Prof. Leslie C Griffin (UNLV Law) Institutional or Individual: What is Religious Freedom in the United States Today?
This paper will argue that the U.S. government has usually interpreted religious freedom to protect institutions and frequently ignored the interests of religious individuals. Interpreting the Free Exercise Clause to protect religious institutions’ rights against their members ignores the experience of the earliest Americans. Allowing the courts to enforce a rule that automatically favors religious institutions over their members is at odds with the early history of liberty of conscience.
This talk will look at two examples of the courts privileging institutions over individuals. First, the ministerial exception allows church employees’ claims against their employers to be dismissed without lawsuit. Second, RFRA (the Religious Freedom Restoration Act) permits religious employers to deny full health insurance coverage to their employees. The talk then explores the alternative, individual approach to law and religion, which the courts should favor in the future.
Wednesday, March 8, at 12:30-2 at Osgoode Hall law School, in the Faculty Common Room, room 2027.
Prof. Leslie C. Griffin (Boyd School of Law, UNLV) is a constitutional scholar known for her interdisciplinary work in law and religion, with a particular focus on the interface of religious liberties, gender, and equality in the United States. She is the author of numerous articles and book chapters about law, religion, politics and ethics, and her recent works include “A Word of Warning from A Woman: Arbitrary, Categorical, and Hidden Religious Exemptions Threaten LGBT Rights,” 7 Ala. C.R. & C.L.L. Rev. 97 (2015) and “The Catholic Bishops vs. the Contraceptive Mandate,” Religions 2015, 6, 1411–1432, available here.
Anthropologist Mayanthi Fernando from UC Santa Cruz gave a very interesting and very well attended talk as part of the Law Religion and Social Thought symposium today (check the website later for the tape, if you missed the talk).
The paper explored tensions in the way that liberal republican France situates and interrogates Muslim women in terms of their religion and their sexuality – both areas typically placed by liberal thought into the “private” arena. I’m worried about doing it justice so will say only that it will be forthcoming in Signs: Journal of Women in Culture and Society 2014 (speaking of, have a look at the set of things forthcoming from Signs in 2013! Set aside some time).
Fernando’s work focuses on the situation of Muslim women in France –“Exceptional Citizens: Secular Muslim Women and the Politics of Difference in France.” Social Anthropology/Anthropologie Sociale 17:3 (2009), pp. 379-392 is perhaps a decently representative choice. While not focused on law, law takes on a particular significance in her work, perhaps because it is a state forum where attitudes are on display and both demands and claims are made. In her talk today, she began with two cases to illustrate the tension she sees – first, a marriage annulment involving a Muslim couple (here is a Reuters report) and second, a discrimination claim brought by a Muslim woman told to remove her niqab whilst in the public areas of (ifI recall correctly was) an inn. Fernando focused on how Muslim women in France – particularly but not only those who wear the headscarf or niqab – are faced (!) the relatively contradictory demand and compulsion to talk about intimate, “private” aspects of their lives in order to justify themselves as members of the French public, referring to Foucault’s idea of “incitement to discourse” which can serve a regulatory and categorizing function.
As a scholar working in what is now an interdisciplinary space, Fernando’s work is cited in articles appearing in legal journals and by scholars attached to law schools. See, for instance:
- Critical Race Feminism Lifts the Veil: Muslim Women, France, and the Headscarf Ban [article] U.C. Davis Law Review, Vol. 39, Issue 3 (March 2006), pp. 743-786 Wing, Adrien Katherine; Smith, Monica Nigh 39 U.C. Davis L. Rev. 743 (2005-2006)
- Borders and Crossroads: Comparative Perspectives on Minorities and Conflict of Laws [article] Emory International Law Review, Vol. 25, Issue 2 (2011), pp. 987-1006 Fournier, Pascale 25 Emory Int’l L. Rev. 987 (2011)
- Volpp, Leti, Framing Cultural Difference: Immigrant Women and Discourses of Tradition (November 1, 2011). Differences: A Journal of Feminist Cultural Studies, Vol. 22, No. 1: 90-110; UC Berkeley Public Law Research Paper No. 2127473.
To ask that we pay greater attention to context, and in particular, to power and material effects, resonates with the work of such scholars as sociologist Dicle Kog˘acıog˘ lu and anthropologists Lila Abu-Lughod
and Mayanthi Fernando, who have all recently argued that particular gendered discourses about Muslim women divert attention from where it should instead be placed: institutional politics (Kog˘acıog˘ lu); history and politics (Abu-Lughod); and structural root causes of social and economic problems (Fernando). While the cases these scholars examine are varied (honor crimes in Turkey, u.s. discourse about women in Afghanistan, and
“secular Muslim women” in France), all point to how gendered discourses about the oppression faced by Muslim women function transnationally to fuel a general vision of Islam as synonymous with the oppression of women,
which absolutely ignores fundamental issues at work.
In a talk co-sponsored by the IFLS and the Osgoode Colloquium on Law, Religion & Social Thought, Professor Ngaire Naffine of the University of Adelaide Faculty of Law explored the ways in which, through the regulation of intimate and married life, “the criminal law, the Church, and the family conspired” to deny liberal legal personhood to women. She quoted J.S. Mill’s the Subjection of Women (1869):
… however brutal a tyrant she may unfortunately be chained to — though she may know that he hates her, though it may be his daily pleasure to torture her, and though she may feel it impossible not to loathe him — he can claim from her and enforce the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclinations. While she is held in this worst description of slavery as to her own person, what is her position in regard to the children in whom she and her master have a joint interest? They are by law his children. He alone has any legal rights over them.
in her historically and philosophically rich talk that took as its launching-off point a recent High Court decision that denied that the law of Australia ever recognized marital immunity for the crime of rape, Naffine pushed the audience of over 60 guests to think about the way in which the sexual revolution of the 1960s invited a new way of thinking about legal personhood. You can find the case, PGA v. The Queen  HCA 21, here:
Thus, at all times relevant to this appeal, and contrary to Hale’s proposition, at common law a husband could be guilty of a rape committed by him upon his lawful wife. Lawful marriage to a complainant provided neither a defence to, nor an immunity from, a prosecution for rape. [para 64, majority judgement]
This new — more relational — way of thinking about the legal person, Naffine argued, is one in which rape and marital violence is not only a defect in regard for the personhood of women, but threatens to “unperson” criminal law’s reasonable man. Here, Naffine referred to the work of Jennifer Nedelsky on relational theory, including the recent “Law’s Relations”. For Naffine, the spousal immunity for rape cannot be viewed as an aberration or exception within the criminal law; rather it is central to understanding how law constructs the legal person and its effects on gender equality. Her closing warned that the elimination of the marital exemption has existed for the “blink of an eye” in historical perspective – and she sees backsliding on progress made in gender justice, pointing as one example to the current controversy in Australia over the decision of the Sydney Anglican Diocese to create new (old? apparently a reversion to 1662) marriage vows that have women agreeing to “submit” to their husbands. She also cited the work of Osgoode PhD Ruthy Lazar, “Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in Ontario, Canada.” Canadian Journal of Women and the Law 22.2 (2010): 329-364 (sorry, not open source) (Lazar points out how the removal of the exemption is undercut by attitudes widely held by defense attorneys and crown attorney’s. Her method involved interviews with key criminal justice actors – worth a read).
Naffine’s talk was fully of intellectual honesty, humour, (pop)cultural references (Germaine Greer, the Beatles), and revelation (she worked as a police officer after finishing law school). We’ll post the tape when we get it. Meanwhile, professor Naffine will speak again, on a different topic, Monday October 1.
Other Upcoming Events
On October 25 at 12.30 p.m., the IFLS presents Professor Joanna Erdman,, the new MacBain Chair in Health Law and Policy, Schulich School of Law, Dalhousie University. Please visit http://ifls.osgoode.yorku.ca for more details and information about the IFLS. The next speaker in the Osgoode Colloquium on Law, Religion & Social Thought will be Professor Richard Moon (Windsor), who will deliver a talk on November 26 at 12.30 p.m. in Room 2027. For more information about the Colloquium, or to be added to the e-mail list for alerts about upcoming events and speakers, please e-mail firstname.lastname@example.org.
thanks to @blberger for drafting the lion’s share of this post. I did the little hyena bit.
Professor Ngaire Naffine: The Legal Person after the Sexual Revolution: Criminal Law, the Church and the Family.
September 24, 1230 IKB 2027 [Lunch, so Kindly RSVP at http://www.osgoode.yorku.ca/research/rsvp. Enter Event Code: LRST3]
IFLS is co sponsoring with Osgoode’s Colloquium on Law, Religion and Social Thought, convened by Prof Ben Berger. See what are contenders for tweediest tweets ever @blberger, and see his recent oped Stop Vilifying Roma Refugees with another colleague Sean Rehaag here.
Here is the poster in PDF.
Criminal Law, the Family and the Church have worked together as a mutually reinforcing economy, keeping the married woman in her place. All three institutions have prescribed rules for intimate married life, conferring authority on the husband, never the wife. But times are changing. The traditional marital rights of men have been formally curtailed, husbands can be charged with the rape of their wives and the married woman now has at least formal powers to refuse sexual access. The family has loosened its form and the power of the Church over intimate sexual matters has diminished. This paper considers the effects of this modernisaton of the lives of married women and men on the character of the criminal legal person. Are they his undoing?
Ngaire Naffine is a Professor in the Faculty of Law at the University of Adelaide. An innovative contributor to
debates in jurisprudence, feminist legal theory, criminology, criminal law, and medical law, Professor Naffine is
the author of Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person