McGeorge Law Review to Publish "Religion in New Constitutions: Recent Trends of Harmony and Divergence"

I am happy to say that my article "Religion in New Constitutions: Recent Trends of Harmony and Divergence" (draft available on SSRN) has been accepted for publication in the McGeorge Law Review.

Religion Provisions of the 2011 Provisional Constitution of Egypt

One of my current research projects involves analysis of the religion provisions of various constitutions enacted since the year 2000. From time to time on this blog, I'll post extracts of those provisions arranged according to categories such as "Religious Freedom" (guarantee of individual rights), "Established Religion" (joining religion and government), "Establishment Clause" (separating religion and government), "Ceremonial Deism" (symbolic references to religion that have little or no legal effect), "Equal Protection of Religion" (non-discrimination guarantees), "Preamble", "Religious Education", and "Religious Limitations."

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With the recent election of a candidate supported by the Muslim Brotherhood as President of Egypt, the religion provisions of the Egyptian Provisional Constitution of 2011 are certainly worth examining.  Here we see Islam as the established religion of Egypt, with Shar'ia law as "the principal source of legislation".  However, religious freedom and equality guarantees are present, along with an interesting provision stating that no political activities or parties should be "established on a religious referential authority."

Egypt Provisional Constitution 2011

Established Religion

Article 2  Islam is the religion of the state and the Arabic language is its official

language. Principles of Islamic law (Shari’a) are the principal source of

legislation.

Miscellaneous

Article 4  No political activity shall be exercised nor political

parties established on a religious referential authority, on a religious basis

or on discrimination on grounds of gender or origin.

Equal Protection of Religion

Article 6  Law applies equally to all citizens, and they are equal in rights and general duties. They may not be discriminated against due to race, origin,

language, religion, or creed.

Religious Freedom

Article 11  The state guarantees the freedom of creed, and practicing religious rites.

Ceremonial Deism

Article 30  The president will take the following oath before the People's Assembly before assuming his position " I swear to God that I will faithfully preserve the republican order, that I will respect the constitution and the law, and look after the interests of the people comprehensively, and that will

preserve the independence of the nation and the safety of its land"

Article 42  Every member of the People's Assembly and Shoura Councils will swear to conduct work in accordance with the following oath in front of his

legislative body " I swear to God that I will faithfully preserve the safety of

the nation and the republican order, that I will look after the interests of

the people and respect the constitution and the law"

"Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws"

Helen Pringle, Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws, 34 University of New South Wales Law Journal 316 (2011)


This short article discusses the turn in Australian law away from "blasphemy" laws and towards "religious vilification" laws.  


Pringle persuasively argues that, as there has not been a successful prosecution for blasphemy since 1871 (p. 319), "[w]here ostensibly blasphemous acts are the subject of prosecution in Australia, they are charged not as blasphemy but instead as offensive conduct or language.  That is, in both legal and cultural terms, blasphemy has generally been absorbed into the category of obscenity or offensiveness."  (p. 321)  


A second major argument in the article, and I think a more controversial one, is that religious vilification laws are not sui generis, and instead should stand or fall on exactly the same terms as racial vilification laws:  "So while blasphemy laws do not appear to have any contemporary justification, religious vilification laws have as much (or as little) validity as racial vilification laws." (p. 317)  Pringle argues that the common way in which critics of religious vilification laws attempt to distinguish them from racial vilification laws is incorrect: "Making such a distinction rests on the assumption that religious beliefs are matters of voluntary choice, or at least that they can be held at 'arm's length', rather than being constitutive of the believer, that is, a part of his or her identity that is as fixed, unchosen and indelible as race is often portrayed as being.  Religious bearing . . . is not necessarily so different from racial identity as to merit completely asymmetrical treatment[.]" (p. 330)


Third, Pringle argues that vilification laws are best understood, and perhaps theoretically defensible, when closely linked to the concept of discrimination rather than the concept of offense.

Religion Provisions of the Constitution of Ecuador (2008)

One of my current research projects involves analysis of the religion provisions of various constitutions enacted since the year 2000. From time to time on this blog, I'll post extracts of those provisions arranged according to categories such as "Religious Freedom" (guarantee of individual rights), "Established Religion" (joining religion and government), "Establishment Clause" (separating religion and government), "Ceremonial Deism" (symbolic references to religion that have little or no legal effect), "Equal Protection of Religion" (non-discrimination guarantees), "Preamble", "Religious Education", and "Religious Limitations".

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The 2008 Constitution of Ecuador has two provisions that are particularly interesting.  First, the religious freedom guarantee explicitly protects "those who profess no religion whatsoever", which is something of a rarity.  Second, education guarantee specifically allows for State funding of "mixed public and religious education" within certain limits.


Ecuador Constitution 2008

Preamble

INVOKING the name of God and recognizing our diverse forms of religion and spirituality,

Establishment Clause

Article 1. Ecuador is a constitutional State of rights and justice, a social, democratic, sovereign, independent, unitary, intercultural, multinational and secular State.

Equal Protection of Religion

Article 11(2)  No one shall be discriminated against for reasons of ethnic belonging, place of birth, age, sex, gender identity, cultural identity, civil status, language, religion

Religious Freedom

Article 66(8)  The right to practice, keep, change, profess in public or private one’s religion or beliefs and to disseminate them individually or collectively, with the constraints imposed by respect for the rights of others.
The State shall protect voluntary religious practice, as well the expression of those who profess no religion whatsoever, and shall favor an environment of plurality and tolerance.

Religious Education

Article 348  The State shall fund special education and shall be able to financially support mixed public and religious education, arts and crafts, and community education, as long as they abide by the principles of an education that is free of charge, mandatory and ensuring equality of opportunities, are held accountable for the results of education and the management of public resources, and are duly qualified in accordance with the law.

"Art, Expression and the Offended Believer"

Reid Mortensen, "Art, Expression and the Offended Believer" in Rex J. Ahdar, ed., Law and Religion (Aldershot: Ashgate, 2000).

Reid Mortensen's "Art, Expression and the Offended Believer" examines the most famous Australian prosecution for blasphemy, the 1997 "Piss Christ" case.

The first portion of the essay goes behind the opinion of Justice Harper to present interesting background to what prompted the litigation.  For example, Archbishop Pell (the plaintiff who initiated the private prosecution) made various attempts to keep Serrano's artwork from being displayed and, when it came to initiating a lawsuit, other religious bodies which supported Pell in principle refrained from joining him.

The middle portion of the essay is a brief overview of blasphemy law and the problems it poses.  One aspect of the discussion especially worth paying attention to is the question of how broad of a context should allegedly blasphemous material be examined in.  For "Piss Christ", for example, should it be considered on its own, in the context of Serrano's statements about it, in the context of the gallery's entire display of his work, in the context of modern art generally, or otherwise?  Similar issues could presumably arise regarding written blasphemy, when questions of whether the material should be viewed in isolation or considered as a small piece of an author's larger body of work may arise.

The third portion of the essay is, to my mind, the most thought-provoking.  Apart from legal considerations, what are the ethical responsibilities of publicly-funded art galleries?  Mortensen notes "as a public institution, the NGV [National Gallery of Victoria] was bound by principles of accountability to the broader Victorian community that a private institution could disregard."  (p. 191)  Mortensen goes on to state that accountability in this context "requires that real and serious consideration be given to the interests of the whole public and that the institution consult more thoroughly when it is aware that its actions will scandalize parts of the citizenry."  (p. 191-92)  He then suggests that the NGV would have been unlikely to make the same decision if a religious body other than Christians were to be the subject of offense, and that it "should not have so lightly dismissed the concerns of offended believers."  (p. 193)

Consideration of the ethical responsibilities of publicly-funded arts institutions is almost universally absent from the literature on blasphemy, and in this respect the essay makes an important contribution to the field.  That being said, I'm not convinced that the ethical responsibilities of publicly-funded galleries are necessarily different in kind than that of privately-funded ones.  They share certain ethical responsibilities: for example, ensuring that artwork is used with permission.  However, their primary mission is to curate and display art that, in their expert opinion, they consider to be of the highest possible quality.  Considerations of who may be offended is not their responsibility, as one of the fundamental purposes of much art is to provoke.  Publicly-funded galleries are ultimately responsible to taxpayers, but accountability need not take the form of avoiding offense when higher priorities are at stake.  Now, the NGV may have been guilty of hypocrisy if it were willing to offend Christians but not other segments of the community when art as good or better than Serrano's were available to display.  But this would be a problem of institutional cowardice, not of accountability.

Religion Provisions of the Constitution of East Timor

One of my current research projects involves analysis of the religion provisions of various constitutions enacted since the year 2000. From time to time on this blog, I'll post extracts of those provisions arranged according to categories such as "Religious Freedom" (guarantee of individual rights), "Established Religion" (joining religion and government), "Establishment Clause" (separating religion and government), "Ceremonial Deism" (symbolic references to religion that have little or no legal effect), "Equal Protection of Religion" (non-discrimination guarantees), "Preamble", "Religious Education", and "Religious Limitations"

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The Constitution of East Timor combines religious freedom and non-establishment guarantees in an interesting way by placing them in the same sentence.  Section 12(1) below, stating that the State "shall promote the cooperation with the different religious denominations" is of unclear import to me.

Preamble

Interpreting the profound sentiments, the aspirations

and the faith in God of the People of East Timor;

Miscellaneous

Section 11(2)  The State acknowledges and values the participation of the

Catholic Church in the process of national liberation of East

Timor.

Religious Freedom/Establishment Clause/Religious Education

Section 45. Freedom of conscience, religion and worship

1. Every person is guaranteed the freedom of conscience,

religion and worship and the religious denominations are

separated from the State.

2. No one shall be persecuted or discriminated against on the

basis of his or her religious convictions.

3. The right to be a conscientious objector shall be

guaranteed in accordance with the law.

4. Freedom to teach any religion in the framework of the

respective religious denomination is guaranteed.

Section 12. State and religious denominations

1. The State shall recognise and respect the different religious

denominations, which are free in their organisation and in the

exercise of their own activities, to take place in due

observance of the Constitution and the law.

2. The State shall promote the cooperation with the different

religious denominations that contribute to the well-being of

the people of East Timor.

Equal Protection of Religion

Section 16(2)  No one shall be discriminated against on grounds of colour,

race, marital status, gender, ethnical origin, language, social

or economic status, political or ideological convictions,

religion, education and physical or mental condition.

Ceremonial Deism

Section 77(3)  At the swearing-in ceremony, the President of the Republic

shall take the following oath:

“I swear to God, to the people and on my honour that I

will fulfil with loyalty the functions that have been

invested in me, will abide by and enforce the

Constitution and the laws and will dedicate all my

energies and knowledge to the defence and

consolidation of independence and national unity.”

Religion Provisions of the Constitution of the Dominican Republic

One of my current research projects involves analysis of the religion provisions of various constitutions enacted since the year 2000. From time to time on this blog, I'll post extracts of those provisions arranged according to categories such as "Religious Freedom" (guarantee of individual rights), "Established Religion" (joining religion and government), "Establishment Clause" (separating religion and government), "Ceremonial Deism" (symbolic references to religion that have little or no legal effect), "Equal Protection of Religion" (non-discrimination guarantees), "Preamble", "Religious Education", and "Religious Limitations".

Here we have the religion provisions of the Constitution of the Dominican Republic.

Preamble

We, the representatives of the people of the Dominican Republic, freely and democratically elected, gathered in the National Assembly for Revision of the Constitution; invoking the name of God;

Equal Protection Religion

Article 39. Right to Equality. All persons are born free and equal before the law and shall receive the same protection and treatment from institutions, authorities and other persons, and shall enjoy the same rights, freedoms and opportunities, without discrimination due to gender, skin color, age, disability, national origin, family ties, language, religion,

Religious Freedom

Article 45. Freedom of Conscience and Religion. The State guarantees the freedom of conscience and religion, subject to the need for public order and respect for public morals.

"The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights"

Austin Dacey, The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights (London: Continuum, 2012)

This is a slim book, but it reinforces the adage not to judge books by their covers, as Dacey delivers a thoughtful, incisive analysis of the concept of blasphemy from the perspective of moral theory.  While touching on aspects of the law and history of blasphemy (and doing so well), this book is primarily concerned with the fundamental question: what is blasphemy, and should it be prohibited?  Dacey establishes several important points early:

"First, the contemporary talk of blasphemy in the international public square is neither a recent invention nor a return of a medieval theological spectre.  Rather, it is a distinctly modern phenomenon in which blasphemy has been reframed within the secular idiom of respect for persons.  Second, this principle of equal respect . . . is all too easily appropriated in the service of illiberal and patriarchal notions of identity, propriety, and 'honor.'  Third, those most vulnerable to the abuse of laws against blasphemy and therefore most vocal in defiance of them are dissidents within the very communities whose 'feelings' the laws are purportedly protecting.  Finally, such dissidents are not just engaging in 'free speech' but manifesting religiously heterodox or secular commitments of conscience that are no less worthy than those they affront."  (p. vi)

Dacey goes on to argue that the concept of respect should not be used as a reason to prohibit blasphemy:  "Holding others accountable for their commitments is a way of respecting their natures as reason-authoring creatures, their equal standing as persons who are no less capable of making up their minds than ourselves.  . . .  [A]n affront to what is held sacred by others can be, paradoxically, a way of affirming their equal membership in moral community.  The susceptibility to criticism by others is a condition of existing in community with them."  (p. 54)

This leads to Dacey formulating three reasons in favor of religiously-offensive statements:  "treating believers as equals in the moral community, exercising the civic virtue of holding public claims accountable in the space of reasons, and defending one's own vision of the sacred."  (p. 62)

I found Dacey's discussion of the nature of the concept of "the sacred" especially helpful, as it ties into a project I'm working on regarding so-called "secular" or "cultural blasphemy.


The Future of Blasphemy is a well-researched, well-written contribution to the field and certainly worth seeking out.

Religion Provisions of the Angola Constitution (2010)

One of my current research projects involves analysis of the religion provisions of various constitutions enacted since the year 2000. From time to time on this blog, I'll post extracts of those provisions arranged according to categories such as "Religious Freedom" (guarantee of individual rights), "Established Religion" (joining religion and government), "Establishment Clause" (separating religion and government), "Ceremonial Deism" (symbolic references to religion that have little or no legal effect), "Equal Protection of Religion" (non-discrimination guarantees), "Preamble", "Religious Education", and "Religious Limitations".


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The Angola Constitution of 2010 which contains guarantees of religious liberty, equal protection of religion, and separation of church and state.  It also contains two relatively rare provisions: one explicitly guaranteeing the right to be a conscientious objector and one stating that individuals cannot be asked about their religious beliefs except for statistical purposes.

Source:  World Constitutions Illustrated (HeinOnline)

Establishment Clause

Article 10

(Secular state)

1. The Republic of Angola shall be a secular state and there shall be separation

between state and church, under the terms of the law.

Religious Freedom

Article 10 (2). The state shall recognise and respect the different religious faiths, which shall

be free to organise and exercise their activities, provided that they abide by

the Constitution and the laws of the Republic of Angola.

(3). The state shall protect churches and faiths and their places and objects of

worship, provided that they do not threaten the Constitution and public order

and abide by the Constitution and the law.

Article 41

(Freedom of conscience, religion and worship)

1. Freedom of conscience, religion and worship shall be inviolable.

2. No-one shall be deprived of their rights, persecuted or exempted from

obligations due to their religious beliefs or philosophical or political

convictions.

3. Under the terms of the law, the right to be a conscientious objector shall be

guaranteed.

4. No authority shall question anyone with regard to their convictions or

religious practices, except in order to gather statistical data that cannot be

individually identified.

Equal Protection of Religion

Article 23

(Principle of equality)

1. Everyone shall be equal under the Constitution and by law.

2. No-one may be discriminated against, privileged, deprived of any right or

exempted from any duty on the basis of ancestry, sex, race, ethnicity, colour,

disability, language, place of birth, religion, political, ideological or

philosophical beliefs, level of education or economic, social or professional

status.

Religion Provisions of the Constitution of Côte d’Ivoire (2000)

One of my current research projects involves analysis of the religion provisions of various constitutions enacted since the year 2000. From time to time on this blog, I'll post extracts of those provisions arranged according to categories such as "Religious Freedom" (guarantee of individual rights), "Established Religion" (joining religion and government), "Establishment Clause" (separating religion and government), "Ceremonial Deism" (symbolic references to religion that have little or no legal effect), "Equal Protection of Religion" (non-discrimination guarantees), "Preamble", "Religious Education", and "Religious Limitations".
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The Constitution of Côte d’Ivoire (the Ivory Coast) adheres to traditional liberal constitutionalism in the area of religion, with guarantees of religious freedom, equal protection of religion, and a secular state.

Source:  World Constitutions Illustrated (HeinOnline)

Freedom of Religion

Article 9

The freedom of thought and expression, notably the freedom of conscience, of

religious or philosophical opinion are guaranteed to all, under reserve of respect

of the law, the rights of others, of the national security and of the public order.

Equal Protection of Religion

Article 17

Any person has the right to freely chose his profession or his employment.

Access to public or private employment is equal for all. Any discrimination in

the access to or exercise of employment, based on sex, [or on] political, religious

or philosophical opinions, is prohibited.

Article 30:  The Republic assures to all equality before the law without distinction as

to origin, race, sex or religion.

Establishment Clause (“secular”)

Article 30  The Republic of Côte d’Ivoire is one and indivisible, secular, democratic and

social.

"Religion in New Constitutions: Recent Trends of Harmony and Divergence"

A draft of my new article Religion in New Constitutions: Recent Trends of Harmony and Divergence has now been placed on SSRN here and is available for free download.  Here is the abstract:

The explicit incorporation of Islamic principles in the constitutions of Iraq and Afghanistan has highlighted concern over the past decade that theocratic constitutionalism has become a rival to traditional liberal constitutionalism. Whereas liberal constitutionalism ascribes religion special value but places it in the sphere of the private through guarantees of religious freedom, equal protection of religion, and non-establishment, the emerging ideology of theocratic constitutionalism holds the potential to redefine all rights through the lens of a particular religion.

This Article is an empirical study of whether, and to what degree, liberal constitutionalism has been supplanted by theocratic constitutionalism. Every constitution enacted since the year 2000 has been examined, and its provisions relating to religion sorted into the following categories: Preambular, Ceremonial Deism, Established Religion, Freedom of Religion, Equal Protection of Religion, and (non-)Establishment Clause. Analysis of the prevalence of these categories in new constitutions demonstrates that most new constitutions display some evidence of both liberal and theocratic constitutionalism.

Religion Provisions of the Constitution of the Central African Republic (2004)

One of my current research projects involves analysis of the religion provisions of various constitutions enacted since the year 2000. From time to time on this blog, I'll post extracts of those provisions arranged according to categories such as "Religious Freedom" (guarantee of individual rights), "Established Religion" (joining religion and government), "Establishment Clause" (separating religion and government), "Ceremonial Deism" (symbolic references to religion that have little or no legal effect), "Equal Protection of Religion" (non-discrimination guarantees), "Preamble", "Religious Education", and "Religious Limitations".


Today's selection comes from the 2004 Constitution of the Central African Republic.  It contains standard religious freedom and equal protection of religion clauses, a statement that the nation shall be secular, and an interesting provision limiting the formation of political parties to those that respect secularism.  Rough translations from the French are mine.
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Equal Protection of Religion

Art. 5 :Tous les êtres humains sont égaux devant la loi sans distinction de race, d’origine ethnique, de région, de sexe, de religion, d’appartenance politique et de position sociale.  [Art.5:  Every human being is equal before the law without distinction on race, ethnic origin, region, sex, religion, political affiliation, and social position.]

Religious Freedom

Art. 8 :La liberté de conscience, de réunion, le libre exercice des cultes sont garantis à tous dans les conditions fixées par la loi.  [Art.8:  Liberty of conscience, assembly, and free exercise of religion are all guaranteed under conditions fixed by law.]

Establishment Clause

Art. 18:  La République Centrafricaine est un Etat de droit, souverain, indivisible, laïc et démocratique. [Art. 18:  The Central African Republic adheres to the rule of law and is sovereign, indivisible, secular, and democratic.]

 Miscellaneous

Art. 20:  Les partis ou groupements politiques . . . sont tenus de respecter le principe de la démocratie, de l’unité et de la souveraineté nationale, des Droits de l’Homme, de la laïcité et la forme républicaine de l’Etat, conformément aux lois et règlements en vigueur. [Art. 20:  Political parties or groups . . . must respect the principles of democracy, unity, national sovereignty, human rights, secularism, and the republican form of the State, and conform themselves to all laws and regulations in force.]