Il contributo e pubblicato con il permesso della Brigham Young University Law Review - dove e apparso nel vol. n. 2 del 2010 (Tribute to Professor Michael Goldsmith), alle pp. 101-148) - e dell‖Autrice, che ringraziamo sentitamente. SUMMARY: 1. Introduction - 2. History of and Motivations for the OIC Defamation of Religions Resolutions - 2.a - The OIC Exerts a Concerted Effort to Protect Islam - 2.b - Terrorist Attacks and Danish Cartoons Raise the Stakes - 3. Defamation of Religions: A Permissible Restraint on Freedom of Speech and Expression? - 3.a - History, Basic Elements, and Contemporary Usage of Defamation - 3.b - Interaction Between Defamation of Religions and the Basic Human Rights Enumerated in Major International Instruments - 4. The Evolution of a Resolution - 4.a. 1999-2000: Beginnings - 4.b. 2001: A Pre-9/11 World - 4.c. 2002: Reactions to the Violent Backlash Against Muslims - 4.d. 2003-2004: Fluctuations in Support - 4.e. 2005: Intensification of a Campaign - 4.f. 2006-2007: The Move to the General Assembly - 4.g. 2008: Decreasing Margins of Support - 4.h. 2009: Current Resolution and Recommendations for Application - 5. Consequences of Accepting the Resolutions and Subsequent Enactment of Statutes Designed to Prevent Defamation of Religions - 5.a. Human Rights Committee - 5.b. The European Court of Human Rights - 5.c. Blasphemy, Incitement, and Hate Speech Laws and Their Enforcement - 5.d. Possible Future Statutes and Enforcement Under Defamation of Religions Theory - 6. Alternatives to Defamation of Religions in the U.N. Resolutions - 7. Conclusion.
将贡献于e publicicato con Il permesso della杨百翰大学法律评论- dove e apparso nel vol. n. 2 del 2010(致敬教授迈克尔·戈德史密斯)，alle pp. 101-148) - e dell‖Autrice, che ringraziamo sentiente。总结:1。引言- 2。伊斯兰会议组织诽谤宗教决议的历史和动机- 2。1 .伊斯兰会议组织齐心协力保护伊斯兰教。恐怖袭击和丹麦漫画增加了风险。诽谤宗教:对言论和表达自由的一种允许的限制?- 3。诽谤的历史、基本要素与当代用法3 .诽谤宗教与主要国际文书列举的基本人权之间的相互作用。决议的演变- 4.a。1999-2000年:开始- 4.b。2001年:9/11之前的世界——4.c。2002:对穆斯林暴力反弹的反应- 4。2003-2004年:支助波动- 4.e。2005年:加强一项运动- 4.f。2006-2007:向大会转移- 4.g。2008年:支持边际下降- 4小时。2009:当前决议和应用建议- 5。接受决议和随后制定旨在防止诽谤宗教的法规的后果- 5.a。人权事务委员会- 5.b。欧洲人权法院- 5.c。亵渎、煽动和仇恨言论法及其执行- 5.d。在宗教诽谤下可能的未来法规和执行理论- 6。联合国决议中对宗教诽谤的替代方案——7。结论。
{"title":"Defamation of Religions: A Vague and Overbroad Theory that Threatens Basic Human Rights","authors":"Allison G. Belnap","doi":"10.13130/1971-8543/1068","DOIUrl":"https://doi.org/10.13130/1971-8543/1068","url":null,"abstract":"Il contributo e pubblicato con il permesso della Brigham Young University Law Review - dove e apparso nel vol. n. 2 del 2010 (Tribute to Professor Michael Goldsmith), alle pp. 101-148) - e dell‖Autrice, che ringraziamo sentitamente. SUMMARY: 1. Introduction - 2. History of and Motivations for the OIC Defamation of Religions Resolutions - 2.a - The OIC Exerts a Concerted Effort to Protect Islam - 2.b - Terrorist Attacks and Danish Cartoons Raise the Stakes - 3. Defamation of Religions: A Permissible Restraint on Freedom of Speech and Expression? - 3.a - History, Basic Elements, and Contemporary Usage of Defamation - 3.b - Interaction Between Defamation of Religions and the Basic Human Rights Enumerated in Major International Instruments - 4. The Evolution of a Resolution - 4.a. 1999-2000: Beginnings - 4.b. 2001: A Pre-9/11 World - 4.c. 2002: Reactions to the Violent Backlash Against Muslims - 4.d. 2003-2004: Fluctuations in Support - 4.e. 2005: Intensification of a Campaign - 4.f. 2006-2007: The Move to the General Assembly - 4.g. 2008: Decreasing Margins of Support - 4.h. 2009: Current Resolution and Recommendations for Application - 5. Consequences of Accepting the Resolutions and Subsequent Enactment of Statutes Designed to Prevent Defamation of Religions - 5.a. Human Rights Committee - 5.b. The European Court of Human Rights - 5.c. Blasphemy, Incitement, and Hate Speech Laws and Their Enforcement - 5.d. Possible Future Statutes and Enforcement Under Defamation of Religions Theory - 6. Alternatives to Defamation of Religions in the U.N. Resolutions - 7. Conclusion.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129581319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As the idea of revitalizing the Privileges or Immunities Clause gains traction, many commentators have offered their perspective on what constitutes a privilege or immunity. Most of these perspectives suggest that the Clause was meant to incorporate the Bill of Rights against the states, and a few posit broader applications. This paper examines the contemporary perspective as evidenced by public comment, newspaper articles, and speeches made by public figures. By examining the national conversation related to passage and application of the Fourteenth Amendment, a different approach to privileges or immunities emerges, one based on citizenship rights and nondiscrimination by states among its own citizens. The public understanding of the Privileges or Immunities Clause is at once broader than mere incorporation but narrower than conceptions tied to natural rights. This paper endeavors to show what that understanding was, and how it might apply today.
{"title":"The Original Public Understanding of Privileges or Immunities","authors":"J. J. Ward","doi":"10.2139/SSRN.1511971","DOIUrl":"https://doi.org/10.2139/SSRN.1511971","url":null,"abstract":"As the idea of revitalizing the Privileges or Immunities Clause gains traction, many commentators have offered their perspective on what constitutes a privilege or immunity. Most of these perspectives suggest that the Clause was meant to incorporate the Bill of Rights against the states, and a few posit broader applications. This paper examines the contemporary perspective as evidenced by public comment, newspaper articles, and speeches made by public figures. By examining the national conversation related to passage and application of the Fourteenth Amendment, a different approach to privileges or immunities emerges, one based on citizenship rights and nondiscrimination by states among its own citizens. The public understanding of the Privileges or Immunities Clause is at once broader than mere incorporation but narrower than conceptions tied to natural rights. This paper endeavors to show what that understanding was, and how it might apply today.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131313769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Patenting the Curve Ball: Business Methods and Industry Norms","authors":"Gerard N. Magliocca","doi":"10.2139/SSRN.1269342","DOIUrl":"https://doi.org/10.2139/SSRN.1269342","url":null,"abstract":"2009 Brigham Young University Law Review 875","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124703930","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years the practice of 'outsourcing' and 'offshoring' of production and services by firms in a wide range of industries has become quite common. This represents a change in the organization of production in many firms, from vertical integration to what has been called 'vertical specialization.' As such, it challenges theorists in management, economics, and the law to rethink some of the accepted explanations that theorists have offered about why individual firms exist at all. Why is it that some productive activity is organized through arms-length exchanges in markets, while some is governed by formal contracts, and other activities tend to be carried out within the boundaries of individual firms?
{"title":"Outsourcing, Modularity and the Theory of the Firm","authors":"Margaret M. Blair, E. O'Connor","doi":"10.2139/SSRN.1443357","DOIUrl":"https://doi.org/10.2139/SSRN.1443357","url":null,"abstract":"In recent years the practice of 'outsourcing' and 'offshoring' of production and services by firms in a wide range of industries has become quite common. This represents a change in the organization of production in many firms, from vertical integration to what has been called 'vertical specialization.' As such, it challenges theorists in management, economics, and the law to rethink some of the accepted explanations that theorists have offered about why individual firms exist at all. Why is it that some productive activity is organized through arms-length exchanges in markets, while some is governed by formal contracts, and other activities tend to be carried out within the boundaries of individual firms?","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126581011","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2008-05-01DOI: 10.4324/9781315091990-20
P. Coertzen
I. Introduction Prior to the end of apartheid in 1994 and the adoption of its new constitution in 1996, South Africa lacked any constitutional guarantee of religious freedom.1 Not surprisingly, South Africa's history is replete with examples of state interference in religious matters.2 The 1996 Constitution was the first in South Africa's long history to address the problem of religious freedom and, specifically, state interference in religion. It provides an explicit guarantee of freedom of religion.3 Nevertheless, this new constitutional right is not well-defined. This article argues that religious organizations in South African civil society should take advantage of a provision in South Africa's 1996 Constitution allowing for Parliament to adopt Charters of Rights which are consistent with the Constitution, by proposing a Charter of Religious Rights for South Africa.4 Adopting such a Charter would ensure that South Africa does not repeat its history in allowing its government to define the meaning and scope of fundamental rights such as reugious freedom. Part II of this Article recounts the history of religious freedom in South Africa, with a special focus on how the state has involved itself in defining and limiting that right. Part III focuses on religious freedom and church-state relations following the official end of apartheid in 1994. The current state of religious freedom and church-state relations is discussed in Part IV, and then Part V discusses a proposed Charter for Religious Freedom and makes the case for the charter's adoption. The Charter is attached as an addendum to this Article. Finally, Part VI offers a brief conclusion. II. CHURCH AND STATE IN SOUTH AFRICA: RELIGIOUS RIGHTS BEFORE 1994 In 1652, the Cape-which is now Cape Town-was established as a refreshment post by the Dutch East Indian Company.5 It remained as such until 1795 when the Cape was taken into custody by the British. In 1806 it became a British colony. In 1910, selfgovernment was given to the country,6 and in 1960 South Africa became a Republic under the government of the National Party. In 1994, after the dismantling of apartheid, South Africa became a democratic constitutional state with a constitution that guaranteed freedom of religion for the first time.7 A. Church-State Relations in South Africa: 1652-1795 When the Dutch East India Company established a refreshment post in South Africa in 1652, they brought with them the reformed faith of the Dutch Reformed Church,8 which was a public, statecontrolled church in the Netherlands.9 Those who brought the Dutch Reformed Church to South Africa brought with it a Constantinian, or Erastian, view of the relationship between church and state. The Constantinian model for the relationship between church and state is positive about the role that religion should play in society. It takes the view that society should serve the Triune God and that Christianity should provide direction to society. As John Hiemstra argues:
{"title":"Grappling with Religious Differences in South Africa: A Draft for a Charter of Religious Rights","authors":"P. Coertzen","doi":"10.4324/9781315091990-20","DOIUrl":"https://doi.org/10.4324/9781315091990-20","url":null,"abstract":"I. Introduction Prior to the end of apartheid in 1994 and the adoption of its new constitution in 1996, South Africa lacked any constitutional guarantee of religious freedom.1 Not surprisingly, South Africa's history is replete with examples of state interference in religious matters.2 The 1996 Constitution was the first in South Africa's long history to address the problem of religious freedom and, specifically, state interference in religion. It provides an explicit guarantee of freedom of religion.3 Nevertheless, this new constitutional right is not well-defined. This article argues that religious organizations in South African civil society should take advantage of a provision in South Africa's 1996 Constitution allowing for Parliament to adopt Charters of Rights which are consistent with the Constitution, by proposing a Charter of Religious Rights for South Africa.4 Adopting such a Charter would ensure that South Africa does not repeat its history in allowing its government to define the meaning and scope of fundamental rights such as reugious freedom. Part II of this Article recounts the history of religious freedom in South Africa, with a special focus on how the state has involved itself in defining and limiting that right. Part III focuses on religious freedom and church-state relations following the official end of apartheid in 1994. The current state of religious freedom and church-state relations is discussed in Part IV, and then Part V discusses a proposed Charter for Religious Freedom and makes the case for the charter's adoption. The Charter is attached as an addendum to this Article. Finally, Part VI offers a brief conclusion. II. CHURCH AND STATE IN SOUTH AFRICA: RELIGIOUS RIGHTS BEFORE 1994 In 1652, the Cape-which is now Cape Town-was established as a refreshment post by the Dutch East Indian Company.5 It remained as such until 1795 when the Cape was taken into custody by the British. In 1806 it became a British colony. In 1910, selfgovernment was given to the country,6 and in 1960 South Africa became a Republic under the government of the National Party. In 1994, after the dismantling of apartheid, South Africa became a democratic constitutional state with a constitution that guaranteed freedom of religion for the first time.7 A. Church-State Relations in South Africa: 1652-1795 When the Dutch East India Company established a refreshment post in South Africa in 1652, they brought with them the reformed faith of the Dutch Reformed Church,8 which was a public, statecontrolled church in the Netherlands.9 Those who brought the Dutch Reformed Church to South Africa brought with it a Constantinian, or Erastian, view of the relationship between church and state. The Constantinian model for the relationship between church and state is positive about the role that religion should play in society. It takes the view that society should serve the Triune God and that Christianity should provide direction to society. As John Hiemstra argues:","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"2006 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125557216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2008-05-01DOI: 10.4324/9781315091990-21
K. Yamagishi
This article examines the misuse of religion for political ends and the necessity for legal mechanisms that can prevent such misuse. In particular, I consider Japan's experience witii State Shinto, which serves as a useful illustration of the dangers incident to religious states. This is not to say that all theocratic or semi-theocratic states would necessarily share Japan's experience.1 Rather, I seek to illustrate some possibilities for Japan's future by considering Japan's past, and to make some recommendations for Japan's future to prevent the past from being repeated. State Shinto is a branch of the Shinto religion, a faith unique to the Japanese people. For about fifty years leading up to and including World War II, State Shinto was the de facto state religion of Japan, and it played a large role in the formation of militarism in Japan. The Japanese would do well to learn from this part of their history and act to ensure freedom of religion by further codifying separation of religion and state. Part I of this article discusses the relevant provisions of Japan's Constitution as it relates to freedom of religion. It also provides a brief historical context by explaining how State Shinto influenced and was influenced by the Japanese political system prior to and leading up to World War II. Part II explains how the religion clauses in Japan's post- World War II Constitution were a reaction to State Shinto and then detafis how Japan's Supreme Court has interpreted diese constitutional provisions. Part III argues for the adoption of a new code to more effectively ensure freedom of religion and separation of religion and state in Japan. Given the current interpretation of the relevant constitutional provisions, this new code significantly advances both freedom of religion and separation of religion and state. I. Freedom of Religion and Religious Political PARTICIPATION IN JAPAN A. The Legal Structure of Freedom of Religion in Japan The Constitution of Japan has several clauses intended to guarantee freedom of religion and separation of religion and state. The Constitution specifies that "freedom of religion is guaranteed to all."2 In addition to the freedom to believe and practice the religion that one desires, freedom of religion is also understood to include a right of political participation.3 Those who share similar beliefs are able to form religious associations; they may participate in proselytizing activities to spread their religion; and they may work toward the realization of such a society as is desirable according to their religion.4 As political participation is often necessary for this third aspect of religious freedom to have effect, it is an understood part of that freedom, though not explicitly stated in the Constitution. If religious adherents refrain from interfering with public welfare, they do not violate the Constitution when they seek to realize dieir religious goals by participating in politics.5 Consequently, Japanese relig
{"title":"Freedom of Religion, Religious Political Participation, and Separation of Religion and State: Legal Considerations from Japan","authors":"K. Yamagishi","doi":"10.4324/9781315091990-21","DOIUrl":"https://doi.org/10.4324/9781315091990-21","url":null,"abstract":"This article examines the misuse of religion for political ends and the necessity for legal mechanisms that can prevent such misuse. In particular, I consider Japan's experience witii State Shinto, which serves as a useful illustration of the dangers incident to religious states. This is not to say that all theocratic or semi-theocratic states would necessarily share Japan's experience.1 Rather, I seek to illustrate some possibilities for Japan's future by considering Japan's past, and to make some recommendations for Japan's future to prevent the past from being repeated. State Shinto is a branch of the Shinto religion, a faith unique to the Japanese people. For about fifty years leading up to and including World War II, State Shinto was the de facto state religion of Japan, and it played a large role in the formation of militarism in Japan. The Japanese would do well to learn from this part of their history and act to ensure freedom of religion by further codifying separation of religion and state. Part I of this article discusses the relevant provisions of Japan's Constitution as it relates to freedom of religion. It also provides a brief historical context by explaining how State Shinto influenced and was influenced by the Japanese political system prior to and leading up to World War II. Part II explains how the religion clauses in Japan's post- World War II Constitution were a reaction to State Shinto and then detafis how Japan's Supreme Court has interpreted diese constitutional provisions. Part III argues for the adoption of a new code to more effectively ensure freedom of religion and separation of religion and state in Japan. Given the current interpretation of the relevant constitutional provisions, this new code significantly advances both freedom of religion and separation of religion and state. I. Freedom of Religion and Religious Political PARTICIPATION IN JAPAN A. The Legal Structure of Freedom of Religion in Japan The Constitution of Japan has several clauses intended to guarantee freedom of religion and separation of religion and state. The Constitution specifies that \"freedom of religion is guaranteed to all.\"2 In addition to the freedom to believe and practice the religion that one desires, freedom of religion is also understood to include a right of political participation.3 Those who share similar beliefs are able to form religious associations; they may participate in proselytizing activities to spread their religion; and they may work toward the realization of such a society as is desirable according to their religion.4 As political participation is often necessary for this third aspect of religious freedom to have effect, it is an understood part of that freedom, though not explicitly stated in the Constitution. If religious adherents refrain from interfering with public welfare, they do not violate the Constitution when they seek to realize dieir religious goals by participating in politics.5 Consequently, Japanese relig","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125697833","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Few events in American constitutional history have been as maligned as the Blaine Amendment of 1876. ' The proposed federal amendment sought to apply the proscriptions of the First Amendment religion clauses to the actions of state governments while it expressly prohibited the appropriation of public funds for the support of any school under the control of a religious sect or denomination.2 The Amendment came about at a time of heightened controversy over the religious character of American public education and the public funding of private religious schooling, primarily Catholic parochial schools.3 At times, the debate over the Amendment and the larger "School Question" devolved into ethnic and religious aspersions, a fact that has led critics to charge that the Amendment and the principles it represented were motivated chiefly by anti-Catholic animus.4 The Blaine Amendment failed to receive the necessary approval from the Senate,5 but several states subsequently enacted comparable amendments in their respective constitutions prohibiting the public funding of religious schooling.6 Critics have used the religious bigotry associated with the Blaine Amendment to discredit these state facsimiles and the no-funding principle they represent; as critic-in-chief Justice Clarence Thomas has written, the legal rule prohibiting funding of religious schools "has a shameful pedigree that we [should] not hesitate to disavow . . . . It is [a] doctrine, born of bigotry, [that] should be buried now."7 I have written previously about the background to the Blaine Amendment, arguing that neither the history nor meaning of the Amendment can be easily distilled.8 The Blaine Amendment was a fulcrum in the century-long struggle over the propriety, role, and character of universal public education in America while, at the same time, it served as the capstone of an eight year controversy over the legitimacy of Protestant-oriented public schooling, a controversy that raged along side the parochial school funding question. The Blaine Amendment had as much to do with the partisan climate of the post-Reconstruction era and related concerns about federal power over education as it did with Catholic animus. Included in the mix was a sincere effort to make public education available for children of all faiths and races, while respecting Jeffersonian notions of church-state separation. Those who characterize the Blaine Amendment as a singular exercise in Catholic bigotry thus give short shrift to the historical record and the dynamics of the times.9 This Article will consider the Blaine Amendment from a different, though related, perspective: whether it established or advanced a principle of constitutional significance. The legal controversy over the Blaine Amendment that has taken place over the past two decades has been misplaced. Particularly following the 2002 Cleveland voucher decision (Zelman v. Simmons-Harris),10 attention has turned to state constitutions as setting the
{"title":"The Insignificance of the Blaine Amendment","authors":"Steven K. Green","doi":"10.2139/ssrn.3742967","DOIUrl":"https://doi.org/10.2139/ssrn.3742967","url":null,"abstract":"Few events in American constitutional history have been as maligned as the Blaine Amendment of 1876. ' The proposed federal amendment sought to apply the proscriptions of the First Amendment religion clauses to the actions of state governments while it expressly prohibited the appropriation of public funds for the support of any school under the control of a religious sect or denomination.2 The Amendment came about at a time of heightened controversy over the religious character of American public education and the public funding of private religious schooling, primarily Catholic parochial schools.3 At times, the debate over the Amendment and the larger \"School Question\" devolved into ethnic and religious aspersions, a fact that has led critics to charge that the Amendment and the principles it represented were motivated chiefly by anti-Catholic animus.4 The Blaine Amendment failed to receive the necessary approval from the Senate,5 but several states subsequently enacted comparable amendments in their respective constitutions prohibiting the public funding of religious schooling.6 Critics have used the religious bigotry associated with the Blaine Amendment to discredit these state facsimiles and the no-funding principle they represent; as critic-in-chief Justice Clarence Thomas has written, the legal rule prohibiting funding of religious schools \"has a shameful pedigree that we [should] not hesitate to disavow . . . . It is [a] doctrine, born of bigotry, [that] should be buried now.\"7 I have written previously about the background to the Blaine Amendment, arguing that neither the history nor meaning of the Amendment can be easily distilled.8 The Blaine Amendment was a fulcrum in the century-long struggle over the propriety, role, and character of universal public education in America while, at the same time, it served as the capstone of an eight year controversy over the legitimacy of Protestant-oriented public schooling, a controversy that raged along side the parochial school funding question. The Blaine Amendment had as much to do with the partisan climate of the post-Reconstruction era and related concerns about federal power over education as it did with Catholic animus. Included in the mix was a sincere effort to make public education available for children of all faiths and races, while respecting Jeffersonian notions of church-state separation. Those who characterize the Blaine Amendment as a singular exercise in Catholic bigotry thus give short shrift to the historical record and the dynamics of the times.9 This Article will consider the Blaine Amendment from a different, though related, perspective: whether it established or advanced a principle of constitutional significance. The legal controversy over the Blaine Amendment that has taken place over the past two decades has been misplaced. Particularly following the 2002 Cleveland voucher decision (Zelman v. Simmons-Harris),10 attention has turned to state constitutions as setting the ","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131731662","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper discusses the role of federalism in the debate over interstate recognition of same-sex marriages. It examines and rejects as simplistic the argument that the role of full faith and credit is to promote greater national uniformity. Instead, full faith and credit requires a balancing between the policy of uniformity and its counterweight, state autonomy and particularism (which is termed interstate pluralism). The paper identifies how interstate pluralism is reflected in a wide variety of ways in the law. It then seeks to show the benefits to the individual of having different legal communities to choose from. It then uses extensive economic and demographic data to demonstrate just how pluralistic are states are. It concludes that state should generally apply forum law to decide whether to recognize same-sex marriages.
{"title":"Interstate Pluralism: The Role of Federalism in the Same Sex Marriage Debate","authors":"Jeffrey L. Rensberger","doi":"10.2139/SSRN.1011007","DOIUrl":"https://doi.org/10.2139/SSRN.1011007","url":null,"abstract":"This paper discusses the role of federalism in the debate over interstate recognition of same-sex marriages. It examines and rejects as simplistic the argument that the role of full faith and credit is to promote greater national uniformity. Instead, full faith and credit requires a balancing between the policy of uniformity and its counterweight, state autonomy and particularism (which is termed interstate pluralism). The paper identifies how interstate pluralism is reflected in a wide variety of ways in the law. It then seeks to show the benefits to the individual of having different legal communities to choose from. It then uses extensive economic and demographic data to demonstrate just how pluralistic are states are. It concludes that state should generally apply forum law to decide whether to recognize same-sex marriages.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"105 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114356823","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Before the civil war, "lynching" signified all forms of group-inflicted punishments, including vigilantism and mob killings. By this definition, lynchings happen in every country. Only in America, however, was lynching widespread and socially accepted. Scholars say this shows that the American commitment to due process often succumbed to "vigilante values," that is, the desire for speedy, certain and severe penalties. They contend that vigilante values triumphed over due process on the frontier, where courts were weak and vigilance committees strong. This article demonstrates that this view must be substantially qualified because due process was of great concern to Americans on the frontier, especially with respect to members of their own communities. The core of the article is a comprehensive study of law in the California gold rush. The thousands of publications on lynching have simply missed this critical chapter in American legal history. Hundreds of accounts of lynchings or "trials" (the miners used the terms interchangeably) indicate that most suspects were tried before a judge and an impartial jury, and some were acquitted. Lynchings or trials in the gold mines thus often resembled those on the overland trail studied by John Reid. This article further suggests that similar trials were common on the frontier. Scholars have failed to distinguish these rather poorly documented proceedings from the activities of vigilance committees, thereby omitting an important factor in their studies of the American legal experience. The importance of due process to Americans, even in crowds, and even beyond the reach of the courts, must now be reassessed.
{"title":"Criminal Law Beyond the State: Popular Trials on the Frontier","authors":"A. McDowell","doi":"10.2139/SSRN.928981","DOIUrl":"https://doi.org/10.2139/SSRN.928981","url":null,"abstract":"Before the civil war, \"lynching\" signified all forms of group-inflicted punishments, including vigilantism and mob killings. By this definition, lynchings happen in every country. Only in America, however, was lynching widespread and socially accepted. Scholars say this shows that the American commitment to due process often succumbed to \"vigilante values,\" that is, the desire for speedy, certain and severe penalties. They contend that vigilante values triumphed over due process on the frontier, where courts were weak and vigilance committees strong. This article demonstrates that this view must be substantially qualified because due process was of great concern to Americans on the frontier, especially with respect to members of their own communities. The core of the article is a comprehensive study of law in the California gold rush. The thousands of publications on lynching have simply missed this critical chapter in American legal history. Hundreds of accounts of lynchings or \"trials\" (the miners used the terms interchangeably) indicate that most suspects were tried before a judge and an impartial jury, and some were acquitted. Lynchings or trials in the gold mines thus often resembled those on the overland trail studied by John Reid. This article further suggests that similar trials were common on the frontier. Scholars have failed to distinguish these rather poorly documented proceedings from the activities of vigilance committees, thereby omitting an important factor in their studies of the American legal experience. The importance of due process to Americans, even in crowds, and even beyond the reach of the courts, must now be reassessed.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114207887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2006-05-01DOI: 10.4324/9781315091990-15
T. Mahmood
I. INTRODUCTION Among the seven nations of South Asia forming the South Asian Association for Regional Cooperation (SAARC),1 India stands out as the only country that has declared itself a secular State. In each of the remaining six nations, one or another spiritual faith has the status of the officially adopted or legally promoted religion-Buddhism in Bhutan2 and Sri Lanka;3 Hinduism in Nepal;4 and Islam in Bangladesh,5 Maldives,6 and Pakistan.7 Constitutionally, India is a secular country and therefore has no State religion. However, it has developed over the years its own unique concept of secularism that is fundamentally different from the parallel American concept of secularism requiring complete separation of church and state, as also from the French ideal of laicite.8 Despite the clear incorporation of all the basic principles of secularism into various provisions of the Constitution when originally enacted, its preamble did not then include the word secular in the short description of the country, which it called a "Sovereign Democratic Republic." This was, of course, not an inadvertent omission but a well-calculated decision meant to avoid any misgiving that India was to adopt any of the western notions of a secular state. Twenty-five years later-by which time India's peculiar concept of secularism had been fully established through its own judicial decisions and state practice, the preamble to the Constitution was amended to include the word "secular" (along with "socialist") to declare India to be a "Sovereign Socialist Secular Democratic Republic."9 This Article briefly states and explains the constitutional, statutory, and judicial framework of India's religion-state relations, and the unique balance that is found in that framework between secularism and freedom of religion-namely that, in India, the law of the land determines the scope of religion in society; it is not religion that determines the scope of the law. Part II below explains the foundational role India's Constitution plays in its religion-state relations. Part III briefly looks into the legislative enactments and governmental mechanisms relating to or having a bearing on religious matters. Part IV illustrates how the courts have interpreted India's concept and principle of secularism and religious freedom. II. CONSTITUTIONAL FOUNDATIONS Constitutionally, India is a secular nation, but any "wall of separation" between religion and state exists neither in law nor in practice-the two can, and often do, interact and intervene in each other's affairs within the legally prescribed and judicially settled parameters. Indian secularism does not require a total banishment of religion from the societal or even state affairs. The only demand of secularism, as mandated by the Indian Constitution, is that the state must treat all religious creeds and their respective adherents absolutely equally and without any discrimination in all matters under its direct or indirect control. In th
{"title":"Religion, Law, and Judiciary in Modern India","authors":"T. Mahmood","doi":"10.4324/9781315091990-15","DOIUrl":"https://doi.org/10.4324/9781315091990-15","url":null,"abstract":"I. INTRODUCTION Among the seven nations of South Asia forming the South Asian Association for Regional Cooperation (SAARC),1 India stands out as the only country that has declared itself a secular State. In each of the remaining six nations, one or another spiritual faith has the status of the officially adopted or legally promoted religion-Buddhism in Bhutan2 and Sri Lanka;3 Hinduism in Nepal;4 and Islam in Bangladesh,5 Maldives,6 and Pakistan.7 Constitutionally, India is a secular country and therefore has no State religion. However, it has developed over the years its own unique concept of secularism that is fundamentally different from the parallel American concept of secularism requiring complete separation of church and state, as also from the French ideal of laicite.8 Despite the clear incorporation of all the basic principles of secularism into various provisions of the Constitution when originally enacted, its preamble did not then include the word secular in the short description of the country, which it called a \"Sovereign Democratic Republic.\" This was, of course, not an inadvertent omission but a well-calculated decision meant to avoid any misgiving that India was to adopt any of the western notions of a secular state. Twenty-five years later-by which time India's peculiar concept of secularism had been fully established through its own judicial decisions and state practice, the preamble to the Constitution was amended to include the word \"secular\" (along with \"socialist\") to declare India to be a \"Sovereign Socialist Secular Democratic Republic.\"9 This Article briefly states and explains the constitutional, statutory, and judicial framework of India's religion-state relations, and the unique balance that is found in that framework between secularism and freedom of religion-namely that, in India, the law of the land determines the scope of religion in society; it is not religion that determines the scope of the law. Part II below explains the foundational role India's Constitution plays in its religion-state relations. Part III briefly looks into the legislative enactments and governmental mechanisms relating to or having a bearing on religious matters. Part IV illustrates how the courts have interpreted India's concept and principle of secularism and religious freedom. II. CONSTITUTIONAL FOUNDATIONS Constitutionally, India is a secular nation, but any \"wall of separation\" between religion and state exists neither in law nor in practice-the two can, and often do, interact and intervene in each other's affairs within the legally prescribed and judicially settled parameters. Indian secularism does not require a total banishment of religion from the societal or even state affairs. The only demand of secularism, as mandated by the Indian Constitution, is that the state must treat all religious creeds and their respective adherents absolutely equally and without any discrimination in all matters under its direct or indirect control. In th","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115161230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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