philosophy strongly affects decision-making in Russian courts, and can sometimes overrule the provisions of the Russian Constitution and the laws that formally grant protection to sexual minorities. In turn, this conservative social philosophy and communitarian morality are based on religious patterns that are still shaping the mindsets and attitudes of Russians. These attitudes cannot be ignored by judges and other actors in the Russian legal system, who to some extent are subject to the general perception of what is just, acceptable, and reasonable in society, and are factually bound by this perception.

Anicée Van Engeland

According to some interpretations of Islam supported by gender activists, the veil can be perceived as a passport that enables women to participate in public affairs. This argument has been overlooked by the courts, including the European Court of Human Rights. The latter has adopted a discourse that considers the veil to be a threat to public order and gender equality, and more recently, an obstacle to social cohesion. By doing so, the Court has excluded veiled European Muslim women from the public sphere. The Court has justified curbing freedom of religion by granting states a wide margin of appreciation on the basis of the concept of “living together.” I argue that the Court needs to take the “passport veil” into account to be consistent with its argument on living together. A shift of approach and discourse would constitute a new way of understanding integration through the veil.

Honest Scales

Challenging Structural Discrimination in Alberta v. Hutterite Brethren of Wilson Colony

William Kenny

The decision in Alberta and Hutterite Brethren of Wilson Colony refocused attention on the role played by the final limb of the Oakes test when considering the proportionality of the limitation of a Charter right. This article seeks to re-examine this decision and challenge the structural discrimination it created by requiring minorities whose belief gives a religious value to a facially utilitarian practice which may not be apparent when considered from a secular perspective. In particular it examines the potential benefits of allowing a liberal perspective of group rights to inform the weight courts’ give to the detriment faced by a community and argues that this revised approach to balancing would result in outcomes more reflective of the values codified in the Charter.

The Legal Status of Religious Groups in Argentina

Toward a Multi-Confessional System

Fernando Arlettaz

The Argentinian Constitution of 1853 established a religious policy based on two main principles: freedom of religion and the privileged status of the Catholic Church. In 1966, an agreement with the Catholic Church eliminated the power of the government to interfere in ecclesiastical matters, but maintained the privileged status of Catholicism. Today, the religious configuration of Argentinian society differs greatly from that of the 19th century. Amidst increasing religious diversity, some legal changes point to the transformation of the Argentinian regime from a nearly confessional state into a multi-confessional, yet not an egalitarian one.

Jeroen Temperman

Article 20(2) of the un’s International Covenant on Civil and Political Rights (iccpr) is an odd human rights clause. It provides that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Accordingly, this provision does not appear to codify a fundamental right but rather a sui generis state obligation. The present article aims at providing a legal taxonomy of this international incitement clause, ultimately also answering the question as to whether, despite its unique formulation as speech prohibition, it contains a justiciable right to protection from incitement.

Zachary R. Calo

This article compares the law and religion jurisprudence of the us Supreme Court and the European Court of Human Rights across three legal areas: religious symbols and religion-state relations, individual religious freedom, and institutional religious freedom or freedom of the church. Particular focus is given to the manner in which this jurisprudence reveals the underlying structure and meaning of the secular. Although there continues to be significant jurisprudential diversity between these two courts and across these legal areas, there is also emerging a shared accounting of religion, secularity, and moral order in the late modern West.

Legalities Unbound?

Assessing the Role of Religion and Legal Pluralism at Four un Human Rights Committees

Helge Årsheim

International human rights law (ihrl) has traditionally enjoyed an uneasy relationship with customary, religious, and indigenous forms of law. International courts and tribunals have considered these non-state forms of law to represent both structural and material challenges to the implementation of human rights norms at the domestic level. Over the course of the last decades, however, the theory and practice of human rights has increasingly started recognizing and accommodating multiple legal orders. This article traces the gradually increasing accommodation of legal pluralism in ihrl in the monitoring practice of four un human rights committees over a period of 20 years, looking in particular at the increasing recognition of religious forms of legality across the committees.

Regulating Religion in Italy

Constitution Does (not) Matter

Pietro Faraguna

This article focuses on state-church relations and on the peculiar implementation of the “idea of secularism” in Italy. First, it explores the formal provisions of the 1848 Constitution. Next, it investigates constitutional provisions that came into force in 1948. Finally, it examines how the actors of the living constitution (legislators, the government, judges, and the Constitutional Court in particular) tried to balance and develop the potentially conflicting principles included in the 1948 Constitution in the area of religious freedom, equality, and state-church relations. The article explores three particularly controversial examples: the teaching of religion in state schools; the display of the crucifix in classrooms; and state funding mechanisms of religious denominations. The main claim of the article is that, with regard to the regulation of religion in Italy, the transformation of the constitutional position of religion did not occur within the formal constitution, but in the “living constitution.”

Arif A. Jamal and Jaclyn L. Neo

This essay introduces the Special Issue of the Journal. It discusses how changing religious demographics and heightened religious plurality are challenging existing thinking about, and patterns of, state-religion relations and the nature of the ‘secular state’. The essay briefly surveys each of the papers in the Special Issue and highlights that one of the key lessons that emerges from the papers is the importance of context. As the contexts evolve, fresh thinking and new arrangements would be needed.