Law, Religion, and Freedom: Conceptualizing a Common Right: A New Book Considers Issues Critical to Our Times

Donlu Thayer is a Senior Fellow at the International Center for Law and Religion Studies. Before her retirement at the end of 2019, she was the Center’s Publications Director. This blogpost is modified from Thayer’s Introduction to Law, Religion, and Freedom: Conceptualizing a Common Right, which she edited with Cole Durham and Javier Martínez-Torrón, recently released by Routledge as part of its ICLARS Series on Law and Religion.

In September 2016, some 150 international experts in law and religion from 37 countries met at St. Hugh’s College in Oxford for the fourth conference of the International Consortium for Law and Religion Studies (ICLARS). The event was co-sponsored by the International Center for Law and Religion Studies (ICLRS) of BYU Law School, by the Religion, Law and International Relations Programme of the Centre for Christianity and Culture of Regent’s Park College, Oxford, and by the University of Milan.

The conference was organized with attention to the theme ‘Freedom of/for/from/within Religion: Differing Dimensions of a Common Right?’  Two books were developed from papers delivered at the conference and from subsequent conversations related to the theme: Religious Freedom and the Law: Emerging Contexts for Freedom for and from Religion, edited by Brett Scharffs, Asher Maoz, and Ashley Woolley, and the book introduced here, which provides conceptual frameworks for and queries aspects of the theme.

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‘Because of Sex’: The Coming Battle between the Free Exercise Clause and the Equality Act

Christine M. Venter is a Teaching Professor at Notre Dame Law School and Affiliated Faculty in Gender Studies at the University of Notre Dame

The Equality Act has had a long and arduous history in its quest to become law. The Act was first introduced in 1974 by Congresswoman Bella Abzug, who was determined to end discrimination on account of “sex, marital status, and sexual orientation” in employment, housing, and public accommodations. Although that effort failed, the Act was reintroduced in 2019 and passed the House by a vote of 276 in favor to 173 opposed. Under the leadership of Mitch McConnell, the Senate declined to move it forward for a vote.

Enter the Supreme Court, and Justice Gorsuch’s majority opinion in Bostock v. Clayton County, in June 2020, that Title VII’s prohibition on discrimination “because of … sex,” extended to sexual orientation and gender identity. Although the Court specifically limited its analysis to Title VII, focusing only on the employment discrimination claims based on sexual orientation and gender identity that were before the Court and not on any other area of federal law, both supporters and opponents of equality for the LGBTQ+ community were quick to question the case’s impact.

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In Pursuit of Criminal Accountability for “Grievous Religious Persecution”

Werner Nicolaas Nel is a senior lecturer in law at the University of Johannesburg, South Africa, and author of the book Grievous religious persecution: A conceptualisation of crimes against humanity of religious persecution

Introduction

Particular incidences of religious persecution are, because of their scale, severity, and discriminatory motivation, so heinous that they result in severe deprivations of fundamental human rights and are justifiably categorized as crimes against humanity of religious persecution, coined “grievous religious persecution”. In recent years several situations emerged of mass-discriminatory atrocities committed against communities based on their religious beliefs, such as the Yazidis in Iraq, Christian minorities in the Middle East and Nigeria, and Muslim Rohingyas in Myanmar.

Given the inviolability of human dignity, such occurrences have justifiably generated a global moral outcry, demanding that the international community properly address such grave injustices and end impunity. Contrary to the current political climate of resignation and collective cynicism regarding the aspirations of the International Criminal Court (ICC), I argue that international criminal law may proceed in representation of the conscience of humankind by holding criminally accountable, those responsible for religious persecution, and help prevent future occurrences of these crimes.

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