|The past several months have witnessed a number of significant developments in the field of law and religion. On February 19, 2013, Canada launched its Office of Religious Freedom, headed by Ambassador Andrew Bennett. Recognizing that globally, vulnerable religious groups are being subjected to increasing levels of persecution, the Office has been charged with “defending religious minorities, monitoring religious freedom and speaking out against egregious violations of freedom of religion.”
See http://www.international.gc.ca/religious_ freedom-liberte_de_religion/background_document.aspx. On June 24, the Foreign Affairs Council of the European Union adopted “EU Guidelines on the promotion and protection of freedom of religion or belief.”
These are designed to provide guidance to Europe’s external relations in shaping policy with respect to freedom of religion or belief (“FoRB”). The Guidelines reaffirm Europe’s commitment to “respecting, protecting and promoting freedom of religion or belief within their borders” and “to promote, in its external human rights policy, freedom of religion or belief as a right to be exercised by everyone everywhere, based on the principles of equality, non-discrimination and universality.” The document commits the EU and European countries to a number of concrete measures designed to strengthen FoRB, including providng for the monitoring and assessment of the religious freedom situation at country levels, encouraging implementation of relevant international instruments in political dialogue with partner countries, providing financial support for programs that strengthen FoRB, promoting FoRB in multilateral fora, and providing needed training for officials dealing with the issue. Along similar lines, the All Party Parliamentary Group on International Religious Freedom in the United Kingdom has recently released an important report: “Article 18: an orphaned right.”
See anorphanedright.net. Each of these documents, in various ways, underscores the importance of protecting FoRB as a matter of global policy.
At the same time, the world is witnessing increasing tensions between the right to freedom of religion or belief and other human rights. The same-sex marriage decisions handed down on June 26, 2013 by the United States Supreme Court in Hollingsworth v. Perry, 133 S.Ct. 2652, and United States v. Windsor, 133 S. Ct. 2675, have perhaps attracted the most attention, but they are simply the tip of the iceberg, reflecting what appears to be rapid social change in many parts of the world. See, e.g., Schalk and Kopf v. Austria, ECtHR, App. No. 30141/04 (June 24, 2010). These cases will unleash far-reaching changes that will generate calls from religious groups for protections of the affected religious rights. The report delivered by U.N. Special Rapporteur Heiner Bielefeldt on October 29, 2013 addressed a broader range of gender issues, and argues for a “holistic approach” that can help reconcile religious and gender rights in many cases. (For the text of this report, see A/68/290 (07/08/2013) at http://ap.ohchr.org/documents/dpage_e.aspx?m=86 (and then click on desired language).
The past year has also witnessed major decisions regarding claims of religious employees seeking accommodations on the basis of their conscientious beliefs. Eweida and Chaplin v. United Kingdom, ECtHR, App. Nos. 48420/10 and 59842/10 (January 15, 2013). And while annual resolutions protesting “defamation of religion” have given way in the United Nations to alternative approaches for dealing with expression that offends religious sensibilities, worries about this set of issues continue to run high. Initial steps to attempt to implement proposals of the Rabat Plan of Action, designed to address some of these issues, are only just beginning.
See http://www.un.org/en/preventgenocide/adviser/pdf/Rabat_draft_outcome.pdf. The Plan of Action’s call, among many other ideas, for repeal of blasphemy legislation, is unlikely to yield speedy responses.
Bearing in mind both the increasing significance of law and religion issues and the growing tensions, it is difficult to imagine how the Third Biannual ICLARS Conference, held in Virginia from August 21-23, 2013, could have been better positioned to make relevant contributions. Unfolding against the backdrop of the early American historical settings where some of the world’s earliest religious freedom norms were framed, the conference brought together more than 80 international experts, along with approximately 50 guests. Speakers and panelists addressed topics of great importance, including many of the salient topics mentioned above. Specifically, presentations focused on the general conference theme, “Religion, Democracy, and Equality”, and addressed a number of subthemes, including religious pluralism and treatment of religious minorities; religion and anti-discrimination norms; hate speech, hate crimes, and religious minorities; and religion and gender issues. The full conference program is available online.
On the first day of the Conference – held in Richmond, Virginia, near where Jefferson’s Virginia Statute for Religious Freedom was adopted in 1786 – participants and guests were pleased to hear papers from a number of outstanding young scholars, with Spanish interpretation provided for a number of sessions. That evening, after remarks by Ambassador (ret.) Randolph Bell, member of the Board of Trustees of Richmond's First Freedom Center, and the Honorable William T. "Bill" Bolling, Lieutenant Governor of Virginia, participants heard the Conference keynote address, given by Heiner Bielefeldt, U.N. Special Rapporteur for Freedom of Religion or Belief, who spoke to the topic "Freedom of Religion or Belief: A Classical Human Right under Fire?" Professor Bielefeldt addressed a number of sub-themes of the conference, but his central theme was that it is vital to remember that while there may be some tension points, freedom of religion or belief is not fundamentally inconsistent with other human rights, and taking a holistic view is vital to unlock the synergistic interaction of various human rights.
On the second day of the Congress, sessions were hosted by the Institute of Bill of Rights Law at the College of William and Mary in Williamsburg, the colonial capital of Virginia for many years and a major locus of historic church-state sites in early America. A first plenary was held on “Religious Pluralism and Treatment of Religious Minorities,” with interactive discussion led by Angela M. Banks (William and Mary), Asher Maoz (Peres Academic Center Law School, Israel), Enyinna Nwauche (University of Botswana), and Ayelet Shachar (University of Toronto). Following parallel sessions that further elaborated that theme, an afternoon plenary focused on speech that offends religious sensibilities, with discussion led by Senator Sophie van Bijsterveld (Netherlands) and by premier experts on the topic, including Barbora Bukovská (Article 19), Toby Mendel (Executive Director, Centre for Law and Democracy, Canada), Mohammed Saeed Eltayeb (Legal Epert, Bureau of Human Rights, Qatari Ministry of Foreign Affairs, Qatar), Michael O’Flaherty (Chief Commissioner of the Northern Ireland Human Rights Commission, and principle draftsman of the UN Human Rights Committee’s recent General Comment on Article 19 ICCPR, and Jeroen Temperman (Erasmus University, Rotterdam, Netherlands). Parallel sessions that followed branched out to discuss such themes as “Religious Symbols, Public Reason, and the State,” and “Hate Speech, Hate Crimes, and Religious Minorities,” as well as more general treatment of issues of religious pluralism and religious minorities.
On the third day of the Congress, the venue shifted to the University of Virginia, which was originally founded by Thomas Jefferson. The first plenary there brought leading experts from around the world together to focus on “Religion and Gender: Same-Sex Marriage.” The ICLARS conference provided one of the first opportunities at a major academic conference for discussion of the U.S. Supreme Court decisions on the same-sex marriage issues, and of course, ICLARS experts contributed a significant comparative perspective. Rex Ahdar (University of Otago, New Zealand), Ursula Basset (Pontificia Universidad Católica, Argentina) and Renata Uitz (Central European University, Hungary) examined the issue from three distinct geographical and ideological perspectives. Law Professor Douglas Laycock (Virginia) presented the view he had taken in one of the major amicus briefs filed in Perry and Windsor, namely that same-sex marriage should be allowed, but with strong protections for individuals who conscientiously object to participation in various direct or indirect ways in same-sex marriage. Professor Kent Greenawalt (Columbia) brought his long years of experience thinking about religious freedom issues to bear, noting with Professor Laycock the need for sensitivity to religious beliefs as general social mores appear to be shifting. A number of related issues involving religion and gender were discussed in parallel, sessions, including the controversial Health and Human Services Contraception Mandate in the United States, and legal developments regarding same-sex couples in other countries.
The final plenary focused on “Religion and Anti-Discrimination Norms.” Andrew Koppelman (Northwestern University, United States) and Lawrence Sager (University of Texas) presented neutrality- and equality-based criteria for wrestling with the extent to which religious institutions should have autonomy in personnel matters. Katayoun Alidadi shared perspectives drawn from research undertaken in connection with the Religare project in Europe. Carmen Domínguez Hidalgo and Eiichiro Takahata shared perspectives from Chile and Japan, respectiely. Parallel sessions provided country and regional studies of the tensions between anti-discrimination norms and religious autonomy and of legal approaches being taken in different areas.
As the foregoing brief panorama of the Virginia Conference indicates, ICLARS is making significant contributions to urgent questions arising in a variety of sectors of the law and religion field. We have already received over twenty papers that have been submitted for inclusion in a conference volume, and editing of this volume will move forward over the next several weeks. As the current President of ICLARS, and on behalf of many others involved in organizing the event, I want to extend my congratulations and appreciation to all those who participated.
W. Cole Durham, Jr.
Religion and Law in Italy