Writing in (1988) California Management Review 124, Manuel Velasquez and Gerald Cavanagh focuses on the  1986, book-length,  “letter” by the Catholic Bishops of the US on moral issues, particularly social justice, posed by the economy. It outlines the drafting process for the letter, which began as an explicit balancing of earlier criticism of Marxism with a similar assessment of Capitalism, but evolved into a more pragmatic consideration of the US economy in practice.

One of the factors of the first draft that attracted criticism was the inclusion in the letter of specific policy proposals, with the National Review considering that their inclusion led to the bishops “inflicting severe wounds on the credibility of their Church [and] squandering their spiritual capital”; and conservatives criticising this part of the letter as being outside the competence of the bishops – being economic rather than theological. Velasquez and Cavanagh point out that part of the impact of the letter was a redefining of some issues as “moral issues – and therefore as issues on which the Church has a right to speak – topics (such as employment, world trade, farm policy, poverty and collaboration) that were being discussed in public forums largely as economic issues”.

The Bishops may have attempted this redefinition, but an obvious reaction is to ask whether they made it stick. My own work on the contribution of the Lord Bishop of Sodor and Man to debates in the Manx Tynwald found that the areas of special expertise that the Bishop was seen as contributing were on technical issues of the Anglican Church, and as a spiritual guide on “moral issues”. These were defined fairly narrowly, and other members of Tynwald were quite keen to keep the Bishop within bounds. Another query is whether these categorisations are mutually exclusive – can an issue not be both a moral one and an economic one? One where the voice of the Bishops may reflect a particular specialism, but one which needs to be read, even by adherents, alongside those of economists?

In “Thinking about Australian Religious History” (1989) 15(3) Journal of Religious History 330 Bruce Mansfield argued for a particular understanding of the religious history of Australia. In particular, he argued that the religious history of European Australia began at the end of the desacralisation of the European world, so that Christianity in Australia had a “strongly intellectualised and institutional character”, that it was by and large a success story, and that there was, until very recent times, “the ambition of Christianising Australia”. As someone interested in religion and law, it’s the first and third parts of his argument that interest me.

Mansfield argues that we need to recognise that the Christianity that was taken to Australia was one where the Reformation, Counter-Reformation and Enlightenment had already happened. The resulting Christianity was “doctrinal, scriptural, individual, institutional”, and so perhaps particularly ill-equipped to engage with Aboriginal religion. It was also one where the denomination was a fact of religious, and public, life. This was the case even for the Anglican Church, which by the mid 1860s had emerged as a voluntary religious society and, to quote Cable, “a state or national church no longer”. So although Mansfield makes the case for a “Christian Australia” being key, it is a Christian Australia made up of Christian denominations.

This emphasis on the denomination is thought provoking. Are we seeing (or have we seen?) an “Australianisation” of church/state in the UK? How far are arguments around religion and law constructing the Church of England as a voluntary religious society, rather than a special state church, albeit in a state with a very high degree of toleration of other religious groups? Thinking about the development of same-sex marriage in the UK, the special position of the Church of England was framed as a technical problem about the status of Church law, with the rights of “the community” to decide where it stood on the issue taken for granted.

The focus on a particular type of religious experience is also interesting. I have a fairly longstanding concern that the legal understanding of “the religious” in UK and European law tends to be too neatly congruous with socially and demographically dominant paradigms. Mansfield doesn’t explore the implications of his point about the texture of Australian Christanity very far in this article, being more concerned to defend it from critics who may not recognise his description. He describes settlement during the time of traditional Christianity as “against historical sense”. But it’s an intriguing counterfactual. If the Christianity of the European settlers had been closer to what he sees as traditional, folk, Christianity tied to place and community, what would their relationship with Aboriginal religions have looked like?

In “Gender and religious work”, (2000) 61(4) Sociology of Religion  467, Zoey A Heyer-Gray begins her consideration with a wry note of surprise that she is still studying the sociology of religion having come into it as a side-road, doing field work on other peoples’ projects. She realised that her challenge would be to bring her primary concerns of gender and inequality to bear on “the very particular and unique context” of religion.  In exploring the religious work of women, she identifies as part of a broader tradition seeking to expand the concept of work beyond paid employment, and to make visible “invisible work”: that is work which may not be recognised as such, even by those who actually do the work. By doing so, feminist writers in this tradition seek to garner acknowledgement and respect for the work done by women, and lead to a more equitable division of tasks.

The core of this note is her framework for research, but she does report on qualitiative fieldwork carried out in three Christian sites in the US. She found that in across the three – a Catholic church, an independent Christian church, and a Southern Baptist church – women performed a similar array of tasks outside of the formal Sunday worship. In the formal Sunday worship, however, women were much more visible in the Catholic church than in the other two, with Heyer-Grey reporting that “Women did not perform any ‘public’ roles in these churches other than singing and/or playing an instrument”. She concludes with a call for more work:

“[T]he way in which something divine or sacred is in fact accomplished or captured by such a seemingly mundane process as “work” – and how this process is in turn gendered – remains to be explored”.

Indeed!

In “The arbitration of religious practice grievances” (1984) 39(2) Arbitration Journal 3, IB Helburn and John R Hill the authors reviewed 31 arbitration awards where arbitrators had to consider management responses to employee religious practices. I remember being disappointed that this was effectively a consideration of an aspect of employment law, rather than the difficult area of arbitration by religious organisations and individuals working within a religious framework. My mistake rather than the authors!

The cases reviewed largely fall into the categories of clashes between work obligations and manifestation of religion that you would expect – as the authors note, discrimination because of beliefs held simpliciter is not usually at issue. The exception to this was a quite substantial number of cases the authors categorise as “Unauthorised leaves of absence for ministers”. in one of the cases noted, the employee was suspended for excessive absences when he preached at funerals of members of his church. This  got me thinking about how far we should give added weight to a religious “officials” interests over that of other members of their community. We could see the individual burden on a minister as being greater, but also see it as a burden on the (non-employee) religious community. Should this be given weight in assessing the proportionality or reasonableness of the restriction?

The willingness of US journals to publish only slightly amended versions of colloquia provided space for scholars to float ideas, or deal with fairly low-key points, before the development of the blog. The contribution by Michael S Greve, in (1992/3) Annual Survey of American Law 563, would make a rather good – if long – blog post today.

Greve’s central point is that advocates of hate crime in the US are rank hypocrites. Greve, with very broad strokes, sees “them” as being soft on crime, except when it comes to hate crime; intending to target beliefs or attitudes, while denying that the law does this; and much less vigilant on the dangers of hate crime than they are of other state measures. On the last point Greve is concerned that racial hate crimes will be applied disproportionately to different racial groups, and that they will encourage prosecutors to “dig around in defendants’ personal lives for evidence of bigotry” (at 565). The risks of this sort of investigation, Greve argues, would be of enormous concern to the ACLU in any other context.

Having lambasted supporters of hate crime for their hypocrisy, Greve suggests that a much more intellectually serious way to support hate crime would be to accept that it implicates First Amendment rights, but that the state has a compelling interest in restricting them. This approach does not appeal to supporters of hate crime laws because they are too invested in a particular perspective on the First Amendment – and I would add a particularly US perspective on the rights involved – to be able to take that approach. He ends with a call for a different debate:

“A plain admission that we will regulate and punish speech that is fundamentally evil would at least focus our collective attention on important and interesting questions – what it takes to run a free country, and what kind of people we want to be” (at 568)

I differ very substantially from Greve on the substance of his discussion; but his call for striking at the central questions, even when uncomfortable to do so, does resonate. The UK is, once again, reflecting on how to deal with religious capital that is used for ends which are contrary to the national interest (however, and by whoever, that is to be defined). It is tempting to try to reframe this as not involving religious interests and religious rights. How about a plain admission that it does, and a consideration of when and how far we should?

In this article, which appeared in (1997) 33(1) Gonzaga Law Review 241, Credence Fogo-Schensul does not just argue for allowing holocaust denial laws, which is something of a challenge in the US context, but for an international law requirement that states have such laws. In part, Fogo-Schensul bases this on a reading of UN documents starting with the Charter, which leads to the conclusion that “the Holocaust is a juridical fact, under both treaty and customary international law” (at 255). The emphasis that the US gave – and gives – to freedom of expression does not take account of this, and to what Credence sees as the exclusion of Holocaust denial from international law’s freedom of expression norms.

Fogo-Schensul covers a lot of ground, and much of the discussion is really about inciting racial and religious hatred – an area where, it must be agreed, the US is something of an outlier. A case for Holocaust denial being – distinctively and in itself regardless of the motive of the denier – criminal is not really made.  There are flickers, for instance a discussion of the idea of mental harm to minorities, but these are not sustained. Fogo-Schensul also seems more relaxed with the idea of “juridical facts” determining historical content, and punishing people for disagreement with these juridical facts, than I could ever be. This to me is the difficulty with laws criminalising holocaust denial. Perhaps holocaust denial is intended as a place-holder for extreme hatred of those groups who suffered during the holocaust, but others may deny the holocaust with a different motive. Consider Bertrand Russell’s “Five Minute Hypothesis” – which for the absolute avoidance of doubt I should stress he found neither a convincing description of reality, nor interesting:

“There is no logical impossibility in the hypothesis that the world sprang into being five minutes ago, exactly as it then was, with a population that “remembered” a wholly unreal past. There is no logically necessary connection between events at different times; therefore nothing that is happening now or will happen in the future can disprove the hypothesis that the world began five minutes ago”.

The “five minute hypothesis” is an extreme, but some religious groups have argued, and continue to argue, for the creation of the world by a divine being which has included signs of much greater age. Readers who know of an extreme young-Earth community who teach that the world was created after 1945 should get in touch. And what of those groups who teach that the material world is illusory?

I am being mischievous – supporters of holocaust denial laws would argue that they require a much more specific sort of denial than I posit above. But I remain nervous of law being used to stifle disagreement with “juridical facts”.

One of the things I love about law and religion is the ubiquity of the subject. Religion pervades every area of human life, and so can be relevant to every sort of legal interaction. That is one of the reasons I remain nervous about the development of a canon of the subdiscipline of law and religion. Religious freedom law around Article 9 and the Human Rights Act is extremely important; as is equality law around the Equality Act. But there is more to the interaction of religion and law than this. So my eye is always caught by articles appearing off the beaten track for the field – for instance this case-note in (1995) Farm Tax Brief February 14.

The case-note deals withi R v Sheffield Housing Benefits Review Board (The Times, 28 December 1994). The case concerned members of a religious group, which required its adherents to live in community houses on terms which included obligations of a “spiritual and domestic nature”. If the tenancy was “otherwise than on a commercial basis”, housing benefit would not be paid. Blackburne J held that in assessing whether there was a commercial basis, it was important to look at the arrangements as a whole, and not just to look at the rent payable. This approach is endorsed by the Farm Tax Brief case-note writer, who suggests that it may usefully be applied to areas more directly relevant to their readership, especially around inheritance tax where “it is sometimes necessary to be able to show whether a transaction, particularly one within the family, has been undertaken on what might be regarded as commercial terms”.

In “Body Politic or Bodies of Culture? How Nation-State practices turn citizens into religious minorities” (1998) 10(3) Cultural Dynamics 263, Gerd Baumann argues that South Asian settlers in Britain, although enjoying full civic status, were not experiencing full integration. In particular, based on fieldwork in London, Baumann argues that the British approach “leads to the encorporation of religious congregations into putative bodies of culture, and it delays the incorporation of new citizens into the body politic”. Baumann uses encorporation to mean the “transformation of traditions and currents into putative bodies of people”,with the possibility that they will then be depicted as “an autonomous body placed beyond and outside the relevant boundaries”.

The theoretical focus of the piece is secularisation theory, and Baumann is robust in his attacks on some of those writing at the time. This hasn’t perhaps aged very well – not because it is weak, but because so much has happened.  But one of the most valuable things about this short, punchy, article, is the take on British legal and adminstrative practices. I’ve read and reread Mandla v Dowell Lee, but hadn’t thought to describe the famous test of Lord Frazer as “pseudo-anthropological”; to consider whether the creation of Community Religions Councils were “strategies of domination as well as the creation of new categorical identities”; or see mobilising temples and churches to encourage those entitled to British citizenship to claim it before a change in the rules as “the paradox of a modern nation-state drawing upon religious institutions to perform its most basic foundational act, the creation of citizens”.

I’ve been thinking about comparative Church/State relations. As an outsider, I can look at France or the US, and see something foundational to the way those legal systems look at church/state relations. Doing the same for my own jurisdiction is more difficult. Baumann’s “enculturation” has something to offer, perhaps even shorn of its firm condemnation of what it describes.

In “Divine accommodations: Religion in the workplace” (2000) Risk Management October 12 William Atkinson takes a practitioner take on religion in the US workplace. He sees religion as the next fight for rights in the US workplace, following on waves of race, gender, and sexuality. Employers face more challenges as the general population become more religious, more diverse in their religion, and more aware of their legal rights.

Atkinson argued that there were three challenges on the way. Firstly, determining religious accommodation. Secondly, defining religious freedom of speech. Thirdly managing a religion-based company. From 2000, Atkinson seems to me have largely nailed  hot topics, missing from his explicit list only broader challenges of competing rights.

In this magazine length article, Atkinson includes a very short case study of Intel, which sees itself as going well beyond legal duties in the area; and as a result does not face disputes around compliance with the law. I was reminded of the idea in Jewish law of khumra – a rule that exceeds the bare requirements of halakha – based on Deuteronomy 22:8: “When you build a new house, make a parapet around your roof so that you may not bring the guilt of bloodshed on your house if someone falls from the roof”. To what extent does HR policy and training in an organisation deliberately seek to establish a khumra? In some instances, may they do so inadvertently because of an (understandable) nervousness about violating equality or religious freedom laws, and an assumption that an overly broad interpretation of the legal obligations of the business must be on the safe side?

In this article in (1982) 13 International Journal of Philosophy of Religion 103 Ian Walker considers Hume’s definition of a miracle as a violation of the laws of nature.

As part of this process, Walker expands out this definition, stressing that the violation needs to be non-repeatable as repetition would accord it some degree of regularity, and thus the possibility of according with the laws of nature. I’ve obviously been a legal academic far too long, as this instantly reminds me of constitutional conventions – violate them once and you may face a constitutional crisis; violate them often enough and they cease to be a constitutional convention.

The difficulty with claims of miracles, or have I have described them elsewhere, exceptional claims, is that the very framework by which we decide how to evalute them itself depends on assumptions which the miraculous cast into doubt – assumptions which legal actors are very likely to find more comfortable than the possibility of non-repeatable violations of the laws of nature. As CS Lewis put it:

“If immediate experience cannot prove or disprove the miraculous, still less can history do so. Many people think one can decide whether a miracle occurred in the past by examining the evidence ‘according to the ordinary rules of historical inquiry’. But the ordinary rules cannot be worked until we have decided whether miracles are possible, and if so, how probable they are. For if they are impossible, then no amount of historical evidence will convince us. If they are possible but immensely improbable, then only mathematically demonstrative evidence will convince us; and since history never provides that degree of evidence for any event, history can never convince us that a miracle occurred. If, on the other hand, miracles are not intrinsically improbable, then the existing evidence will be sufficient to convince us that quite a number of miracles have occurred.”

A party in a legal action sincerely seeking to rely upon the miraculous in their case may wish to reflect on the working out of this conundrum in  Duncan [1944] 1 KB 773, in the Court of Appeal.  Their legal advisor may want to unwind with the excellent Hellish Nell: Last of Britain’s Witches by M Gaskill.