Law and Religion

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Law and Religion

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Title: Law and Religion

1
Law and Religion

Religion, State and Constitutionalism

2
Learning Outcomes

To explain the concept of Constitutionalism
To compare how the religions see
Constitutionalism
To identify how religion has been incorporated
in Constitutions
To examine what is the possible role of Religion
in the building of Constitutionalism
To analyze the factors that determine the
specific role that will be played by a religion
in a particular state
To analyze whether religion is needed in
sustaining Constitutionalism
To examine the status of religion in a state that
practices Constitutionalism
To determine the relationship between
Constitutionalism, Pluralism and Secularization

3
Issues

The Concept of Constitutionalism
How the religions see Constitutionalism
Religion in Constitutions
Religionalization of the State
Constitutionalism and Fundamentalism
Role of Religion in the building of
Constitutionalism
Religion and Sustainability of Constitutionalism
Constitutionalization of Religion
Constitutionalism and Pluralism
Constitutionalism and Secularization

4
Constitutionalism

(1) Governmental powers are all regulated by
pre-determined rules.
(2) Powers of the government (executive,
legislative and judicial) are separated with
mechanism of check and balance.
(3) State authority is decentralized and
distributed between central, regional and local
institutions.
(4) Persons entrusted with legislative and
executive powers of the government are selected
through democratic election.
(5) A Bill of rights provides protection of basic
human rights and fundamental freedoms.

5
Constitutionalism and Religion

What caused this notion of Constitutionalism be
widely accepted as the ideal form of State at
modern age?
How far Religion has influenced the development
and acceptance of this theoretical notion of
Constitutionalism?
Is the concept of Constitutionalism compatible
with Religion?
How far Religion has participated in the actual
state building of Constitutionalism?

6
Constitutionalism and Religion

(5) What is the role of religion in
constitutional change toward the building of a
state of Constitutionalism?
(6) To sustain Constitutionalism, do we need
Religion or which understanding of Religion?
(7) How Constitutionalism can accommodate
Religion or how Religion can be
constitutionalized?

7
Christianity and Constitutionalism

Christian theology as the historical root
More Christian states are states of
constitutionalism
But will this Christian root cause its
non-acceptance by non-Christian and non-western
states?
Can Constitutionalism be justified on reason and
rationality?

8
Islam and Constitutionalism

Incompatible? alternative reading?
The Quran does not mention constitutionalism,
but human rational thinking and experience have
shown that constitutionalism is necessary for
realizing the just and good society prescribed by
the Quran.
An Islamic justification and support for
constitutionalism is important and relevant to
Muslims. Non-Muslims may have their own secular
or other justifications. As long as all are
agreed on the principle and specific rules of
constitutionalism, including complete equality
and non-discrimination on grounds of gender or
religion, each may have his or her own reasons
for coming to that agreement.
An-Naim, Abdullahi A.,

9
Hinduism and Constitutionalism

Tension caused by various factors
1. Difficulty in defining Hinduism
-allowing the co-existence of caste system, the
most hierarchical form of society, with
constitutionalism
-not just that constitutionalism is consistent
with Hinduism but that Hinduism requires a
commitment to constitutionalism

10
Hinduism and Constitutionalism

Tension caused by various factors
2. Encounter with colonialism
-western ideas including constitutionalism are
legitimized in Hindu terms for failing to claim
as its own certain values identified with
progressive modernity, Hinduism would remain
vulnerable both to external and internal
challenges
-rise of nationalism aiming at throwing off
colonial subordination and building a Hindu
identity

11
Hinduism and Constitutionalism

Tension caused by various factors
3. Ambivalent about politics
-constitutionalism may save the very large
historically marginalized groups
-pre-modern Hinduism on the whole remained bound
up with the phenomenon of caste

12
Hinduism and Constitutionalism

Tension caused by various factors
4. Absence of centralised power structure in
Hindus history and the state building in modern
age
-constitutionalism is inevitable as it is the
only possible option to fulfill the need of
political legitimacy
-make it easier to experiment new ideas like
constitutionalism
-constitutionalism is needed to reform Hinduism

13
Hinduism and Constitutionalism

Tension caused by various factors
4. Absence of centralised power structure in
Hindus history and the state building in modern
age
-Hindu identity is coming in many ways to rest
upon a sense of resentment
-complex modern conditions cause Hindu to
question the meaning and relevance of their
religious tradition
-seek enemies without rather than answers within
- puts minorities at risk and threatens
constitutionalism

14
Buddhism and Constitutionalism

not concern but may be compatible
the conception of the collective, social good to
which we have seen Buddhism is committed, if it
turns out that liberal democracy or
constitutionalism is the best means to achieve
those goods, it follows straightforwardly from
Buddhist principles and from the principle upaya
of that liberal democracy is the preferred
Buddhist social framework.
Garfield Jay, L.,

15
Religions and Constitutionalism

Stepan Alfred Twin Tolerations
Religious institutions should not have
constitutionally privileged prerogatives
Individuals and religious communities must have
complete freedom to worship privately. In
addition, as individuals and groups, they must be
able to advance their values publicly in civil
society and to sponsor organizations and
movements in political society, as long as their
actions do not impinge negatively on the
liberties of other citizens or violate democracy
and the law. No group in civil society
including religious groups can a priori be
prohibited from forming a political party.

16
Religion in Constitutions

The state is a secular state. (France, Turkey)
There should be no state religion. (Spain)
(3) There is a separation of church and state.
(USA, Hungary, Portugal, Poland)
(4) A religion is given a preferred status.
(Thailand, Greece)
(5) Beliefs of a religion are expressly stated in
the constitution. (Ireland, Canada, Australia,
Indonesia)
(6) A religion is recognized as the state
religion. (Norway, Denmark)

17
Religion in Constitutions

(7) Political leaders are required to be the
believer of a religion. (Algeria, Nepal,
Thailand)
(8) Constitutional provision reflects broad
tenets and ideals of a religion. (Ireland)
(9) The state is proclaimed as a religious state
(Hindu State in Nepal or an Islamic State in
Pakistan, Iran)
(10) Religious principles as a or the source
of law. (Syria, Egypt, Afghanistan, Iraq)

18
Religion in Constitutions

(11) Religious laws are applied to personal
matters of believers with a separate religious
court system to implement the religious laws.
(Nigeria)
(12) Religious rights of religious minorities are
recognized at various degrees. (Bangladesh,
Morocco, Iran, Libya)
(13) All laws must have a religious source.
(Saudi Arabia)

19
Religion against Constitutionalism

Islamization or religionization
(1) What are the different measures to implement
religionization?
(2) Is religionization compatible with
constitutionalism?
(3) Must it be more religious from the
perspective of that religion to implement
religionization?

20
Religion against Constitutionalism

Measures to implement religionization
establishing the Religion as the State religion
identifying Religion to be either a source or
the source of legislation
ideologizing the Religion to become a
comprehensive ideology that purports to solve
fundamental problems of modern government and
economics and to provide a general social theory
vesting all authority to the Divine in the
constitution

21
Religion against Constitutionalism

Measures to implement religionization
setting up a form of government that can reflect
the religious leadership (e.g. Iran.)
reviewing all existing legislation in the light
of the religious criteria followed by legal
changes
People not of the dominant Religion are inferior
within the State
(h) introducing laws that reflect certain
religious principles into the civil law (e.g. ban
on interest in sharia law) and criminal law (e.g.
apostasy, amputation of the hand, stoning, etc..)

22
Religion against Constitutionalism

Measures to implement religionization
(i) allowing judges in religious courts to apply
religious laws and override legal or even
constitutional principles on the basis of
religious law
(j) determining the status of women in accordance
with the religious principles even if that will
put women to an inferior status
(k) punishing people of that religious faith who
have deviated from the official orthodoxy

23
Religion against Constitutionalism

Measures to implement religionization
(l) limiting the freedom of people of other
religions to practice and manifest their
religious faiths (e.g. construction of worship
house, prohibition of proselytization, etc..) or
imposing stringent tests of religious purity that
people must pass before they can be considered
for many categories of jobs.

24
Religion against Constitutionalism

Religionization v. Constitutionalism
The fact that a religion is recognized as a
state religion or that it is established as
official or traditional or that its followers
comprise the majority of the population, shall
not result in any impairment of the enjoyment of
any of the rights under the Covenant, including
articles 18 freedom of thought, conscience, and
religion and 27 rights of members of religious,
ethnic and linguistic minorities, nor in any
discrimination against adherents to other
religions or non-believers.
Human Rights Committee, General Comment 22

25
Religion against Constitutionalism

Religionization v. Constitutionalism
A set of values that requires the backing or
protective intervention of political authority
is probably not worth preserving . values that
are upheld by virtue of state-imposed coercion
instead of personal conviction or individual
persuasion consequently forfeit their ethical
quality do not enhance the spiritual kingdom
they might seek to establish but, on the
contrary, deprive the society of its moral
fabric.
Van der Vyver, Johan D,

26
Religion against Constitutionalism

Religionization as more religious?
Islamic doctrines are being redefined and
transformed by the exigencies of adapting them to
the aims of the political programs of various
groups of Muslims and in the course of their
codification and application by governments of
nation-states. In particular, the ideologization
of Islamic law has led to the extension Islamic
doctrines into the political and economic spheres
where the classical sharia was undeveloped
Mayer, Ann Elizabeth,

27
Religion against Constitutionalism

The threat to constitutionalism is not religion
but fundamentalism
-fundamentalism is a movement that seeks to
gain control of the state in order to
resacralize or desecularize the state

28
Role of Religion in the Building of
Constitutionalism

Possible roles
(1) a countering-force as Religion supports or
legitimizes the existing authoritarian regime
(2) a source of motivation to participate in
Constitutionalism building
(3) a source of legitimacy for Constitutionalism
building
(4) a promoting force to build constitutionalism

29
Role of Religion in the Building of
Constitutionalism

Internal Factors
1.Theology
2. Church unified or decentralized
3. Leaders
4. Members believers and citizens

30
Role of Religion in the Building of
Constitutionalism

External Factors
Demographical any religious majority?
Geographical religious minority in a region?
Ideological dominant ideology compatible with
religion?
Social
Political
Economic
Cultural

31
Religion and sustainability of Constitutionalism

Sustainability of constitutionalism
-needs a certain kind of civic culture
-can the civic culture include religion?
-does it need religion?
-can it accommodate religion?
-how will it deal with religion?

32
Religion and sustainability of Constitutionalism

Habermas
-the civic culture that a constitutional state
needs has to thicker than just not to
overstepping legal boundaries in exercising
individual liberties
-it needs to have a view to promoting common good

33
Religion and sustainability of Constitutionalism

Habermas
- the market and bureaucracy have displaced the
social solidarity, i.e. the coordination of
action through values, norms and language use
oriented to reaching understanding
-postmetaphysical thinking is ethically modest
that it is resistant to any generally binding
concept of the good and exemplary life

34
Religion and sustainability of Constitutionalism

Habermas
-religious community preserve intact something
that has been lost elsewhere
-secularizing recovery of religious meanings

35
Religion and sustainability of Constitutionalism

Habermas post-secular society
-people with religious faith
-public recognition of their contribution to the
reproduction of desirable motives and attitudes
-renounce the claim to monopoly to structure a
form of life as a whole
-internalize constitutionalism in their beliefs
-may influence the society as whole through the
political public arena

36
Religion and sustainability of Constitutionalism

Habermas post-secular society
-people without religious faith
-accord an epistemic status to the people with
religious faith as not simply not irrantional
but reasonable
-not to deny that religious worldviews are in
principle capable of truth or question people
with religious faith to couch their contributions
to public discussion in religious language
-take part in translating religious language
into a publicly intelligible language

37
Religion in Constitutionalism

(1) What can be and should be the relationship
between the church and the state in a State of
Constitutionalism?
(2) Should there be a strict separation between
the church and the state?
(3) Should the state be religiously neutral?
(4) Should the state accommodate religious
practices as far as possible?

38
Religion in Constitutionalism

(5) How far should religious minorities be
accommodated in the state?
(6) Should religious personal laws be applied to
believers of that religion by a separate
religious court system within the state?
(7) Should religious minorities be allowed to set
up their own system of governance through setting
up a territorial autonomy?

39
Constitutionalization of Religion

Strict separation a secular public sphere and a
private sphere in which religion can flourish
freely
Neutrality Religion or a particular religion is
neither favoured or disfavoured
Accommodation religious practice is protected
from government interference and people of all
religions are subject to the least possible
violence to their religious conviction

40
Issue 1
How far will a person be exempted from a law of
general applicability that requires all persons
to take an action or refrain from taking an
action on the basis of his/her need to comply
with Religion?
41
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof or abridging the freedom
of speech, or of the press or the right of the
people peaceably to assemble, and to petition the
Government for a redress of grievances. Constitut
ion of the United States, The First Amendment
42
Issue 1A Accommodation in the Flag Salute Case
"Therefore, be it RESOLVED, That the West
Virginia Board of Education does hereby recognize
and order that the commonly accepted salute to
the Flag of the United States -- the right hand
is placed upon the breast and the following
pledge repeated in unison 'I pledge allegiance
to the Flag of the United States of America and
to the Republic for which it stands one Nation,
indivisible, with liberty and justice for all' --
now becomes a regular part of the program of
activities in the public schools, supported in
whole or in part by public funds, and that all
teachers as defined by law in West Virginia and
pupils in such schools shall be required to
participate in the salute, honoring the Nation
represented by the Flag provided, however, that
refusal to salute the Flag be regarded as an act
of insubordination, and shall be dealt with
accordingly." Resolution of the West Virginia
Board of Education
43
Issue 1A Accommodation in the Flag Salute Case
On whether Jehovahs Witness school children
could be punished for refusing to salute to the
national flag on the basis of their religious
belief... West Virginia Board of Education v .
Barnette 319 U.S. 624 (1943)
44
Issue 1A Accommodation in the Flag Salute Case
Struggles to coerce uniformity of sentiment in
support of some end thought essential to their
time and country have been waged by many good as
well as by evil men... Probably no deeper
division of our people could proceed from any
provocation than from finding it necessary to
choose what doctrine and whose program public
educational officials shall compel youth to unite
in embracing.Those who begin coercive
elimination of dissent soon find themselves
exterminating dissenters. It seems trite but
necessary to say that the First Amendment was
designed to avoid these ends by avoiding these
beginnings. There is no mysticism in the American
concept of the State or of the nature or origin
of its authority. We set up government by consent
of the governed, and the Bill of Rights denies
those in power any legal opportunity to coerce
that consent. Authority here is to be controlled
by public opinion, not public opinion by
authority. West Virginia Board of Education v
. Barnette 319 U.S. 624 (1943)
45
Issue 1A Accommodation in the Flag Salute Case
To believe that patriotism will not flourish
if patriotic ceremonies are voluntary and
spontaneous instead of a compulsory routine is to
make an unflattering estimate of the appeal of
our institutions to free minds If there is any
fixed star in our constitutional constellation,
it is that no official, high or petty, can
prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of
opinion or force citizens to confess by word or
act their faith therein. We think the action of
the local authorities in compelling the flag
salute and pledge transcends constitutional
limitations on their power and invades the sphere
of intellect and spirit which it is the purpose
of the First Amendment to our Constitution to
reserve from all official control. West
Virginia Board of Education v . Barnette 319
U.S. 624 (1943)
46
Issue 1B Accommodation unless with Compelling
State Interest
68-114. Disqualification for benefits. - Any
insured worker shall be ineligible for benefits
"(3) Failure to accept work. - (a) If the
Commission finds that he has failed, without good
cause (ii) to accept available suitable work
when offered him by the employment office or the
employer such ineligibility shall continue for
a period of five weeks (the week in which such
failure occurred and the next four weeks in
addition to the waiting period) as determined by
the Commission according to the circumstances in
each case South Carolina Unemployment
Compensation Act
47
Issue 1B Accommodation unless with Compelling
State Interest
On whether a member of the Seventh Day Adventist
Church could be denied unemployment compensation
benefits on the basis that her reason that she
could not work on Saturday as, her faith Sabbath
was not a compelling reason for refusing to
accept suitable work Sherbert v. Verner 374 U.S.
398 (1963)
48
Issue 1B Accommodation unless with Compelling
State Interest
We turn first to the question whether the
disqualification for benefits imposes any burden
on the free exercise of appellant's religion. We
think it is clear that it does. If the purpose
or effect of a law is to impede the observance of
one or all religions or is to discriminate
invidiously between religions, that law is
constitutionally invalid even though the burden
may be characterized as being only indirect. Here
not only is it apparent that appellant's declared
ineligibility for benefits derives solely from
the practice of her religion, but the pressure
upon her to forego that practice is unmistakable.
The ruling forces her to choose between following
the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one of
the precepts of her religion in order to accept
work, on the other hand. Governmental imposition
of such a choice puts the same kind of burden
upon the free exercise of religion as would a
fine imposed against appellant for her Saturday
worship. Sherbert v. Verner 374 U.S. 398 (1963)
49
Issue 1B Accommodation unless with Compelling
State Interest
We must next consider whether some compelling
state interest enforced in the eligibility
provisions justifies the substantial
infringement of appellant's First Amendment
right. It is basic that no showing merely of a
rational relationship to some colorable state
interest would suffice "only the gravest
abuses, endangering paramount interests, give
occasion for permissible limitation,No such
abuse or danger has been advanced in the present
case. The appellees suggest no more than a
possibility that the filing of fraudulent claims
by unscrupulous claimants feigning religious
objections to Saturday work might not only dilute
the unemployment compensation fund but also
hinder the scheduling by employers of necessary
Saturday workFor even if the possibility of
spurious claims did threaten to dilute the fund
and disrupt the scheduling of work, it would
plainly be incumbent upon the appellees to
demonstrate that no alternative forms of
regulation would combat such abuses without
infringing First Amendment rights. Sherbert v.
Verner 374 U.S. 398 (1963)
50
Issue 1C From Accommodation to Neutrality
Oregon law prohibits the knowing or intentional
possession of a "controlled substance" unless the
substance has been prescribed by a medical
practitioner. The law defines "controlled
substance" as a drug classified in Schedules I of
the Federal Controlled Substances Act. Persons
who violate this provision by possessing a
controlled substance listed on Schedule I are
guilty of a an offence. Schedule I contains the
drug peyote, a hallucinogen derived from the
plant Lophophora williamsii Lemaire.
51
Issue 1C From Accommodation to Neutrality
On whether two persons could be denied
unemployment compensation benefits on the basis
that their dismissal by a private drug
rehabilitation organization for they had ingested
peyote, a hallucinogenic drug, for sacramental
purposes at a ceremony of their Native American
Church was work-related "misconduct. Employment
Division v. Smith 494 U.S. 872 (1990)
52
Issue 1C From Accommodation to Neutrality
The government's ability to enforce generally
applicable prohibitions of socially harmful
conduct, like its ability to carry out other
aspects of public policy, cannot depend on
measuring the effects of a governmental action on
a religious objector's spiritual development. To
make an individual's obligation to obey such a
law contingent upon the law's coincidence with
his religious beliefs, except where the State's
interest is "compelling" -- permitting him, by
virtue of his beliefs, "to become a law unto
himself," contradicts both constitutional
tradition and common sense. Employment Division
v. Smith 494 U.S. 872 (1990)
53
Issue 1C From Accommodation to Neutrality
But to say that a nondiscriminatory
religious-practice exemption is permitted, or
even that it is desirable, is not to say that it
is constitutionally required, and that the
appropriate occasions for its creation can be
discerned by the courts. It may fairly be said
that leaving accommodation to the political
process will place at a relative disadvantage
those religious practices that are not widely
engaged in but that unavoidable consequence of
democratic government must be preferred to a
system in which each conscience is a law unto
itself or in which judges weigh the social
importance of all laws against the centrality of
all religious beliefs. Employment Division v.
Smith 494 U.S. 872 (1990)
54
Issue 1D From Accommodation Strikes Back to
Return of Neutrality
SEC. 3. FREE EXERCISE OF RELIGION PROTECTED. (a)
In General Government shall not substantially
burden a person's exercise of religion even if
the burden results from a rule of general
applicability, except as provided in subsection
(b). (b) Exception Government may substantially
burden a person's exercise of religion only if it
demonstrates that application of the burden to
the person-- (1) is in furtherance of a
compelling governmental interest and (2) is the
least restrictive means of furthering that
compelling governmental interest. Religious
Freedom Restoration Act of 1993 Overruled by
City of Boerne v. Flores 521 US 507 (1997)
55
Issue 2

How far should Law prevent aid be provided to
religious institutions for complying with their
Religion?

56
Issue 2A Neutrality in Aids to Religious schools
cases
Whenever in any district there are children
living remote from any schoolhouse, the board of
education of the district may make rules and
contracts for the transportation of such children
to and from school, including the transportation
of school children to and from school other than
a public school, except such school as is
operated for profit in whole or in part. When
any school district provides any transportation
for public school children to and from school,
transportation from any point in such established
school route to any other point in such
established school route shall be supplied to
school children residing in such school district
in going to and from school other than a public
school, except such school as is operated for
profit in whole or in part. New Jersey Laws
1941, c. 191, p. 581
57
Issue 2A Neutrality in Aids to Religious schools
cases
On whether the board of education, acting
pursuant to the statute could authorized
reimbursement to parents for their payment of
transportation of their children to Catholic
parochial schools which give, in addition to
secular education, regular religious instruction
conforming to the Catholic Faith. Everson v.
Board of Education 330 U.S. 1 (1947)
58
Issue 2A Neutrality in Aids to Religious schools
cases
The 'establishment of religion' clause of the
First Amendment means at least this Neither a
state nor the Federal Government can set up a
church. Neither can pass laws which aid one
religion, aid all religions, or prefer one
religion over another. Neither can force nor
influence a person to go to or to remain away
from church against his will or force him to
profess a belief or disbelief in any religion. No
person can be punished for entertaining or
professing religious beliefs or disbeliefs, for
church attendance or non-attendance. No tax in
any amount, large or small, can be levied to
support any religious activities or institutions,
whatever they may be called, or whatever from
they may adopt to teach or practice religion.
Neither a state nor the Federal Government can,
openly or secretly, participate in the affairs of
any religious organizations or groups and vice
versa. the clause against establishment of
religion by law was intended to erect 'a wall of
separation between Church and State. Everson v.
Board of Education 330 U.S. 1 (1947)
59
Issue 2A Neutrality in Aids to Religious schools
cases
We must consider the New Jersey statute in
accordance with the foregoing limitations imposed
by the First Amendment. But we must not strike
that state statute down if it is within the
state's constitutional power even though it
approaches the verge of that powerNew Jersey
cannot hamper its citizens in the free exercise
of their own religion. Consequently, it cannot
exclude individual Catholics, Lutherans,
Mohammedans, Baptists, Jews, Methodists,
Non-believers, Presbyterians, or the members of
any other faith, because of their faith, or lack
of it, from receiving the benefits of public
welfare legislation. While we do not mean to
intimate that a state could not provide
transportation only to children attending public
schools, we must be careful, in protecting the
citizens of New Jersey against state-established
churches, to be sure that we do not inadvertently
prohibit New Jersey from extending its general
State law benefits to all its citizens without
regard to their religious belief. Everson v.
Board of Education 330 U.S. 1 (1947)
60
Issue 2A Neutrality in Aids to Religious schools
cases
Measured by these standards, we cannot say that
the First Amendment prohibits New Jersey from
spending tax-raised funds to pay the bus fares of
parochial school pupils as a part of a general
program under which it pays the fares of pupils
attending public and other schools. It is
undoubtedly true that children are helped to get
to church schools. cutting off church schools
from these services, so separate and so
indisputably marked off from the religious
function, would make it far more difficult for
the schools to operate. But such is obviously not
the purpose of the First Amendment. That
Amendment requires the state to be a neutral in
its relations with groups of religious believers
and non-believers it does not require the state
to be their adversary. State power is no more to
be used so as to handicap religions, than it is
to favor them. Everson v. Board of Education
330 U.S. 1 (1947)
61
Issue 2B From Neutrality to Separation

State officials of Rhode Island were authorized
to supplement the salaries of teachers of secular
subjects in nonpublic elementary schools by
paying directly to a teacher an amount not in
excess of 15 of his current annual salary on the
following conditions
a nonpublic school teacher's salary cannot
exceed the maximum paid to teachers in the
State's public schools
the recipient must be certified by the state
board of education in substantially the same
manner as public school teachers
(c) the recipient must teach in a nonpublic
school at which the average per-pupil expenditure
on secular education is less than the average in
the State's public schools during a specified
period
(d) if this information indicates a per-pupil
expenditure in excess of the statutory
limitation, the records of the school in question
must be examined in order to assess how much of
the expenditure is attributable to secular
education and how much to religious activity
(e) the recipient must teach must teach only
those subjects that are offered in the State's
public schools
(f) the recipient must teach must use only
teaching materials which are used in the public
schools
(g) any teacher applying for a salary supplement
must first agree in writing not to teach a course
in religion for so long as or during such time as
he or she receives any salary supplements under
the Act.
The Rhode Island Rhode Island Salary Supplement
Act , 1969

62
Issue 2B From Neutrality to Separation
On whether the Acts were unconstitutional on the
background that 25 of the Rhode Islands
elementary students attended nonpublic schools of
which about 95 of whom attended Roman Catholic
affiliated schools, and 250 teachers at Roman
Catholic schools are the sole beneficiaries under
the Act Lemon v. Kurtzman 403 U.S. 602 (1971)
63
Issue 2B From Neutrality to Separation
Every analysis in this area must begin with
consideration of the cumulative criteria
developed by the Court over many years. Three
such tests may be gleaned from our cases. First,
the statute must have a secular legislative
purpose second, its principal or primary effect
must be one that neither advances nor inhibits
religion finally, the statute must not foster
"an excessive government entanglement with
religion." In order to determine whether the
government entanglement with religion is
excessive, we must examine the character and
purposes of the institutions that are benefited,
the nature of the aid that the State provides,
and the resulting relationship between the
government and the religious authority. Lemon v.
Kurtzman 403 U.S. 602 (1971)
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Issue 2C From Separation back to Neutrality
The purpose of this law is to ensure that all
children have a fair, equal, and significant
opportunity to obtain a high-quality education
and reach, at a minimum, proficiency on
challenging State academic achievement standards
and state academic assessments. Elementary and
Secondary Education Act of 1965
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Issue 2C From Separation back to Neutrality
On whether federal funds could be provided to
local educational agencies to support remedial
education, guidance, and job counseling to
students enrolled in private schools provided by
public school teachers on the background that 90
of the private schools within the jurisdiction
were sectarian. Agostini v. Felton 521 US 203
(1997)
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Issue 2C From Separation back to Neutrality
the general principles we use to evaluate
whether government aid violates the Establishment
Clause have not changed we continue to ask
whether the government acted with the purpose of
advancing or inhibiting religion, and the nature
of that inquiry has remained largely
unchangedLikewise, we continue to explore
whether the aid has the "effect" of advancing or
inhibiting religion. What has changed is our
understanding of the criteria used to assess
whether aid to religion has an impermissible
effect. Agostini v. Felton 521 US 203 (1997)
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Issue 2C From Separation back to Neutrality
As we have repeatedly recognized, government
inculcation of religious beliefs has the
impermissible effect of advancing religion. Our
cases however, modified in two significant
respects the approach we use to assess
indoctrination. First, we have abandoned the
presumption that the placement of public
employees on parochial school grounds inevitably
results in the impermissible effect of state
sponsored indoctrination or constitutes a
symbolic union between government and religion.
Second, we have departed from the rule that
all government aid that directly aids the
educational function of religious schools is
invalid. Agostini v. Felton 521 US 203 (1997)
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Issue 2C From Separation back to Neutrality
Not all entanglements, of course, have the
effect of advancing or inhibiting religion.
Interaction between church and state is
inevitable we have always tolerated some level
of involvement between the two. Entanglement must
be "excessive" before it runs afoul of the
Establishment Clause. The program does not
result in an "excessive" entanglement that
advances or inhibits religion.the finding of
"excessive" entanglement rested on three
grounds (i) the program would require "pervasive
monitoring by public authorities" to ensure that
public employees did not inculcate religion
(ii) the program required "administrative
cooperation" between the Board and parochial
schools Agostini v. Felton 521 US 203 (1997)
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Issue 2C From Separation back to Neutrality
and (iii) the program might increase the
dangers of "political divisiveness." Under our
current understanding of the Establishment
Clause, the last two considerations are
insufficient by themselves to create an
"excessive" entanglement. They are present no
matter where public funded services are
offered Further, the assumption underlying the
first consideration has been undermined. Because
of this risk pervasive monitoring would be
required. But we no longer presume that public
employees will inculcate religion simply because
they happen to be in a sectarian environment.
Since we have abandoned the assumption that
properly instructed public employees will fail to
discharge their duties faithfully, we must also
discard the assumption that pervasive monitoring
of teachers is required. Agostini v. Felton 521
US 203 (1997)
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Issue 2C From Separation back to Neutrality
It does not run afoul of any of three primary
criteria we currently use to evaluate whether
government aid has the effect of advancing
religion it does not result in governmental
indoctrination define its recipients by
reference to religion or create an excessive
entanglement. We therefore hold that a federally
funded program providing supplemental, remedial
instruction to disadvantaged children on a
neutral basis is not invalid under the
Establishment Clause when such instruction is
given on the premises of sectarian schools by
government employees pursuant to a program
containing safeguards such as those present here.
Agostini v. Felton 521 US 203 (1997)
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Constitutionalization of Religion

Accommodation at varying degrees
(1) a person be exempted from a law of general
applicability that requires all persons to take
an action or refrain from taking an action on the
basis of his/her need to comply with his/her
Religion (USA)
(2) the state administer a church tax for the
church (Germany)
(3) religious laws (mainly related with matters
concerning personal status like inheritance,
marriage, etc.) are applicable to members of that
religious organizations with civil effect in
civil law and are administered by religious
courts which form part of the juridical order of
the state. (India, Israel and Nigeria)
(4) political autonomy established on religious
ground
(Tibet?)

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Shachar Transformative accommodation

Paradox of multicultural vulnerability
-accommodating distinctive identity groups by
granting them special rights and exemptions, or
by offering them some measures of autonomy in
matters crucial to their self-definition ensure
the minority group to have an option to maintain
their nomos the normative universe in which law
and cultural narratives are inseparably related
-pro-identity group policies aimed at leveling
the playing field between minority communities
and the wider society allow systematic
maltreatment of individuals within the
accommodated group

73
Shachar Transformative accommodation

Solution 1 secular absolutist model
-based on strict separation between church and
state
-the state has the ultimate power to make
definition and regulation (e.g. family)
-can ensure at risk group members to have access
to all the rights and protections guaranteed to
all other citizens
-fails to address the identity-preserving issue
and may systematically discriminate against
minority cultures by tacitly enforcing the norms
of the dominant culture
-forces at-risk group members to confront an
ultimatum a choice between their rights or their
community

74
Shachar Transformative accommodation

Solution 2 religious particularist model
-grants religious and customary communities the
authority to pursue their own traditions
-state does not intervene
-recognized religious communities are vested with
legal power over matters personal status
-tends to compromise at-risk group members
citizenship status in order to safeguard a
cultural imperative
-creates a political incentive for religious
courts or minority group leaders to lessen the
disproportionate burden imposed on certain
sub-sections of members within these groups, or
even to take an interest in these members rights

75
Shachar Transformative accommodation

Solution 3A, 3B, 3C, 3D and 4
joint governance approach
Recognize that some persons will belong to more
than one political community and will bear rights
and obligations that derive from more than one
source of legal authority
Promises to foster ongoing interaction between
different sources of authority, as a means of
improving the situation of traditionally
vulnerable insiders without forcing them to
adhere to an either/or choice between their
culture and their rights

76
Shachar Transformative accommodation

Solution 3A Federal-style accommodation
-Power is allocated between several sub-units and
among different branches and levels of government
-religious community enjoys autonomy but subject
to basic constitutional principles without
threatening to dissolve the united multicultural
state
-places too much emphasis on territoriality and
significantly restricts the type and number of
religious groups that can seek accommodation
within its parameters
-not tailored to accommodate the needs of
minority culture that do not or cannot wish to
imitate the set of powers associated with a
semi-independent sub-unit, but which still seek a
level of jurisdictional autonomy that is greater
than mere non-discrimination (or public financial
support) of certain cultural practices

77
Shachar Transformative accommodation

Solution 3B Temporal accommodation
-certain life events crucial to the continuation
of the groups collective identity (e.g. creation
of family) are governed by group tradition as the
sole and definitive source of authority
-outside of these crucial moments, individual
must turn to state law
-boundaries of issues to be governed by the group
are uncertain
-fails to provide effective limiting principles
or regulatory mechanisms for detecting and
preventing harm that could later prove
irreversible
-fails to create an incentive for the group or
the state to establish some form of meaningful
and lasting cooperation that can provide systemic
answers rather than erratic crisis resolution, or
to ease the hardships that fall on group members
who must navigate between these two normative
systems

78
Shachar Transformative accommodation

Solution 3C Consensual accommodation
-permit individuals with multiple affiliations to
exercise choice and make their own determinations
about which legal authority-the state or the
group will have jurisdiction over their personal
affairs
-insensible to the possibility of direct or
indirect social pressures from the religious
community
-no guarantee that the parties have equal and
adequate knowledge about the consequences of
their choices
-frees the state from any responsibility for
in-group violations of group members citizenship
rights
-the group and the state are placed in direct
competition for the individuals loyalty

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Shachar Transformative accommodation

Solution 3D Contingent accommodation
-the state yields jurisdictional autonomy to
religious groups in certain well-defined legal
arenas, but only as long as their exercise of
this autonomy meets certain minimal state defined
standards.
-if a group fails to meet these minimal
standards, the state may intervene in the groups
affairs and override its jurisdiction by applying
the states residual powers
-difficult to resolve who is to set the minimal
standards and to ensure the standards are
consistent with accommodation of cultural
differences
Assign too little agency to individuals to affect
their jurisdictional environments unless or until
they have a grievance

80
Shachar Transformative accommodation

Solution 4 Transformative Accommodation
Assumptions
Group members living within a larger political
community represent the intersection of multiple
identity-creating affiliations.
In many real life circumstances both the group
and the state have normatively and legally
justifiable interests in shaping the rules that
govern behaviour.
The group and the state are both viable and
mutable social entities which are constantly
affecting each other through their ongoing
interactions.
It is in the self-possessed interest of the group
and the state to vie for the support of their
constituents.

81
Shachar Transformative accommodation

Solution 4 Transformative Accommodation
Allocating jurisdiction along sub-matter line
-contested social arenas (like education, family,
criminal justice, immigration, resource
deployment, environment) are internally divisible
into sub-matters multiple, separable, yet
complementary legal components
-example marriage demarcating function (change
of ones martial status or ones entitlement to
membership in a given community) and distribution
function (definition of rights and obligations
that married spouses are bound to honor, together
with a determination of the economic and
custodian consequences of the change to martial
status like divorce)

82
Shachar Transformative accommodation

Solution 4 Transformative Accommodation
No monopoly rule
-neither the group nor the state can ever acquire
exclusive control over a contested social arena
that affects individuals both as group members
and as citizens
-state and groups are structurally re-positioned
as complementary power-holders
-state and groups are forced to compete for
loyalty creating incentives for both to serve
their members better
-example marriage religious group may prevail
over the demarcating aspects of family and the
state may prevail over distributing aspects (or
the other way round)

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Shachar Transformative accommodation

Solution 4 Transformative Accommodation
Establishment of clearly delineated choice
options
-a member may opt-out of a jurisdiction of a
sub-matter if the jurisdiction power holder fails
to respond to members need or provide remedies
at carefully designed pre-defined points
-individual members of the group can bring
effective pressure on the group for changes and
encourage internal resolution by having the power
to switch their loyalty
-example if a religious group refuses to grant
divorce order, there is an established procedure
for the woman to appeal to state authority

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Shachar Transformative accommodation

Solution 4 Transformative Accommodation
I do not want to suggest that any mere legal
formulas or institutional designs can
single-handedly resolve the paradox of
multicultural vulnerability. Clearly no single
jurisdictional writ can fully encompass the
complex sets of tensions that are embedded in the
legal terrain of asymmetrical power relationships
within the state, between different constituent
communities, and among different groups of
individuals who share a given culture. Instead of
ignoring these complicated problems,
transformative accommodation recognizes these
intersecting power hierarchies as an inevitable
starting point. To overcome these problems,
transformative accommodation creates specific
institutional conditions which can perform as
incentives for group leaders themselves to reduce
internal restrictions.
Shachar, Ayelet, Multicultural Jurisdictions
Cultural Differences and Womens Rights
(Cambridge University Press, 2001).

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Shachar Transformative accommodation

Degree of Accommodation

Federal-style accommodation
religious particularist model
More
Temporal accommodation
Transformative Accommodation
Consensual accommodation
Contingent accommodation
secular absolutist model
Less
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Constitutionalism Beyond Religion