“The niqab is incompatible with gender equality.” “Women are forced by the men in their families to wear the niqab.” “Wearing a niqab makes living together impossible.” This talk will examine such claims made by the majority to constrain the lives of a small minority. The rampant spread of legislation banning face veils globally has transformed niqab-wearing from a non-existent issue to a spectacular threat to the nation state. Even educated, sophisticated scholars and judges who claim to accept and even welcome diversity will “draw the line” at the niqab. Relying on interviews with niqab-wearing women from Ontario and Quebec, Bakht helps to refocus understandings of the niqab from the perspective of the wearer. Bakht then analyzes popular and legislative objections to the niqab, revealing their specious logic. By hearing some of the experiences of niqab-wearing women and analyzing objections and legal proscriptions of the niqab, the hope is that we might get to know niqab-wearing women and ourselves better.
Natasha Bakht is a full professor of law at the University of Ottawa and the Shirley Greenberg Chair for Women and the Legal Profession. Her research focuses on the intersection of religious freedom and women’s equality.Her new book In Your Face: Law, Justice and Niqab-Wearing Women in Canada (Irwin Law, 2020) analyzes niqab bans while also drawing on interviews with niqab-wearing women to reveal their complex identities and multiple motivations for dressing in this way.
U.S. officials who occupied Japan after World War II claimed that the defeated country totally lacked religious freedom. However, this tidy narrative masked a messy history. Japan’s 1889 constitution had guaranteed religious freedom, and over subsequent decades Japanese clerics had fiercely debated and vigorously defended the religious freedom clause. Yet even as Buddhists in Japan generally used religious freedom to secure privileges for themselves while excluding “foreign” religions like Christianity, Japanese Buddhists living in the U.S. Territory of Hawai`i tried and failed to get the American guarantee of religious freedom to work for them. For example, although the landmark 1927 Supreme Court case Farrington v. Tokushige upheld the right of Japanese Americans to educate their children at Buddhist-operated language schools, racist depictions of Buddhism as “un-American” made it impossible for the plaintiffs to use religious freedom law in making their case. Thomas juxtaposes competing claims about religious freedom in the Japanese and U.S. empires to show that religious freedom is never simply present or absent in any given polity, nor has “it” ever been just one thing in any time or place.
Jolyon Thomas is Assistant Professor and Interim Graduate Chair of Religious Studies at the University of Pennsylvania. His research on religion investigates media, law, politics, education, and capitalism in Japan and the United States. He is the author of Faking Liberties: Religious Freedom in American-Occupied Japan (University of Chicago Press, 2019) and Drawing on Tradition: Manga, Anime, and Religion in Contemporary Japan (University of Hawai`i Press, 2012).
This paper rethinks the notion of Indigenous sovereignty through the story of the Yurok Tribe of Northwest California and its ongoing efforts to heal the Klamath River, to which they refer as their “bloodline.” These struggles have taken different forms in different times in history: they range from the fish wars of the first half of the twentieth century, through administrative appeals to remove dams from the river in the early 2000s, to the recent resolution of the Yurok Tribal Council to recognize the Klamath River as a rights-bearing person.
Sovereignty means, in federal Indian law, the recognition of the Yurok treaty rights by US courts; but, perhaps more meaningfully, to the nation itself sovereignty means the ability of the Yurok Tribal Court to make decisions on Yurok everyday life based on traditional values, and with close attention to the river and its fish, that play a vital role in the economic, cultural, and spiritual identities of the Yuroks.
Dana Lloyd is a postdoctoral research associate at the John C. Danforth Center on Religion and Politics at Washington University in St. Louis. She holds a PhD in Religion from Syracuse University and an LLM from Tel Aviv University’s Faculty of Law. She is currently working on a book manuscript, entitled A Hollow Freedom, on the US Supreme Court case Lyng v. Northwest Indian Cemetery Protective Association (1988).
In collaboration with:
The Environmental Justice and Sustainability Clinic, Osgoode Hall Law School, York University
The LRST is supported through the funds of the York Research Chair in Pluralism and Public Law
Though typically translated as “Jewish law,” the term “halakhah” is not an easy match for what is usually thought of as law. This is because the rabbinic legal system has rarely wielded the political power to enforce its many detailed rules, nor has it ever been the law of any state. Even more idiosyncratically, the talmudic rabbis claim that the study of halakhah is a holy endeavor that brings a person closer to God—a claim no country makes of its law. In this talk, and drawing on his recent book, Saiman will trace how generations of rabbis have used concepts forged in talmudic disputation to do the work that other societies assign not only to philosophy, political theory, theology, and ethics but also to art, drama, and literature. In the world of halakhah everything is law, but law is also everything, such that even law that serves no practical purpose can provide surprising insights into timeless questions about the very nature of human existence.
Chaim Saiman is a Professor of Law at Villanova University. Saiman’s work focusses on Jewish law, insurance law, and private law. He has served as a visiting professor at Harvard, the University of Pennsylvania, Hebrew University, and the University of Toronto, and has been appointed as an arbitrator on rabbinical courts and an expert witness in insurance law and Jewish law in federal courts. He is the author of Halakhah: The Rabbinic Idea of Law (Princeton, 2018).
Religion has become an increasingly salient marker of symbolic and social boundaries in nation-states across the world. In both immigration and post-colonial settings, state authorities and social activists struggle over the public recognition of religious differences and the accommodation of religious minorities. These struggles, whether inside or outside the courtroom, widely draw upon scripts of religious freedom and minority rights as institutionalized in constitutional and international law. In an attempt to historicize neo-institutional world polity theory, this paper scrutinizes the transregional entanglements in which these scripts emerged. Drawing on a relational dataset of bilateral treaties in the long 19th century, it describes how norms of religious freedom and minority rights, spreading through the network of sovereign states, were universalized and institutionalized in international law. It shows that this process was highly influenced by power configurations between empires, nation-states and social movements, including missionary organizations, ethno-religious minorities, and transnational associations. As these configurations have left traces in competing interpretations of global scripts, their knowledge is indispensable for understanding contemporary politics of religious difference.
Matthias Koenig is Full Professor of Sociology at the University of Göttingen and Max Planck Fellow at the Max Planck Institute for the Study of Religious and Ethnic Diversity. He has held visiting positions at the École Pratique des Hautes Etudes in Paris, the University of Toronto, the University of Michigan, and Harvard University. He has published widely on sociological theory, human rights, religion and immigrant integration; his most recent book is Religion and National Identities in an Enlarging Europe (co-edited with W. Knöbl & W. Spohn, Palgrave 2015).
What does legal activism tell us about the way Islamic family law is constructed and applied in the Middle East? Over the last decades, the problem of gender-based custody allocation has sparked intense mobilizations across the region. In Lebanon, Sunni and Shi‘i citizens led two parallel campaigns to modify the shari‘a-derived norms enforced in custody disputes. Their efforts produced perplexing results: while Sunnis Lebanese succeed in modifying the legislation, the Shi‘a failed to bring about even a modicum of change. How could two parallel campaigns mobilized around the same issue, launched in the same country, and executed at the same time produce such opposite results? By following courses of action taken by Sunni and Shi‘i activists, paying attention to their mistakes, failures and achievements, we gain a new perspective on the making of religion-based family law, and its entanglement with the legal grammar of secularism.
Jean-Michel Landry is a Banting Postdoctoral Fellow at McGill University and an affiliated researcher at the Institut Français du Proche-Orient. He graduated from the University of California, Berkeley in 2016. His work focuses on secularism, religion, gender and political anthropology. He received the 2016 Best Dissertation Award from the Association of Middle East Anthropology for his dissertation, entitled The Practice of Shi‘i Jurisprudence in Contemporary Lebanon.
In Political Theology, Carl Schmitt wrote, “Every political idea in one way or another takes a position on the ‘nature’ of man and presupposes that he is either ‘by nature good’ or ‘by nature evil.'” Liberal political theory rejects the assertion that there is such a need “to take a position.” There is no need for a metaphysical predicate, because people are good enough to agree on reasonable terms by which to live together politically. In this talk, I recover a meaning for Schmitt’s line. and thereby demonstrate the continuing need for political theology. Schmitt had hold of the important idea that in law the most important decision precedes, rather than follows, interpretation. Decision is the condition of interpretation, not because morality precedes politics, but because every interpretation must take a position on the relationship of freedom to order. We must decide whether law is project or system, whether the sovereign is transcendent or immanent. A transcendent popular sovereign takes up law as a project; animmanent popular sovereign expresses law as system.
Paul Kahn is Robert W. Winner Professor of Law and the Humanities, and Director of the Orville H. Schell. Jr. Center for International Human Rights at Yale Law School. Kahn works in the areas of constitutional law and theory, international law, cultural theory and philosophy and is the author of numerous books, including Political Theology: Four New Chapters on the Concept of Sovereignty (Columbia. 2011) and Making the Case: The Art of the Judicial Opinion (Yale, 2016).
Standing near the summit of Mauna Kea, two stone ahu (altars) are sites of contemporary Native Hawaiian religious vitality. The State of Hawai`i, however, has a problem with the ahu. Specifically, they sit on the proposed site of a $1.4 billion dollar telescope project and were ritually constructed in the course of protest actions against the project in 2015. The State has deemed the altars “merely political” and therefore not deserving of consultative consideration or protection. Now, as part of their ongoing effort to protect the mountain, some Hawaiian petitioners are challenging the State in the Supreme Court, insisting that the altars are manifestations of a long-held tradition.
Johnson will address this dispute, including his role as a witness in it, asking: What can be learned from cases wherein modern conceptions of jurisdiction and static notions of religion conflict with place-based forms of religious expression, especially those that emerge in protest settings? Johnson will sketch several comparative examples of such impasses, including the role of prophecy at Standing Rock. His presentation will conclude with an invitation to the audience to think about implications of such cases for Canadian contexts.
Greg Johnson is Associate Professor of Religious Studies and Interim Director of the Center for Native American and Indigenous Studies at the University of Colorado. Johnson’s work focuses on the intersection of Indigenous traditions and law, with attention to repatriation, burial protections, and sacred land claims in Hawai`i and American Indian contexts. He is co-editor of the Handbook of Indigenous Religion(s) (Brill, 2017).
Asylum seekers around the world frequently base their claims for protection on religious conversion leading to persecution. This raises a number of difficult issues, including how courts and tribunals understand religious conversion, how they assess available country of origin information, review the contents of religious convictions, and distinguish between sincere and insincere conversions. More generally, it raises the issue of the relationship between freedom of religion or belief in international law and religious persecution under the 1951 Refugee Convention. This talk provides an overview of these issues, drawing on a case study of 70 appellate court cases on asylum claimants alleging religious conversion in Norway and Canada between 2010 and 2015.
Helge Årsheim is a Post-Doctoral Fellow at The University of Oslo. His research explores the ways in which religion travels across different levels of governance in international and domestic legislation and jurisprudence. His first book, Making Religion at the United Nations, will be published by DeGruyter in 2018.
This paper will argue that the U.S. government has usually interpreted religious freedom to protect institutions and frequently ignored the interests of religious individuals. Interpreting the Free Exercise Clause to protect religious institutions’ rights against their members ignores the experience of the earliest Americans. Allowing the courts to enforce a rule that automatically favors religious institutions over their members is at odds with the early history of liberty of conscience.
This talk will look at two examples of the courts privileging institutions over individuals. First, the ministerial exception allows church employees’ claims against their employers to be dismissed without lawsuit. Second, RFRA (the Religious Freedom Restoration Act) permits religious employers to deny full health insurance coverage to their employees. The talk then explores the alternative, individual approach to law and religion, which the courts should favor in the future.
Leslie C. Griffin is the William S. Boyd Professor of Law at UNLV’s Boyd School of Law. She holds a Ph.D. in Religious Studies from Yale University and a J.D. from Stanford Law School. The fourth edition of her textbook, Law and Religion: Cases and Material, was published recently by Foundation Press. It is described at http://www.griffinlawandreligion.com/.