COMPARATIVE CONSTITUTIONAL INTERPRETATION OF RELIGIOUS FREEDOM

2020 ◽  
Vol 69 (3) ◽  
pp. 611-651 ◽  
Author(s):  
Stijn Smet
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Case Law ◽  
The United States ◽  
Constitutional Interpretation ◽  
Constitutional Courts

AbstractWhen adjudicating religious disputes, constitutional courts often resort to a particular discursive register. The notions ‘tolerance’ and ‘respect’ are an integral part of this religion-specific constitutional register. But what do judges mean when they deploy the language of tolerance and respect? And what substantive role, if any, do both notions play in the constitutional interpretation of religious freedom? This article seeks to answer these conceptual and substantive questions by comparing constitutional case law on religious freedom from India, Israel and the United States. It also provides linkages to ongoing processes of (alleged) constitutional retrogression in the three jurisdictions.

Thinking About Scots Law

1996 ◽  
Vol 1 (1) ◽  
pp. 3-24 ◽  
Author(s):  
Alan Rodger
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
British Empire ◽  
United States Of America ◽  
Case Law ◽  
The United States ◽  
Memorial Lecture ◽  
University Of Edinburgh ◽  
The University

This article is the revised text of the first W A Wilson Memorial Lecture, given in the Playfair Library, Old College, in the University of Edinburgh, on 17 May 1995. It considers various visions of Scots law as a whole, arguing that it is now a system based as much upon case law and precedent as upon principle, and that its departure from the Civilian tradition in the nineteenth century was part of a general European trend. An additional factor shaping the attitudes of Scots lawyers from the later nineteenth century on was a tendency to see themselves as part of a larger Englishspeaking family of lawyers within the British Empire and the United States of America.

Democratic Legitimacy

2011 ◽  
Author(s):  
Pierre Rosanvallon
Keyword(s):  
United States ◽  
The United States ◽  
Democratic Legitimacy ◽  
Political Leaders ◽  
Constitutional Courts ◽  
International Debate ◽  
The Past ◽  
Democratic Authority ◽  
Original Contribution ◽  
Western Democracies

It's a commonplace occurrence that citizens in Western democracies are disaffected with their political leaders and traditional democratic institutions. But this book argues that this crisis of confidence is partly a crisis of understanding. The book makes the case that the sources of democratic legitimacy have shifted and multiplied over the past thirty years and that we need to comprehend and make better use of these new sources of legitimacy in order to strengthen our political self-belief and commitment to democracy. Drawing on examples from France and the United States, the book notes that there has been a major expansion of independent commissions, NGOs, regulatory authorities, and watchdogs in recent decades. At the same time, constitutional courts have become more willing and able to challenge legislatures. These institutional developments, which serve the democratic values of impartiality and reflexivity, have been accompanied by a new attentiveness to what the book calls the value of proximity, as governing structures have sought to find new spaces for minorities, the particular, and the local. To improve our democracies, we need to use these new sources of legitimacy more effectively and we need to incorporate them into our accounts of democratic government. This book is an original contribution to the vigorous international debate about democratic authority and legitimacy.

The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term

2015 ◽  
Vol 43 (3) ◽  
pp. 455-492 ◽  
Author(s):  
Rosalind Dixon
Keyword(s):  
United States ◽  
The United States ◽  
Functional Approach ◽  
Constitutional Interpretation ◽  
High Court ◽  
Functionalist Approach

A ‘functional’ approach to constitutional interpretation is well-accepted in many other jurisdictions, including the United States, and offers a promising middle path between the extremes of pure formalism and pragmatism. It is, however, under-developed as an approach to constitutional interpretation, rather than doctrine, in Australia. The article offers an exploration of what it would mean to adopt a more explicitly functionalist approach to the interpretation of the Constitution, drawing on constitutional cases decided by the High Court in 2014.

scholarly journals Immunizing the Flock: How the Pandemic Court Rewrote Religious Freedom

Laws ◽  
2021 ◽  
Vol 10 (1) ◽  
pp. 12
Author(s):  
Paul Baumgardner
Keyword(s):  
United States ◽  
Supreme Court ◽  
Legal System ◽  
Religious Freedom ◽  
The United States ◽  
Religious Practices ◽  
The Past ◽  
The U.S

When coronavirus began to descend upon the United States, religious freedom advocates across the country sounded the alarm that citizens’ religious practices and institutions were under threat. Although some of the most extreme arguments championed by these advocates were not validated by our legal system, many were. This article explores the underappreciated gains made by religious freedom advocates before the U.S. Supreme Court over the past year. As a result of the “Pandemic Court”, religious freedom in the United States has been rewritten. This promises to radically change the educational, employment, and health prospects of millions of Americans for the rest of the pandemic and long afterwards.

Secularism and US Religion Jurisprudence

2017 ◽  
Author(s):  
Caroline Corbin
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Church And State ◽  
The United States ◽  
The State ◽  
Religious Liberty ◽  
Establishment Clause ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
Constitutional Jurisprudence

Religious surveys are finding greater percentages of Americans who self-identify as secular. At the same time, religious exemptions under the Free Exercise Clause have become more difficult to obtain. However, religion jurisprudence in the United States has not become more secular for two reasons. First, this greater unwillingness to grant constitutional exemptions reflects a shift in constitutional jurisprudence from “separationism” to “neutrality.” Rather than building a wall between church and state, the Establishment Clause is now interpreted to impose fewer restraints on state-sponsored religion. Second, statutes like the federal Religious Freedom Restoration Act and its state counterparts have not only reestablished separationist era levels of protection for religious liberty but increased them. The result is a religion jurisprudence where religion is accommodated more than ever, while the state has more leeway to advance religion. This combination has unfortunate consequences for both secular people and core secular values, such as antidiscrimination.

The Institutions of Reflexivity

2011 ◽  
Author(s):  
Pierre Rosanvallon
Keyword(s):  
United States ◽  
Strong Support ◽  
Active Role ◽  
The United States ◽  
German Federal Republic ◽  
Constitutional Courts ◽  
The Public ◽  
Long Time ◽  
Constitutional Thought

This chapter turns to the increasingly active role of constitutional courts. These courts have established themselves—not without reservations and challenges—as an essential vector of the push for greater reflexivity. For a long time the United States, India, and the German Federal Republic stood out as exceptions because of their traditional emphasis on judicial review. Now, however, constitutional courts of one sort or another are at the heart of democratic government everywhere. Indeed, some scholars go so far as to discern a veritable “resurrection” of constitutional thought. It is noteworthy that these new constitutional courts on the whole receive strong support from the public, as numerous comparative surveys have shown, and they count among the most legitimate of democratic institutions.

Religion as Spirituality

2020 ◽  
pp. 94-126
Author(s):  
Michael D. McNally
Keyword(s):  
United States ◽  
Native American ◽  
Religious Beliefs ◽  
Religious Freedom ◽  
The United States ◽  
Sacred Places ◽  
Beliefs And Practices ◽  
Sacred Lands ◽  
American Spirituality ◽  
Religious Claim

This chapter examines the failure in the courts of Native appeals to religious freedom protections for sacred lands, and it extends the previous chapter's analysis of the reception of Native claims to religion as religion. Where a religious claim conforms to the subjective, interior spirituality that has become naturalized in the United States, it has worked reasonably well in the courts. This is emphatically not the case where claims involve religious relationships with, uses of, and obligations to, land. The chapter explains how courts reason their way out of taking steps to protect Native American religious freedom when sacred places are threatened, a puzzling matter in that courts consistently acknowledge the sincerity of the religious beliefs and practices associated with those sacred places. Along the way the chapter develops a fuller sense of the workings of the discourse of Native American spirituality as it comes to control judicial comprehension of Native religious freedom claims.

United States: Exceptional Freedoms, Fabricated Fears

Hate Spin ◽  
2016 ◽  
Author(s):  
Cherian George
Keyword(s):  
United States ◽  
Free Speech ◽  
Religious Freedom ◽  
Hate Speech ◽  
The United States ◽  
Legal Framework ◽  
Constitutional Protections ◽  
High Degree

The United States has exceptionally strong Constitutional protections for free speech, but also for religious freedom. This chapter considers how this unique legal framework affects hate spin in the country. It finds that although hate speech can be expressed with a high degree of impunity, strong anti-discrimination laws limit the harms caused by such speech. Hate spin can, nonetheless, succeed in fostering fear and cultivating prejudice against minorities. The chapter examines how a network of anti-Muslim activists have used hate spin to campaign against mosque building, to oppose multi-cultural textbooks, and to introduce legislation protecting states from the fabricated threat of encroaching Muslim law. Beyond their stated goals, which may be frustrated by courts, these campaigns often have the symbolic purpose of spreading Islamophobia.

Mexican Immigrant Understandings of Empire, Race, and Gender

2018 ◽  
Author(s):  
John H. Flores
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Puerto Ricans ◽  
Gender Norms ◽  
The United States ◽  
Mexican Immigrant ◽  
Race And Gender ◽  
Mexican Culture ◽  
And Gender

This chapter compares liberal and traditionalist understandings of empire, race, and gender to explain why liberals often declined U.S. citizenship and why traditionalists became more amenable to U.S. naturalization. Mexican liberals defined themselves as anti-imperialist mestizos and, in Chicago, they joined with Puerto Ricans and Nicaraguans to protest U.S. imperialism. Most liberals rebuffed U.S. naturalization, in part, because they were put off by U.S. imperialism, racism, and gender norms. By contrast, traditionalists celebrated the United States for granting them religious freedom, and challenged the liberals by exalting all that was Catholic and thus Spanish and white in Mexican culture. In so doing, traditionalists became more open to a U.S. understanding of whiteness and citizenship, and many traditionalists decided they could create new lives for themselves in the United States.

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