Passive Proselytism

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.

Utilizing Systems Theory Insights and Reflexive Law to Negotiate the “Collision between… Un-connecting Worlds” in Family Law

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.

Civil Liability for Sex Abuse by Muslim Clergy in Spain

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.

Religious Freedom in Contest

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.

Case Comment: Do Indigenous Peoples Have a Right to Limit Religious Proselytism Activities in Their Territories?

In ruling T-1022/01, the Colombian Constitutional Court responded to a claim brought by a member of the United Pentecostal Church of Colombia against the Yanacona Indigenous Council. The claimants alleged the violation of their rights to freedom of conscience, worship, and dissemination of thought based on two facts: (a) the refusal of their petition to carry out a “Spiritual Renewal Day” in the main square of the indigenous reservation of Caquiona, and (b) the interruption of the religious gatherings of the United Pentecostal Church of Colombia, as well as the prohibition of their pastors entering the indigenous reservation territory. The Court found no violation of the rights alleged. The purpose of this comment is to explore the understanding by the Colombian Constitutional Court of the right to cultural identity of indigenous communities, focusing particularly on whether it encompasses the right to be free from religious proselytism.

Reforming Laïcité or Reforming Islam?

This paper focuses on management of Islam by the French State since the state of emergency declared in 2015. We analyze the legal actions of the State using a law-in-context approach and theorize secularism as the State’s management of religion. We focus on the Senate Report (2016) concerning Muslim worship, the legal changes wrought by the state of emergency, and the institutions formed to govern Islam and secularism. We examine whether there has been a change in the French State’s approach to Muslim worship. Rather than remaining neutral, the French State has become even more actively involved in the field of religion by adopting a reformist attitude intended to transform not the principles of laïcité but the Muslims in France. In this period, the State has taken concrete steps and built institutions both to support the formation of a secularized French Islam and to govern the boundaries of laïcité.

Shared Sacred Sites

This paper analyzes the conditions under which the sharing of sacred sites in Turkey is still possible despite the serious Sunnification campaign of the akp regime. I argue that ideological, cultural, and pragmatic motivations led the Turkish state to refrain from interfering in practices the ruling party deems sacrilegious and distasteful.

The Value of Sacred Places

This article explores the neglected topic of the value of sacred places of various religions. The great value that adherents of these religions ascribe to these places cannot account for their public political value, given that the duty to treat such places with respect falls on all citizens, whatever their faith. The article considers and rejects three views regarding the value of sacred places: that they are protected by cultural rights, that damaging them would hurt the feelings of religious believers, and that they are the collective property of religious groups. It then considers the right to religious liberty, which has been argued in recent scholarship on religious accommodation to be best defended through the value of integrity and by honoring one’s religious commitments. Although integrity is too individualistic a concept to explain the value of sacred places directly, the way in which these places embody sacredness here on earth helps enable integrity by showing what one’s commitments are invested in. This view of the value of sacred places can account for the value of non-religious sacred places and for the duty to respect them all.

The Western Wall Controversy

Since 1988 a group of Jewish women in Israel, who later organized as the “Women of the Wall,” have been battling to realize what they see as their right to hold a public prayer service, while wearing prayer shawls and phylacteries and reading from a Torah scroll, in the women’s section of the Western Wall Plaza. Some of the Orthodox are fiercely opposed to the WoW and its project. This issue has reached the Israeli courts several times and has repeatedly engaged the political system. This article examines whether one of the two positions can draw on constitutional arguments that would justify a ruling in its favor.