Drift of the Court on religion

Tue Jun 3 11:18:24 PDT 2008

There is no doubt that the situation in Europe is not good, but I hope that I can add some clarity.

Two European States have established Churches; the United Kingdom and Greece which grants privileges to these bodies.  Other European States have recognised religious entities which are funded; France has a clear division.  There is no uniform system.

The Blair government unleased a wave of legislation hostile to Judeo Christian principles (same sex marriage, hostility to Christian speech, gender issues) and he has triggered  a US style 'culture wars' in the United Kingdom.  There is now considerable litigation on similar issues to first Amendment cases.  The arrested Christian preachers will sue the Police for violation of their freedom of expression (Article 10) and freedom of religious expression (Article 9).

The tensions in the United Kingdom with the Muslim minority are as tense as I have ever seen, primarily due to threats of violence from Islamists.

On a legal point: 
The European Court has dealt with questions of access by (non established) religious associations to resources on a basis of non-discrimination. Religious associations cannot  insist that the State establishes a system for the collection and distribution of tax from members to religious associations (as in Germany, Sweden and Austria). But if it chooses to do so, such a system must be non-discriminatory.[1] This is not incompatible with differential distributions of financial resources, so long as such differences reflect 'neutral' criteria such as the civil functions of a state church. Such civil functions might be the conduct of marriages and burials, the maintenance of buildings of historic value or the keeping of ancient public records.[2] The extent of general contributions to the association for these functions must be proportionate to their actual cost. 

Ironically, the Anglican Church has a public function is marriage and is subject to Constiutional/ Convention law (arguably) in this function.

Paul Diamond, barrister

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[1] Iglesia Bautista El Salvador v Spain No. 17522/90 72 DR 256.

[2] Bruno v Sweden No. 32196/96; Lundberg v Sweden No. 36846/97

  ----- Original Message ----- 
  From: Marc Stern 
  To: Law & Religion issues for Law Academics 
  Sent: Tuesday, June 03, 2008 6:41 PM
  Subject: RE: Drift of the Court on religion

  But based on those subsidies, the UK has forbidden religious schools receiving government aid to tell students  that homosexual behavior is sinful (although they can teach that the church is opposed to homosexual behavior). And under its laws regarding sexual orientation equality, it has forbidden a Catholic school to fire a headmaster (a lovely English term)  who had a same sex partner. Moreover, the British have at least proposed that religious schools be required to accept a portion of students of differ faiths to avoid religious segregation.( I don't know off hand whether the proposal was adopted.)Thus, the question of whether the religious subsidies advance religious freedom is more complicated than Alan's post suggests-even before we get to the questioned of whether the nominal Christianity of  public schools in England is itself any boon to religion.
  Marc Stern

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  From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
  Sent: Tuesday, June 03, 2008 1:35 PM
  To: Law & Religion issues for Law Academics
  Subject: RE: Drift of the Court on religion

  Sorry, Eugene. I can't help you on the question you asked about Justice White. But on the question of whether Justice Scalia's arguments about the Establishment clause are sound, I am somewhat perplexed by his apparent belief that Europe is committed to the separation of church and state and that religious expression is excluded from the public square throughout the continent. I'm not an expert on comparative law - but, to cite just one example,  it certainly seems to me that European countries are far more likely to permit government subsidies of religious schools and far more willing to permit religious teaching and prayer in the public schools than the United States.

  Alan Brownstein

  From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
  Sent: Tuesday, June 03, 2008 10:18 AM
  To: Law & Religion issues for Law Academics
  Subject: Drift of the Court on religion

      I'm sure Justice Scalia is not credible to lots of people, just as any Justice is not credible to lots of people.  But I take it the question should be whether his arguments about the Establishment Clause -- the question he seemed to be discussing -- are sound, a matter that is logically quite independent of whether one thinks his (and Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound.

      Incidentally, speaking of the drift of the Court on religion -- has anyone studied why Justice White provided the fifth vote for the Smith majority?  He did originally vote with Harlan in dissent in Sherbert v. Verner, but then seemed to accept the constitutionally compelled exemptions regime -- not joining, for instance, Rehnquist's and Stevens' expressions of skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant view of any Justice.  Yet in Smith he changed his view.  Any thoughts on why he so concluded?  Was he, for instance, persuaded by his thirty years of experience dealing with the constitutionally compelled exemptions regime that Scalia's critique was correct?  Or did he always take the view that the regime was unsound and should be jettisoned at the first opportunity, but that while it continued it should be enforced relatively rigorously?

      Eugene

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    From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brad & Linda
    Sent: Tuesday, June 03, 2008 5:57 AM
    To: Law & Religion issues for Law Academics
    Subject: Re: Scalia Decreis Drift of Court On Religion

    I'm not sure the author of the majority opinion in Employment Division V Smith is the most credible voice to criticize the Court's handling of religion.

    Brad Pardee

      ----- Original Message ----- 

      From: Joel Sogol 

      To: Religionlaw 

      Sent: Monday, June 02, 2008 6:44 PM

      Subject: Scalia Decreis Drift of Court On Religion

      Scalia Decries Drift of Court On Religion - June 2, 2008 - The New York Sun 

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