There is no doubt that the situation in Europe is not good, but I hope that I
can add some clarity.
Two European States have established Churches; the United Kingdom and Greece
which grants privileges to these bodies. Other European States have recognised
religious entities which are funded; France has a clear division. There is no
uniform system.
The Blair government unleased a wave of legislation hostile to Judeo Christian
principles (same sex marriage, hostility to Christian speech, gender issues)
and he has triggered a US style 'culture wars' in the United Kingdom. There
is now considerable litigation on similar issues to first Amendment cases. The
arrested Christian preachers will sue the Police for violation of their freedom
of expression (Article 10) and freedom of religious expression (Article 9).
The tensions in the United Kingdom with the Muslim minority are as tense as I
have ever seen, primarily due to threats of violence from Islamists.
On a legal point:
The European Court has dealt with questions of access by (non established)
religious associations to resources on a basis of non-discrimination. Religious
associations cannot insist that the State establishes a system for the
collection and distribution of tax from members to religious associations (as
in Germany, Sweden and Austria). But if it chooses to do so, such a system must
be non-discriminatory.[1] This is not incompatible with differential
distributions of financial resources, so long as such differences reflect
'neutral' criteria such as the civil functions of a state church. Such civil
functions might be the conduct of marriages and burials, the maintenance of
buildings of historic value or the keeping of ancient public records.[2] The
extent of general contributions to the association for these functions must be
proportionate to their actual cost.
Ironically, the Anglican Church has a public function is marriage and is
subject to Constiutional/ Convention law (arguably) in this function.
Paul Diamond, barrister
--------------------------------------------------------------------------------
[1] Iglesia Bautista El Salvador v Spain No. 17522/90 72 DR 256.
[2] Bruno v Sweden No. 32196/96; Lundberg v Sweden No. 36846/97
----- Original Message -----
From: Marc Stern
To: Law & Religion issues for Law Academics
Sent: Tuesday, June 03, 2008 6:41 PM
Subject: RE: Drift of the Court on religion
But based on those subsidies, the UK has forbidden religious schools
receiving government aid to tell students that homosexual behavior is sinful
(although they can teach that the church is opposed to homosexual behavior).
And under its laws regarding sexual orientation equality, it has forbidden a
Catholic school to fire a headmaster (a lovely English term) who had a same
sex partner. Moreover, the British have at least proposed that religious
schools be required to accept a portion of students of differ faiths to avoid
religious segregation.( I don't know off hand whether the proposal was
adopted.)Thus, the question of whether the religious subsidies advance
religious freedom is more complicated than Alan's post suggests-even before we
get to the questioned of whether the nominal Christianity of public schools in
England is itself any boon to religion.
Marc Stern
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From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein,
Alan
Sent: Tuesday, June 03, 2008 1:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: Drift of the Court on religion
Sorry, Eugene. I can't help you on the question you asked about Justice
White. But on the question of whether Justice Scalia's arguments about the
Establishment clause are sound, I am somewhat perplexed by his apparent belief
that Europe is committed to the separation of church and state and that
religious expression is excluded from the public square throughout the
continent. I'm not an expert on comparative law - but, to cite just one
example, it certainly seems to me that European countries are far more likely
to permit government subsidies of religious schools and far more willing to
permit religious teaching and prayer in the public schools than the United
States.
Alan Brownstein
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 03, 2008 10:18 AM
To: Law & Religion issues for Law Academics
Subject: Drift of the Court on religion
I'm sure Justice Scalia is not credible to lots of people, just as any
Justice is not credible to lots of people. But I take it the question should
be whether his arguments about the Establishment Clause -- the question he
seemed to be discussing -- are sound, a matter that is logically quite
independent of whether one thinks his (and Justice Stevens', Rehnquist's,
Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound.
Incidentally, speaking of the drift of the Court on religion -- has
anyone studied why Justice White provided the fifth vote for the Smith
majority? He did originally vote with Harlan in dissent in Sherbert v. Verner,
but then seemed to accept the constitutionally compelled exemptions regime --
not joining, for instance, Rehnquist's and Stevens' expressions of skepticism
on the subject -- and in Bowen v. Roy took the most pro-claimant view of any
Justice. Yet in Smith he changed his view. Any thoughts on why he so
concluded? Was he, for instance, persuaded by his thirty years of experience
dealing with the constitutionally compelled exemptions regime that Scalia's
critique was correct? Or did he always take the view that the regime was
unsound and should be jettisoned at the first opportunity, but that while it
continued it should be enforced relatively rigorously?
Eugene
----------------------------------------------------------------------------
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad & Linda
Sent: Tuesday, June 03, 2008 5:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia Decreis Drift of Court On Religion
I'm not sure the author of the majority opinion in Employment Division V
Smith is the most credible voice to criticize the Court's handling of religion.
Brad Pardee
----- Original Message -----
From: Joel Sogol
To: Religionlaw
Sent: Monday, June 02, 2008 6:44 PM
Subject: Scalia Decreis Drift of Court On Religion
Scalia Decries Drift of Court On Religion - June 2, 2008 - The New York
Sun
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