Debating Law & Religion Workshop

Tuesday, April 3, 2012
12:10–1:45 pm
Room 120, Yale Law School

In March 2011, the Grand Chamber of the European Court of Human Rights ruled that Italian law requiring the display of crucifixes in classrooms of state schools did not violate the European Convention on Human Rights. In so doing, it overturned an earlier chamber decision that the law violated the ECHR's guarantee of religious freedom. The Grand Chamber decision was hailed by supporters as affirming Italy's history and tradition as a religious country. Detractors argued that the decision effectively eroded the right of citizens not to be coerced by the state, whether directly or indirectly, to affirm one or any religion. The two decisions reflect contrasting positions on the nature and content of religious liberty, as well as the content and requirements of secularism. These reflections are relevant not only to the specific context of Italy and Europe, but also the United States which continues to struggle with the appropriate boundaries of the constitution's non-establishment injunction and its religious history.

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The display in a Danish newspaper of cartoon depictions of Mohammed led to rioting around the world. That event shines a light on an enduring and difficult question: In a multi-religious world, what is the appropriate relationship between multicultural ideals and free speech? How should the law mediate between the demands of religious sanctity and freedom of speech? Should lawyers and legislators take ethical as well as legal considerations into account? To what extent is free speech — even offensive or potentially dangerous speech — vital to the functioning of true democracy? And if some deem speech to offend religious sensibilities, whom ought a democracy to take to represent that religion? (Watch the video)
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What is American constitutionalism? Is it an orthodoxy based on the text of a document drafted in 1787, or is it defined by our constitutional practices where the text merely sustains constitutional discourse but does not define it? Should America's quasi-religious relationship to the Constitution be defined exclusively by the text of the Constitution or evolving constitutional practice? (Watch the video)
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Liberal democracies of the Western world emerged from a theological universe. The common law and the American constitution as well as European civil laws and public Institutions developed within or from deeply religious societies. Given this context, even ostensibly secular laws have often been the product of conscious and unconscious theological influences or religious institutions. American separation of church and state, and even French laicite, for example, appear to have been motivated as much by theological concerns to protect religion from the state as by secular interests to protect the state from religious influences.In this debate, we ask: How should a pluralist society composed of the religious, the a-religious, and the anti-religious relate to legal systems whose roots can be traced in large part to theological influences? Do secular Western societies have anything to gain in exploring the theological pedigree of their present values? Why is the United States, formally one of the most secular of democracies, so deeply religious? Is the effort to separate church and state doomed as long as religion remains embedded in the legal and social world? In theoretical contexts, is the exclusion of religious views from the public sphere a complementary effort to excavate the law from its theological heritage? Is such an excavation possible? (Watch the video)
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Law and religion are commonly conceived as dualistic antinomies in many modern Western states. The distinction between the mundane and the transcendent, religion and the law is often held up normatively as a fundamental basis for the organization of societies. These assumptions, however, have been and still are being challenged. In this debate, our speakers discuss ancient India and Rome, which seem to stand as genuine "others" to the contemporary West in their acceptance of continuity between religious and mundane life, between gods and politics. In examining the place of law and religion in ancient Rome and India, the debate focuses on the interpenetration of legal and religious discursive and normative systems along three themes: (i) pluralism; (ii) the problem of priority between law and religion (both as regards historical development and as regards the ideologies of modern reception and scholarship); and (iii) the nature of legal and religious argument and innovation. (Watch the video)
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The liberal democratic state contains and confronts diversity in many forms, both liberal and non-liberal. Accommodating religious norms and practices, even those with which the liberal state disagrees, has conventionally been considered a necessary part of religious tolerance. In the face of increasing diversification of society and fear of creeping fragmentation of a common social foundation, the nature and scope of ‘tolerance’ as a political value has become an important point of debate. For many liberals, tolerating – even respecting – difference is a foundational and paradigmatic liberal value. Others claim, however, that tolerating certain non-liberal ways of life undermines the values the liberal state is obliged to protect and promote.
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In this debate, we ask: What is public reason, and to whom do its obligations apply? Must laws be justified with reasons accessible to all rational persons? Are judges subject to different, and stricter, standards of public reason as compared to legislators or voters? Is it unduly burdensome to require religious citizens to bracket part of themselves when engaging in public reasoning? Can religious perspectives be seen as providing a dimension of depth otherwise missing from democratic deliberation, or are they inherently divisive?  (Watch the video)
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In recent years, Europe has confronted public anxiety regarding the place of Islam within its borders. With the largest Muslim population in Europe, France has been a focal point of some of the most intense debates – including the 2004 ban on religious symbols in public schools, denials of citizenship to 'traditionalist' Muslims, and the recent burqa ban in public places. These controversies raise questions concerning the character of French identity, the demands of citizenship, and the meaning of France's commitment to liberty and equality. Although framed around the meaning of laïcité and French republicanism, broader issues are implicated as Europe contemplates its historically complex relationship with Islam, in particular, and with religion, in general.
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The proposed construction of Park-51, an Islamic cultural center, near 9/11's Ground Zero ignited immediate controversy and triggered a number of spirited debates. Prominent public figures questioned whether the U.S.'s commitment to religious tolerance and cultural diversity should apply even in such sensitive contexts. In this debate, we ask: Do these disputes signal a so-called "clash of civilizations"? Are there circumstances that justify constitutional guarantees taking a backseat to the will of a given political community? Can the law provide an effective framework for resolving, or at least better understanding, the questions and controversies prompted by the Park-51 proposal?
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