"The Conjurer"

Blewett Lee, The Conjurer, 7 Va. L. Rev. 370 (1920-21)

My new research project is on what I call "freedom of religion at the margins": fortune-telling, witchcraft, and New Age beliefs.  I've had an enjoyable time reading the secondary legal literature on these topics, and one of the most prolific writers in the area was Blewett Lee.

In The Conjurer, Lee begins by discussing the historical distinction between "conjuration" (where a mortal compels the devil to obey his or her wishes by invoking the name of God) and "witchcraft" (where a mortal has a friendly relationship with the devil or a demonic familiar in order to carry out selfish wishes).  "The conjurer has really fared much better than the witch," Lee says, "who was considered from the start to be in voluntary league with the evil one."  (p. 372)

Lee goes on to discuss some medieval and English common law statutes and cases dealing with conjuration and witchcraft, some of which respect the distinction and others that do not.  Some note is made of American cases dealing with faith-healing.

The major thrust of the article, however, is whether and how mostly forgotten laws dealing with such topics apply to the then-burgeoning fascination with spiritualism (especially the practice of spiritual mediums conversing with the dead through seances).  As Lee writes, "The only thing that is left to us of the primitive magician is the spirit medium.  He has not only survived but thrived, while the witch, whose association with the powers of darkness was supposed to be friendly at all times, has entirely disappeared, at least where our law prevails." (p. 373-74)

Lee discusses how popular spiritualism is at the time, but makes an argument which I plan to question in my article:  "If spiritualism should be ultimately proved to have a real basis, the result would be simply that we would have to say that life is longer than we supposed.  There is nothing religious about this conclusion.  Indeed, it is a great mistake to treat spiritualism as a religion at all.  It should be regarded as simply a question of scientific fact."  (p. 376)

Now Published: "A Polemic Against the Standing Requirement in Constitutional Cases"

My article A Polemic Against the Standing Requirement in Constitutional Cases has now been published by the Capital University Law Review.  You can find the final version for free download on SSRN.

"Transnational Nonestablishment"

Claudia E. Haupt, Transnational Nonestablishment, 80 George Wash. L. Rev. 991 (2012)

This article is set in the context of the widespread entrenchment in international law of the right to freedom of religion without the concomitant (to many American eyes) entrenchment of a principle of nonestablishment.  Haupt intriguingly argues that a recent trend towards nonestablishment might be gleaned from a review of European Court of Human Rights cases dealing with religious freedom.  Haupt says:

"Under the [European Convention on Human Rights], we may be observing an emerging trend toward nonestablishment.  A number of recent [European Court of Human Rights] decisions addressing the relationship between religion and the state in democratic societies seem to implicitly assume a nonestablishment principle.  This trend is normatively supported by developments on the EU level and in individual European countries." (p. 1004)

Haupt argues that the "textual anchor" for this trend towards nonestablishment is actually contained in a clause in the Convention that serves as a limitation on the right to freedom of religion: Article 9(2).  She goes on to discuss several cases that she argues demonstrates the existence of this trend (pages 1008-1012), but also discusses an arguable counter-example, Lautsi.  She also concedes that many individual European countries have various forms of establishment domestically.

I'm not familiar enough with the Convention or the decisions that Haupt cites to evaluate how persuasive the claim of an emerging trend is.  I can say that the article is thorough, well-researched, and balanced.  The treatment of the nonestablishment principle in international law is an important topic, and well-worth watching closely.

Proposal to Remove Blasphemy Provision from Ireland Constitution

As The Volokh Conspiracy discusses, the present Irish Constitutional Convention has recommended a referendum to remove the document's provision on blasphemy.  The Irish Constitution presently exempts blasphemous statements from its general guarantee of free speech.  After Ireland's highest court determined that blasphemy was not illegal in the absence of a statutory ban, the Irish national parliament made blasphemy a crime in 2009.

"Religion and New Constitutions: Recent Trends of Harmony and Divergence" Now Published

The McGeorge Law Review has now published my article Religion and New Constitutions: Recent Trends of Harmony and Divergence.  The article in its final form can be downloaded for free from SSRN.

Religion Provisions of the Syrian Draft Constitution (2012)

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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Given the on-going civil war, this 2012 draft constitution is of limited practical value.  The document contains a clear establishment of Islam, a weak religious freedom guarantee, a surprising equal protection of religion provision, and a provision I have never seen before guaranteeing that the families of martyrs will be compensated.
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Established Religion

Article 3

(1). The President has to be part of the Muslim faith.

(2). Islamic jurisprudence doctrine is a primary source of legislation.

Religious Freedom

Article 3

(3). The state respects all religious beliefs and guarantees freedom to perform all rituals provided they do not jeopardise general order.

(4). Personal welfare and status of religious sects is protected and respected.

Article 42

1.     Freedom of belief is protected in accordance with law.

Ceremonial Deisms

Article 7

The constitutional oath is as follows:

"I swear by God the Almighty to respect the state's constitution, its laws and republican system, watch over the interests of the people and their freedoms, preserve the security, sovereignty and independence of the homeland, and work and struggle for the realisation of social justice and the unity of the Arab nation'." 

Article 145

Before assuming their duty, the President and members of the Supreme Constitutional Court take the following oath before the President of the Republic and in the presence of the speaker of the People's Assembly:

"I swear by the Almighty to respect the country's Constitution and laws and to carry out my duty with impartiality and loyalty."

Equal Protection of Religion

Article 33 (3)  Citizens are equal in rights and duties, without discrimination on grounds of sex, race, language, religion or creed.

Miscellaneous

Article 21

Martyrdom for the sake of the nation is a supreme value and the State shall provide for the families of martyrs in accordance with the Law.

Religion Provisions of the Swaziland Constitution (2005)

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 2005 Constitution of Swaziland contains a religious freedom guarantee with some broad limitations, an equal protection guarantee, and some ceremonial deisms.
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Preamble

Whereas We the People of the Kingdom of Swaziland do hereby undertake in humble submission to Almighty God to start afresh under a new framework of constitutional dispensation;

Religious Freedom

23. (1) A person has a right to freedom of thought, conscience or religion.

(2) Except with the free consent of that person, a person shall not be hindered in the enjoyment of the freedom of conscience, and for the purposes of this section freedom of conscience includes freedom of thought and of religion, freedom to change religion or belief, and freedom of worship either alone or in community with others.

(3) A religious community is entitled to establish and maintain places of education and to manage any place of education which that community wholly maintains, and that community may not be prevented from providing religious instruction for persons of that community in the course of any education provided at any place of education which that community wholly maintains or in the course of any education which that community otherwise provides.

(4) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision

(a) that is reasonably required in the interest of defence, public safety, public order, public morality or public health; or

(b) that is reasonably required for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited intervention of members of any other religion or belief.

Equal Protection of Religion

20. (1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.

(2) For the avoidance of any doubt, a person shall not be discriminated against on the grounds of gender, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion, age or disability.

Ceremonial Deisms

Second Schedule

OATHS

Sections 45(4), 73, 90(9), 128(1),143, 178 and 231(6)

(Oath or affirmation of allegiance)

I, ……………………………….. do swear (or solemnly affirm) that I will be faithful and bear true allegiance to King ……………………………, his heirs and successors, according to law.

So help me God. (To be omitted in affirmation.)

(Oath or Affirmation for due execution of office)

I……………………………………. do swear (or solemnly affirm) that I will well and truly serve King ……………………………….., his heirs and successors, in the office of (here insert the description of the office).

So help me God. (To be omitted in Affirmation)

(Judicial oath or Affirmation)

I……………………………………… do swear (or solemnly affirm) that I will well and truly serve King……………………………, his heirs and successors, in the office of (here insert the description of the judicial office) and I will do right to all manner of people according to the law without fear or favour, affection or ill will.

So help me God. (To be omitted in Affirmation)

"Religion, Secularism, and the National School Chaplaincy and Student Welfare Program"

A working draft of my new article Religion, Secularism, and the National School Chaplaincy and Student Welfare Program is now available for free download on SSRN.  Here is the abstract:

"This article examines the structure and function of the Commonwealth of Australia's National School Chaplaincy and Student Welfare Program (NSCSWP) in the context of an inquiry into whether the program should be considered religious, secular, or somewhere in between. The argument advanced is that changes to the program since its inception have rendered it incoherent in purpose and internally contradictory in design. Because of these flaws, the NSCSWP fails to effectively achieve legitimate policy goals. However, the Program can be redesigned to achieve its ends while simultaneously welcoming religious individuals and remaining faithful to a liberal vision of neutrality towards religion."

Religion Provisions of the Transitional Constitution of South Sudan

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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Here we have the 2011 transitional Constitution for South Sudan.  The Constitution contains several ceremonial deisms in the Preamble and Oath provisions, but it contains probably the most detailed and specific religious freedom provision of any constitution I've seen for this project.  It also contains an anti-establishment provision.
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Preamble

Grateful to the Almighty God for giving the people of South Sudan the wisdom and courage to determine their destiny and future through a free, transparent, and peaceful referendum in accordance with the provisions of the Comprehensive Peace Agreement, 2005;

Establishment Clause

Article 8(1)  Religion and State shall be separate.

Equal Protection of Religion

Article 8(2)  All religions shall be treated equally and religion or religious beliefs shall not be used for divisive purposes.

Article 14  All persons are equal before the law and are entitled to the equal protection of the law without discrimination as to race, ethnic origin, colour, sex, language, religious creed, political opinion, birth, locality or social status.

Religious Freedom

23. The following religious rights are guaranteed by this Constitution:

(a) the right to worship or assemble in connection with any religion or belief and to establish and maintain places for these purposes;

(b) the right to establish and maintain appropriate faith-based, charitable or humanitarian institutions;

(c) the right to acquire, possess and own movable and/or immovable property and make, acquire and use the necessary articles and materials related to the rites or customs of religion or belief;

(d) the right to write, issue and disseminate religious publications;

(e) the right to teach religion or beliefs in places suitable for these purposes;

(f) the right to solicit and receive voluntary financial and other contributions from individuals, private and public institutions;

(g) the right to train, appoint, elect or designate by succession appropriate religious leaders called for by the requirements and standards of any religion or belief;

(h) the right to observe days of rest, celebrate holidays and ceremonies in accordance with the precepts of religious beliefs; and

(i) the right to communicate with individuals and communities in matters of religion and beliefs at national and international levels.

Ceremonial Deisms

65. To assume his or her functions, every member of the National Legislative Assembly or the Council of States shall take the following oath before the appropriate House:

“I…….......…....., as a Member of the National Legislative Assembly/Council of States, do hereby swear by Almighty God/ solemnly affirm/ that I will bear true faith and allegiance to the Republic of South Sudan and its people; that I will obey and respect the Constitution and abide by the law; and that I will faithfully and conscientiously discharge my duties and responsibilities as a member of the National Legislative Assembly/Council of States and serve the people of the Republic of South Sudan to the best of my ability, so help me God.”

99. The President of the Republic of South Sudan shall, before assuming office, take the following oath before the public:

“ I……….…………., do hereby swear by the Almighty God/ solemnly affirm, that as the President of the Republic of South Sudan, I shall be faithful and bear true allegiance to the Republic of South Sudan and shall diligently and honestly discharge my duties and responsibilities in a consultative manner to foster the development and welfare of the people of South Sudan; that I shall obey, preserve and defend the Constitution and abide by the law; and that I shall protect and promote the unity of the people of South Sudan and consolidate the democratic decentralized system of government and preserve the integrity and dignity of the people of South Sudan; so help me God.”

108. (1) The President may appoint a limited number of Presidential Advisors and shall define their functions.

(2) To assume office, a Presidential Advisor shall, before the President, take the following oath:

“I……….…………., do hereby swear by the Almighty God/solemnly affirm/, that as a Presidential Advisor, I shall be faithful and bear true faith and allegiance to South Sudan and shall diligently and honestly discharge my duties and responsibilities and strive to foster the development and welfare of its people; that I shall obey, preserve and defend the Constitution and abide by the law; and that I shall protect and promote the unity of the people of South Sudan and consolidate the democratic decentralized system of government and preserve the integrity and dignity of the people of South Sudan; so help me God.”

Salafist Qur'an Banned in Russia

Slowly starting to get caught up on some recent stories.  Last month, Religion Clause Blog had a post about a Russian court banning a Salafi translation of the Qur'an on the basis that it was "extremist" literature.  The move was quite controversial among Russian Muslims, with some supporting the decision and others condemning it.

New Resource for Finding Religion Provisions in Constitutions

As reported in Religion Clause Blog, Google has created a new website named "Constitute" that allows users to search the text of almost every Constitution currently in force around the world.  Provisions are also coded by subject matter.  This would have made my research on religion in new constitutions much easier, and I'm excited to try out the site.

Religion Provisions of the Constitution of Serbia

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 Serbia has a strongly worded provision on the separation of church and state.  It's equal protection provision is quite standard, and it's religious freedom provision includes what is becoming standard: a proviso that the right doesn't apply if infringement is necessary to achieve other legitimate state values.
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Constitution of Serbia

Establishment Clause

Article 11

The Republic of Serbia is a secular state.

Churches and religious communities shall be separated from the

state. No religion may be established as state or mandatory religion.

Article 44  Churches and religious communities are equal and separated from the

state.

Equal Protection of Religion

Article 21  All direct or indirect discrimination based on any grounds, particularly

on race, sex, national origin, social origin, birth, religion, political or other opinion,

property status, culture, language, age, mental or physical disability shall be

prohibited.

Religious Freedom

Article 43

Freedom of thought, conscience, beliefs and religion shall be guaranteed,

as well as the right to stand by one’s belief or religion or change them by choice.

No person shall have the obligation to declare his religious or other beliefs.

Everyone shall have the freedom to manifest their religion or religious

beliefs in worship, observance, practice and teaching, individually or in community with

others, and to manifest religious beliefs in private or public.

Freedom of manifesting religion or beliefs may be restricted by law only if

that is necessary in a democratic society to protect lives and health of people, morals of

democratic society, freedoms and rights guaranteed by the Constitution, public safety and

order, or to prevent inciting of religious, national, and racial hatred.

Parents and legal guardians shall have the right to ensure religious

and moral education of their children in conformity with their own convictions.

Article 44  Churches and religious communities shall be equal and free to organize

independently their internal structure, religious matters, to perform religious rites in public,

to establish and manage religious schools, social and charity institutions, in accordance

with the law.

Constitutional Court may ban a religious community only if its activities

infringe the right to life, right to mental and physical health, the rights of child, right to

personal and family integrity, public safety and order, or if it incites religious, national or

racial intolerance.

Police Arrest U.S. Pastor Prior to Planned Burning of Qurans

Two weeks ago, a Gainesville-area pastor named Terry Jones was arrested by local police prior to carrying out his plans to burn almost three thousand Qurans.  Jones planned the book-burning as a statement about the role of Islam in the 9/11 attacks and says he was targeted by police.  Police said they arrested Jones not because of his views, but because he was carrying fuel in an unlicensed vehicle.  There is continuing controversy about whether the stop was pretextual in nature.  A good report on the incident is here.

"Black Magic" Banned in Indian State

Religion Clause Blog reports that the Indian state of Maharashta has banned the practice of "black magic" and related practices after the murder of a rationalist reformer.

Religion Provisions of the Constitution of Senegal

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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Here we have the Constitution of Senegal.  Here we have a standard equal protection guarantee, a religious freedom guarantee that contains the common caveat ("subject to the respect for public order"), and a guarantee that the state shall be "secular."  Some of the language in Article 24 is interesting, as it provides special protection for religious communities from the state.

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Establishment Clause—Weak

Article 1

The Republic of Senegal shall be secular, democratic and social.

Equal Protection of Religion

Article 1  It shall ensure equality before the law for all citizens, without distinction as to origin, race, sex or religion.

Religious Freedom

Article 8

The Republic of Senegal guarantees to all citizens their individual fundamental freedoms, economic

and social rights as well as group rights. These freedoms and rights are: Civil and political liberties,

freedom of opinion, freedom of expression, press freedom, freedom of association, freedom to hold

meetings, freedom of movement, freedom to protest, cultural freedoms, religious freedoms,

Article 24

Freedom of conscience and the free practice and profession of religion and culture, and the profession

of religious education shall, subject to the respect for public order, be guaranteed to all. Religious

institutions and communities shall have the right to develop without hindrance. They shall not

be subject to direct supervision by the state. They shall regulate and administer their affairs

autonomously.

Religion Provisions of the Constitution of Rwanda

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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Below are extracts from the Constitution of Rwanda.  You'll see that the country describes itself as "secular" in Article 1, prohibits discrimination on the basis of religion in Article 11, and contains a qualified religious freedom guarantee in Article 33 (religious freedom is guaranteed "in accordance with conditions determined by law", which is so broad as to potentially eviscerate the right).
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Establishment Clause (weak)

Article one

The Rwandan State is an independent, sovereign, democratic, social and secular

Republic;

Equal Protection of Religion

Article 11

All Rwandans are born and remain free and equal in rights and duties.

Discrimination of whatever kind based on, inter alia, ethnic origin, tribe, clan, colour,

sex, region, social origin, religion or faith, opinion, economic status, culture, language,

social status, physical or mental disability or any other form of discrimination is

prohibited and punishable by law.

Religious Freedom

Article 33

Freedom of thought, opinion, conscience, religion, worship and the public manifestation

thereof is guaranteed by the State in accordance with conditions determined by law.

Propagation of ethnic, regional, racial or discrimination or any other form of division is

punishable by law.

Ceremonial Deisms

Article 61

Before taking office, the President of the Senate and the Speaker of the Chamber of

Deputies, the Prime Minister, the President of Supreme Court, ministers, ministers of

state and other members of Government, senators, deputies, officers of the rank of

General and senior officers of Rwanda Defence Forces, commissioners and senior

officers of the National Police, the Vice-President and judges of the Supreme Court, the

Prosecutor General of the Republic, the Deputy Prosecutor General and such other

persons as may be determined by law shall take oath in these words:

« I,………………………. solemnly swear to the Nation that I shall:

1° diligently fulfill the responsibilities entrusted to me;

2° remain loyal to the Republic of Rwanda ;

3° observe the Constitution and the other laws;

4° work for the consolidation of national unity;

5° conscientiously fulfill my duties of representing the Rwandan people without any

discrimination whatsoever;

6° never use the powers conferred on me for personal ends;

7° promote respect for the freedoms and fundamental rights of the human being and

safeguard the interests of the Rwandan people.

Should I fail to honour this oath, may I face the rigours of the law.

So help me God»

Article 104

Without prejudice to provisions of Article 196 of this Constitution, before assuming the

duties of office, the President of the Republic shall take the oath of office before the

President of the Supreme Court in the presence of both Chambers of Parliament in these

words:

« I,…………………………. solemnly swear to the Nation that I shall:

1° diligently fulfil the responsibilities entrusted to me;

2° remain loyal to the Republic of Rwanda ;

3° observe and defend the Constitution and the other laws;

4° preserve peace, territorial integrity and consolidate national unity;

5° conscientiously fulfil my duties without any discrimination;

6° never use the powers conferred upon me for personal ends;

7° guarantee the respect of the freedoms and fundamental rights of the human being

and safeguard the interests of the Rwandan people.

Should I fail to honour this oath, may I face the rigours of law.

So help me God. »

Update

Apologies for the long delay between posts--it's been a busy semester!  But a successful one as well.

I'm hard at work on a new article titled Religion, Secularism, and the National School Chaplaincy and Student Welfare Program which examines the Australian Government's funding of chaplains in public and private schools.

The article will be part of an upcoming event at USQ on October 4th called the After Williams Colloquium.  Williams was a major decision handed down in 2012 that invalidated federal funding of the school chaplains program (only temporarily, as new legislation and a new round of litigation has begun).

In other news, my article The Curious Persistence of Blasphemy  is going to be reprinted in Volume IV of Ashgate's The Library of Essays on Law and Religion.

New Sacrilege Offence Introduced in Russian Parliament

The website Russia Beyond the Headlines has a story about a bill progressing through Russia's lower house of Parliament that would make it a crime to "express clear contempt for society" by "insulting religious feelings of religious people" while in a holy place such as a church or mosque.  The maximum fine for the proposed offence would be three years' imprisonment and the equivalent of a $ 16,000 fine.  According to the article, the bill has received widespread support, including from the country's head of the Presidential Council on Human Rights.

Religion Provisions of the Constitution of Qatar

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 Qatar contains a straightforward statement that the country's established religion is Islam.  The document does contain a standard equal protection clause and a religious freedom provision that is somewhat weak due to the exceptions provided.

Qatar

Established Religion

 Article 1 
Qatar is an independent sovereign Arab State. Its religion is Islam and Shari'a law shall be a main source of its legislations.

Ceremonial Deism

Article 10 
The Heir Apparent, on his appointment, shall take the following of oath: 
( I swear by Almighty God to respect Sharia law, the Constitution and the law, maintain the independence of the State and safeguard its territorial integrity, defend the freedom and interests of its people, and be loyal to the State and the Emir).

Article 74 
The Emir shall take the following oath prior to the discharge of his functions in a special session convened by Al-Shoura Council: 
The Emir shall take the following oath prior to the discharge of his functions in a special session convened by Al-Shoura Council: 
(I swear by Almighty God to respect Sharia law, the Constitution and the law, protect the independence of the State, safeguard its territorial integrity, and defend the freedom and interests of its people).

Article 92  Prior to the discharge of their duties before Al-Shoura Council and in an open session, the Members shall take the following oath: 
(I swear by the Almighty God to be loyal to the country and to the Emir, respect Sharia law, the Constitution and the law, and safeguard the interests of the people and perform my duties with honesty and integrity).

Article 119 Prior to the discharge of their duties before Al-Shoura Council and in an open session, the Members shall take the following oath: 
(I swear by the Almighty God to be loyal to the country and to the Emir, respect Sharia law, the Constitution and the law, and safeguard the interests of the people and perform my duties with honesty and integrity).

Equal Protection of Religion

Article 35 
All persons are equal before the law and there shall be no discrimination whatsoever on grounds of sex, race, language, or religion.

Religious Freedom

Article 50 

Freedom to practice religious rites shall be guaranteed to all persons in accordance with the law and the requirements of the maintenance of public order and morality.

Alleged Witches Tortured in Papua New Guinea?

The April 6 edition of The Australian has a short article about Amnesty International's call for an investigation into allegations that six women were tortured in Papua New Guinea for being witches.  The alleged torture was said to be part of Easter "sacrifices," but has not been confirmed by police.  The article notes that weeks prior, a 20-year-old mother was burned alive by a mob who accused her of being a witch when her son died, and that in 2011 a man was reportedly discovered eating his newborn son during a sorcery ceremony.

An excellent first-hand journalistic investigation by Tim Elliott into the witchcraft phenomenon in Papua New Guinea appeared in the April 20 edition of the Sydney Morning Herald.  The article discusses the complete lack of skepticism about  the prevalence of "sangumas" (witches) in PNG, with residents of the Highlands viewing them in an extremely negative light that often leads to mob violence and torture of those suspected of being sangumas.  I strongly recommend the article as it provides valuable context and insight into this disturbing issue.

Rallies in Support of Arrested Bloggers in Bangladesh

Religion News Service (carried by the Washington Post) reports that major Western humanist, freethinking, and atheist organizations planned large public rallies for April 25 in several cities in North America and Europe to support four bloggers arrested for blasphemy in Bangladesh.  The bloggers had called for a ban on the country's largest Islamic political party, and that party responded with calls for the arrest of the bloggers as "atheists."  The men were arrested and, as of this writing, remain in custody.

Dissertation Accepted: "The Curious Persistence of Blasphemy: Canada and Beyond"

I'm pleased to note that my dissertation The Curious Persistence of Blasphemy: Canada and Beyond has been accepted by my oral defence examination committee at Osgoode Hall Law School (York University, Toronto).  The dissertation includes material from the five law review articles I have published on blasphemy.  This material has been updated and reorganized, and the dissertation includes new material synthesizing the research and offering general conclusions along with a select annotated bibliography.  The dissertation should be available on SSRN shortly.

Turkish Pianist Convicted of Blasphemy for Twitter Remarks

Today's Toronto Star has a detailed article about the recent conviction of a well-known Turkish pianist named Fazil Say for "denigrating religion."  Say tweeted jokes about a call to prayer and the nature of heaven and hell.  He was given a ten-month suspended jail sentence, which means that if he is convicted of another crime within five years, he will have to serve the suspended sentence.  Say had fought the charges, but has deleted his Twitter account and it is unknown if he will appeal.

Religion Provisions of the Constitution of Niger (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 2010 Constitution of Niger guarantees the separation of church and state (worded interestingly in Article 8) and entrenches that guarantee against constitutional amendment.  The document also contains equal protection and religious freedom guarantees, though it prohibits political parties from being constituted on a religious basis.  Minor displays of ceremonial deisms are evident in the oaths the President, Prime Minister, and members of the Constitutional Court must take.
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Niger Constitution 2010
Source:  World Constitutions Illustrated (HeinOnline)

Establishment Clause

Article 3  “The Republic of Niger is a unitary State. It is one and indivisible, democratic and social.
Its fundamental principles are: the government of the people by the people and for the people;
the separation of the State and of religion; social justice; national solidarity”

Article 8: “ No religion, no belief can arrogate the political power or interfere in the affairs of State.”

Article 175
No procedure of revision may be engaged or followed when the integrity of the territory is infringed.
The republican form of the State, the multiparty [system], the principle of the separation of State and religion and the provisions of paragraphs 1 and 2 of Article 47 and of Article 185 of this Constitution may not be made the object of any revision.

Equal Protection of Religion

Article 8  “It assures to all equality before the law without distinction of sex, [or] of social, racial, ethnic or religious origin.”

Miscellaneous

Article 8:  “All particularist propaganda of a regionalist, racial or ethnic character, all manifestation of racial, social, sexist, ethnic, political or religious discrimination, are punished by the law.”

Article 9:  “The political parties with an ethnic, regionalist or religious character are prohibited. No party may be knowingly created with the purpose of promoting an ethnic group, a region or a religion, under penalty of the sanctions provided by the law.”

Religious Freedom

Article 8: “It respects and protects all beliefs.”

Article 17:  “Each one has the right to the free development of his personality in its material, intellectual, cultural, artistic and religious dimensions, provided that he does not violate the rights of others, or infringe the constitutional order, the law or morality.”

Article 30:  “The State guarantees the free exercise of worship [culte] and the expression of beliefs [croyances].”

Ceremonial Deism

Article 50:  Before entering into [his] functions, the President of the Republic takes an oath on the Holy Book [Livre Saint] of his confession before the Constitutional Court, in the presence of the members of the National Assembly, in these terms:
"Before God and before the sovereign Nigerien People, We . ., President the Republic, elected according to the laws, solemnly swear on the Holy Book [Livre Saint]:
- to respect and to have respected the Constitution that the People have freely given to themselves;
- to loyally fulfill the high functions with which we have been invested;
- to never betray or to misrepresent the aspirations of the People;
- to respect and to defend the republican form of the State;
- to preserve the integrity of the territory and the unity of the Nation;
- to respect and to defend the rights and freedoms of the citizens;
- not to take or to be guaranty [cautionner] for any measures degrading [avilissante] the human dignity;
- to see to the neutrality of the administration and to the respect for the texts that establish [consacrent] its depolitization;
- to work tirelessly for the happiness of the People;
- to spare no effort for the realization of African Unity;
- to conduct ourselves in all [things] as faithful and loyal servant of the People;
In the case of perjury, may we suffer the rigors of the law.
May God help us."
The oath is received by the Constitutional Court

Article 74
Before entering into [his] functions, the Prime Minister takes, before the National Assembly, on the Holy Book of his confession, the following oath:
"Before God and before the representatives of the sovereign Nigerien People,
We ........... Prime Minister, Head of the Government, solemnly swear on the Holy Book [Livre-Saint]:
- to respect the Constitution that the People have freely given to themselves;
- to loyally fulfill the high functions with which we have been invested;
- to respect and to defend the republican form of the State;
- to respect and to defend the rights and freedoms of the citizens;
- Not to take or to be guaranty [cautionner] for any measures degrading
[avilissante] the human dignity;
- to assure the neutrality of the administration and to the respect for the texts that
establish [consacrent] its depolitization;
- to work tirelessly for the happiness of the People;
- to conduct ourselves everywhere as faithful and loyal servant of the People;
In the case of perjury, may we suffer the rigors of the law.
May God help us."

Article 89
Before entering into [his] functions, the President of the National Assembly takes an oath on the Holy Book of his confession before the Constitutional Court, in these terms:
"Before God and before the sovereign Nigerien People, We ........... , President of the National Assembly solemnly swear on the Holy Book
- to respect and to have respected the Constitution that the People have freely
given to themselves;
- to loyally fulfill the high functions with which we have been invested;
- never to betray or misrepresent [travestir] the aspirations of the People
- to respect and to defend the republican form of the State;
- to respect and to defend the rights and freedoms of the citizens;
- not to take or to be guaranty [cautionner] for any measures degrading
[avilissante] the human dignity;
- to respect and to have respected the principles of the separation of the powers;
- to respect and to have respected the Internal Regulations of the National
Assembly;
- to work tirelessly for the happiness of the People;
- to conduct ourselves everywhere as faithful and loyal servant of the People;
In the case of perjury, may we suffer the rigors of the law.
May God help us."

Article 124
Before entering into [their] functions, the members of the Constitutional Court take an oath on the Holy Book [Livre Saint] of their confession before the President of the Republic in these terms:
"I swear to well and faithfully complete my functions, to exercise them with total impartially within the respect for the Constitution and with total independence, to keep the secrecy of the deliberations and the votes, not to take any public position and not to give any consultation on the questions relevant to the competence of the Court. May God help us.”

Religion Provisions of the Constitution of Nepal

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 Nepal contains what I call a "weak" establishment clause in that it describes the country as secular.  It contains a standard equal protection clause.

The religious freedom guarantee is watered down by several caveats:

(1) That the right applies only to "his or her own religion as handed down to him or her from ancient times".  This presumably means that recent converts and new faiths in the country will not be protected;

(2)  There is no right to convert someone to another faith;

(3) The right doesn't apply to actions "which may infringe upon the religion of others."  Such a vague term likely empties the religious freedom guarantee of meaning.

Note: the provisions of the Nepal Constitution below are current only as of 2008.

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Establishment Clause (weak)

4(1) Nepal is an independent, indivisible, sovereign, secular, inclusive *Federal Democratic Republican State.”

Equal Protection of Religion

13(2)  There shall be no discrimination against any citizen in the application of general laws on grounds of religion, race, gender, caste, tribe, origin, language or ideological conviction or any of these.

Religious Freedom

23  (1) Every person shall have the right to profess, practise and preserve his or her own religion as handed down to him or her from ancient times paying due regard to social and cultural traditions.

Provided that no person shall be entitled to convert another person from one religion to another, and no person shall act or behave in a manner which may infringe upon the religion of others.

     (2) Every religious denomination shall have the right to maintain its independent existence, and for this purpose to manage and protect its religious places and religious trusts, in accordance with law.

Ceremonial Deisms

Schedule 1-A  The oath of office and secrecy to be taken by the President and the Vice-president

I(President’s/Vice president’s full name)…………………….., being fully committed to the

people and country solemnly promise/swear before God and hereby take the oath of offices of

the (President/Vice President.

Pakistani Christian Charged with Blasphemy, Christian Homes Burned

This news is a few weeks old, but I thought it worth including in the archives.  On March 10th, Religion Clause Blog reported that after a Christian was charged with blasphemy in Pakistan, more than 100 homes of other Christians were burned by demonstrators.  The defendant, Sawan Masih, denies the charges and says they originate from an argument he got into with two men while drinking.  Pakistan's President has ordered compensation to the homeowners affected and has stated he will consult on how to implement the blasphemy law fairly.

Religion Provisions of the Constitution of Myanmar (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 Myanmar contains a traditional religious freedom guarantee, though it couples it with a proviso that the right is subject to public order and other values.  One of the aspects that makes the Myanmar Constitution rather unusual is that it recognizes multiple religions: Buddhism is given a "special position", but four other faiths (Christianity, Islam, Hinduism, and Animism) are "recognized."  How this works in practice (especially vis-a-vis non-recognized faiths) is not clear to me.

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Constitution of Myanmar 2008

Religious Freedom

Article  34. Every citizen is equally entitled to freedom of conscience and the right to freely

profess and practise religion subject to public order, morality or health and to the other

provisions of this Constitution.

Article 354. Every citizen shall be at liberty in the exercise of the following rights, if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality:

(a) to express and publish freely their convictions and opinions;

(b) to assemble peacefully without arms and holding procession;

(c) to form associations and organizations;

(d) to develop their language, literature, culture they cherish, religion they

profess, and customs without prejudice to the relations between one

national race and another or among national races and to other faiths.

Equal Protection of Religion

Article 348. The Union shall not discriminate any citizen of the Republic of the Union of Myanmar, based on race, birth, religion, official position, status, culture, sex and wealth.

Establishment of Religions

361. The Union recognizes special position of Buddhism as the faith professed by the

great majority of the citizens of the Union.

362. The Union also recognizes Christianity, Islam, Hinduism and Animism as the religions

existing in the Union at the day of the coming into operation of this Constitution.

363. The Union may assist and protect the religions it recognizes to its utmost.

Fortune-Telling Can be Regulated Says 4th Circuit

The Religion Clause Blog reports on an important decision by the Fourth Circuit Court of Appeals holding that municipalities may constitutionally regulate, through requirements for business permits and licensing, fortune-telling establishments.  According to the post, the opinion determined that the religious freedom claims asserted by the fortune-tellers involved were deemed to be "personal and philosophical choices" and "not deep religious convictions."  To me, this is a fascinating issue and one I hope to explore in a forthcoming law review article.

Religion Provisions of the Mozambique Constitution of 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."
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The 2004 Mozambique Constitution contains classic elements of liberal approaches to religion: it separates church and state, guarantees individual religious exercise, prohibits religious discrimination, and states that public education shall be secular.  There is one provision of the Constitution that is both unique and somewhat mystifying in terms of its practical effects: Article 12(4) states that the State "shall recognize and esteem the activities of religious denominations" in order to further various goals.  The implications of this provision will depend on whether it is seen as primarily rhetorical or as license for the government to foster closer ties with and/or endorse religious groups.

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Mozambique Constitution 2004

Establishment Clause

Article 12(1). The Republic of Mozambique shall be a lay State.

Article 12 (2). The lay nature of the State rests on the separation between the State and religious denominations.

Religious Freedom

Article 12(3). Religious denominations shall have organisational freedom, freedom to carry out their functions and freedom of worship, and they shall conform to the laws of the State.

Article 54(1)  All citizens shall have the freedom to practice or not to practice a religion.

Article 54(3)  Religious denominations shall have the right to pursue their religious aims freely and to own and acquire assets for realising their objectives.

Not Clear

Article 12(4)  The State shall recognise and esteem the activities of religious denominations in order to promote a climate of understanding, tolerance and peace, the strengthening of national unity, the material and spiritual well being of citizens, and economic and social development.

Equal Protection of Religion

Article 35  All citizens are equal before the law, and they shall enjoy the same rights and be subject to the same duties, regardless of colour, race, sex, ethnic origin, place of birth, religion, level of education, social position, the marital status of their parents, their profession or their political preference.

Article 54(2)  Nobody shall be discriminated against, persecuted, prejudiced, deprived of his or her rights, or benefit from or be exempt from duties, on the grounds of his faith or religious persuasion or practice.

Miscellaneous

Article 54(4)  The protection of places of worship shall be ensured.

Religious Limitations

Article 76  Political parties shall be prohibited from using names containing expressions that are directly related to any religious denominations or churches, and from using emblems that may be confused with national or religious symbols.

Religious Education

Article 113(3)  Public education shall not pertain to any religion.

"Blasphemy and the Modern, 'Secular' State

Rebecca Ross, Blasphemy and the Modern, 'Secular' State, (2012) 17 Appeal 3.

This article in the Canadian legal journal Appeal contains an interesting discussion of Canada's prohibition on blasphemous libel, a subject I've written much about.  The key question explored is whether such a prohibition is consonant with the country's status as a multicultural and secular democracy that cherishes freedom of speech and religion.  Ross' style is somewhat discursive, and the discussion ranges from Canada to the Danish Cartoon Controversy to the Rushdie Affair and back again, but she also makes some valuable and insightful contributions to the topic.  For one thing, she eschews formalism and instead argues that Canada's blasphemy law must be considered in a real-world context where Islam is the most highly-visible religion to be concerned with blasphemy:

"Here we encounter one of the foundational concerns with religious freedom: is religion a choice, or is it a cultural identity?  While some scholars argue that certain faiths like Islam view religion as an identity because of their different philosophical worldview, cultural critics argue that Islam is simply a more coercive form of opinion, due to the serious--and often fatal--consequences of apostasy and the forbiddance of religious critique.  While the standard Post-Colonial academic response to such criticism is to argue that the Western world is 'othering' a different culture and perpetuating stereotypes of Muslim barbarism, and while it is true that theoretically, any religion could require the same responses to blasphemy, we are still left with the uncomfortable fact that in contemporary society there are different consequences for criticizing Islam as opposed to other religions.  . . .  Canada's law against blasphemy must be considered within this context; to do otherwise would be to ignore contemporary socio-political reality as well as law's impact on the real world outside of Academia."  (p. 8)

In discussing Canada's ban, Ross also makes the interesting point that the dramatic growth in the numbers of religious nonbelievers in Canada requires that they be treated as a minority group and that recognition needs to be given to the fact that blasphemy laws affect them quite differently than such laws affect religious individuals.  (p. 15)  She also points out that "Canadian blasphemy law makes no distinction between those who criticize others' religions as opposed to those who criticize their own." (p. 15)

Ross concludes with strong words:

Blasphemy laws raise the spectre of censorship in an area of religion, not race or ethnicity, and the threat of violence in this area should be defined in exactly the way threats of violence in pursuit of political aims are usually defined--as terrorism.  The question is: should the state be involved in determining who can speak about religion?  According to Canadian notions of freedom of expression, religion and multiculturalism, the answer must be a resounding 'No.'" (p. 18)

"Witch" Tortured and Set on Fire in Papua New Guinea

According to today's New York Times, a young woman in Mount Hagen, Papua New Guinea was tortured and then burned alive in front of hundreds of witnesses based on accusations that she was a "witch."  The accusations were made from the family of a young boy who died in hospital the day prior.  Photographs of the burned corpse was shown in local newspapers.

(Here is a link to the article; it may be behind a paywall.)

Capital University Law Review to Publish "A Polemic Against the Standing Requirement in Constitutional Cases"

I'm quite pleased that Capital University Law Review will publish my article "A Polemic Against the Standing Requirement in Constitutional Cases" (draft available on SSRN).

Religion Provisions of the Morocco Constitution of 2011

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 Morocco Constitution of 2011 is a very interesting example of a document that strongly incorporates a national religion while simultaneously making reference to traditional liberal concepts like freedom of religion, non-discrimination, and "the rights of man."

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Morocco Constitution 2011

Source (including translation):  World Constitutions Illustrated (HeinOnline)

Preamble

“A sovereign Muslim State, attached to its national unity and to its territorial integrity, the Kingdom of Morocco intends to preserve, in its plentitude and its diversity, its one and indivisible national identity. Its unity, is forged by the convergence of its Arab-Islamist, Berber [amazighe] and Saharan-Hassanic [saharo-hassanie] components, nourished and enriched by its African, Andalusian, Hebraic and Mediterranean influences [affluents]. The preeminence accorded to the Muslim religion in the national reference is consistent with [va de pair] the attachment of the Moroccan people to the values of openness, of moderation, of tolerance and of dialog for mutual understanding between all the cultures and the civilizations of the world.”

“To deepen the bonds of togetherness with the Arab and Islamist Ummah [Oumma], and to reinforce the bonds of fraternity and of solidarity with its brother peoples;”

Ceremonial Deism

Article 1:  “The Nation relies for its collective life on the federative constants [constantes fidratrices], on the occurrence of moderate Muslim religion, [on] the national unity of its multiple components [affluents], [on] the constitutional monarchy and [on] democratic choice.”

Established Religion

Article 3:  “Islam is the religion of the State, which guarantees to all the free exercise of beliefs [cultes].”

Article 41:  “The King, Commander of the Faithful [Amir Al Mouminine], sees to the respect for Islam. He is the Guarantor of the free exercise of beliefs [cultes]. He presides over the Superior Council of the Ulema [Conseil supirieur des Oukdma], charged with the study of questions that He submits to it. The Council is the sole instance enabled [habilite] to comment [prononcer] on the religious consultations (Fatwas) before being officially agreed to, on the questions to which it has been referred [saisi] and this, on the basis of the

tolerant principles, precepts and designs of Islam. The attributions, the composition and the modalities of functioning of the Council are established by Dahir [Royal Decree]. The King exercises by Dahirs the religious prerogatives inherent in the institution of the Emirate of the Faithful [Imarat Al Mouminine] which are conferred on Him in exclusive manner by this Article.”

Article 175

“No revision may infringe the provisions relative to the Muslim religion, on the monarchic form of the State, on the democratic choice of the Nation or on [those] acquired in matters of [the] freedoms and of fundamental rights inscribed in this Constitution.”

Religious Freedom?

Article 3 “Islam is the religion of the State, which guarantees to all the free exercise of beliefs [cultes].”

Article 41:  “The King, Commander of the Faithful [Amir Al Mouminine], sees to the respect for Islam. He is the Guarantor of the free exercise of beliefs [cultes].”

Miscellaneous

Article 7:  “The political parties may not be founded on a religious, linguistic, ethnic or regional basis, or, in a general manner, on any discriminatory basis or [basis] contrary to the Rights of Man. They may not have for [an] objective [but], infringement to the Muslim religion, to the monarchical regime, to the constitutional principles, to the democratic foundations or to the national unity and territorial integrity of the Kingdom”