Religion & Law

This section includes literature on religious freedom.

Al-Astewani, Amin, 'To Open or Close? COVID-19, Mosques and the Role of Religious Authority within the British Muslim Community: A Socio-Legal Analysis' (2021) 12(1) Religions Article 11
Abstract: A whirlwind of developments have unfolded in the UK since the emergence of the COVID-19 pandemic, which has subsequently instigated an intensely animated debate among British Muslim religious leaders about the contentious and sensitive topic of mosque closure, producing a rich and sophisticated spectrum of responses. These responses emerged within the dramatic global background of an imminent closure of Islam's most cherished mosque to international pilgrims, namely the sacred precinct in Mekkah. The stakes were, therefore, high for British Muslim religious leaders considering mosque closure, facing the stark dilemma of compromising the sacrosanct status of the mosque and congregational worship in Islam or putting the lives of British Muslims in their hundreds of thousands at risk. This paper seeks to analyze the role of religious authority within the British Muslim community through the lens of the responses of the community's religious leaders to the COVID-19 closure of mosques. It builds upon a Special Issue published by this journal on leadership, authority and representation in British Muslim communities. The issue of COVID-19 mosque closure in the UK presented an excellent case study for this papers analysis, manifesting as it does the dynamic way in which religious authority in the British Muslim community continues to evolve. This paper thus seeks to use this case-study to further enrich the literature on this topic.

Azmi, Amylia Fuziana, Nik Salida Suhaila Nik Saleh and Zaharuddin Zakaria, 'Jurisdictional Conflicts in Facing COVID-19 Pandemic: An Analysis of Hibah Cases in Negeri Sembilan Syariah Courts' (2020) 3(1) INSLA E-Proceedings 622-628
Jurisdiction: Malaysia
Abstract: This study investigates the impacts of the Covid-19 pandemic on the number of hibah cases brought before the Syariah Courts in the state of Negeri Sembilan. In 2020, statistic reveals that a total number of 30 hibah cases have been registered in the Negeri Sembilan Syariah Courts. Interestingly, the total number of cases registered this year has decreased as compared to 51 cases for the previous year. This study discovers that the Covid-19 pandemic has an effect on the number of registered and resolved cases pertaining to hibahin Negeri Sembilan Syariah Courts. This study recommends that electronic method such as e-proceeding to be fully implemented so as to enable the public to access the court easily. It is hoped that findings of this study will shed light on the issue of jurisdictions concerninghibahand beneficial in providing clear and precise information on the jurisdiction of the Syariah Courts in deciding hibah matters.

Baharuddin, Ahmad Syukran et al, 'Offense of Spreading Infectious Disease and Methods of Proof Through Forensic Science' (2020) 3(1) INSLA E-Proceedings 340-350
Abstract: Since 1988, a specific Act has been enacted concerning the prevention and control of infectious diseases. This Act is known as the Prevention and Control of Infectious Diseases Act 1988. The preamble to this Act states that it was enacted to amend and consolidate laws relating to the prevention and control of infectious diseases and to provide for other matters relating thereto. In this Act, there are several types of actions that if committed can be convicted as an offense under this Act, among them include acting in a manner that can spread infectious diseases. This study discusses matters related to offense causing the spread of infectious diseases from the view of civil and Syariah law. It also covers scientific methods to prove such offense. This qualitative study has collected relevant data through primary and secondary documents and subsequently analysed it using the document analysis method. The result of this study found that the act of exposing others to the risk of infection is an offense and it is forbidden in Islam. Several scientific methods can be used in convicting this offense; among them are medical reports, travel records, physical examinations, CCTV footage, and biological examinations. This study suggests that the aspect of proof for such cases should be emphasized because such studies have not yet been conducted by previous researchers

Berg, Thomas C, 'Religious Freedom Amid the Tumult' (University of St. Thomas (Minnesota) Legal Studies Research Paper No 20-13, 17 August 2020)
Abstract: The Supreme Court Term ending in summer 2020 was action-packed for religious freedom. The Court decided six cases pertaining to the issue--double, even triple the usual number--in contexts from school choice to public-health closures of churches to clashes between religious liberty and nondiscrimination laws. The decisions also came at a time of extraordinary stress and turbulence in society, and they relate in striking ways to those forces of turbulence. This Article discusses religious freedom in relation to three Ps of turbulence: Pandemic, Polarization of culture and politics, and Protests over racial injustice. In each of these areas, the Article aims to explain the Court's approach and defend religious freedom today as a vital aspect of human dignity. Among many lessons from today's crises is that religion, freely chosen and exercised, is a vital aspect of human identity. Religious exercise provides individuals with strength and comfort in the stresses of a pandemic. Religious belief motivates service to others in schools and social-service agencies; credible legal threats to those organizations aggravate our already dangerous polarization. Now as much as ever, it is vital to defend religious freedom for all. Despite some mixed signals, the current Supreme Court seems willing to shoulder that task. But to defend religious freedom credibly means recognizing rights for others too. Christian conservatives must support religious liberty and equality for Muslims as well. A credible defense of religious freedom also calls for confronting rather than denying the problems of racial inequality. And it calls for drawing careful lines so that LGBT people can participate in economic life and traditionalist religious organizations can follow their religious identity.

Burke, Ciaran, 'Abusus Non Tollit Usum? Korea's Legal Response to Coronavirus and the Shincheonji Church of Jesus' (2020) 4(5) The Journal of CESNUR 64-85
Abstract: The legislative framework crafted by the Korean government in response to the MERS outbreak in 2015 informed its approach when COVID-19 appeared on its territory. This framework conferred broad powers upon the authorities to react promptly and effectively to the pandemic as it developed. However, the relevant legislation suffered for a lack of human rights safeguards, and was ultimately rather opportunistically employed by the government to target an unpopular religious community, raising questions about Korea's commitment to the rule of law and human rights standards.

Bussey, Barry W, 'Contagion: Government Fear of Religion during the COVID-19 Crisis' [2020] Revista General de Derecho Canonico y Derecho Eclesiastico del Estado 54
Abstract: This paper examines emerging trends in the responses of governments and religious communities to the COVID-19 health crisis. It reviews the initial measures taken by the authorities, along with the early compliance of churches, observing that mutual collaboration represents the 'finest hour' in recent church-state relations. However, as questions arose over the potency of the disease, perceived inconsistency of policies, and political acquiescence to racial protest movements, dynamics began to shift. A minority of religious communities appealed to the sovereignty of divine law in order to resist extended prohibitions on communal worship. This paper analyzes the implications of such resistance, urging that governments could better achieve their objectives by treating religious communities as essential, autonomous partners striving towards a shared goal.

Christians, Louis-Leon, 'Covid-19, Law and Religion in Belgium' in International Conference on Covid-19 Pandemic & Religious Freedom: Reports from North America and Europe, University of Portsmouth (UK), 2-3 December 2020 (2020)
Abstract: The paper introduces to some specificities of the Belgian regulation of religious liberty during the COVID-19 crisis.The Belgian regime of recognised religions has had very few 'advantages' during the COVID-19 crisis, apart from maintaining the salaries of priests and other religious ministers. Even towards recognized religions, a lack of empathy has been shown by public authorities -- even in their public speeches. Nevertheless, religious officials maintained a position of support for the government's health measures, although legal challenges have been filed by some of the more radical devotees.

Corbin, Caroline Mala, 'Religious Liberty in a Pandemic' (SSRN Scholarly Paper No ID 3634084, Social Science Research Network, 23 June 2020)
Abstract: The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This short Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.

Cranmer, Frank, 'Government and Parliamentary Report: February-May 2020' (2020) 22(3) Ecclesiastical Law Journal 361-367
Abstract: Reviews parliamentary and regulatory developments of relevance to ecclesiastical lawyers, including: how coronavirus-related legislation has affected the conduct of religious services, the progress of the Brexit negotiations, and the Church of England (Miscellaneous Provisions) Measure 2020.

Figueroa, Daniel, 'Diminishing Religious Liberties: COVID Under the First Amendment' (SSRN Scholarly Paper No ID 3753678, 22 December 2020)
Abstract: The coronavirus has caused an unprecedented shutdown of biblical proportions. As the world manages a pandemic, of similarities of the 1918 Influenza, that has caused a shutdown of the United States, gatherings like religious services have been subjected to sweeping stay-at-home orders banning congregation. This piece examines the claims of Churches who have faced restrictive and violative enforcement of government order that has allowed homologous activities, such as shopping or dining, at the expense of religious liberties, past to present.

Gold, Azgad, 'Are Healthcare Workers Obligated to Risk Themselves during the COVID-19 Pandemic According to Jewish Law? A Response to Solnica et Al' (2020) 46(11) Journal of Medical Ethics 736-737
Abstract: Solnica et al argue that 'Jewish law and modern secular approaches based on professional responsibilities obligate physicians to care for all patients even those with communicable diseases'. The authors base their viewpoint on the opinion of Rabbi Eliezer Waldenberg and apply it to suggest that physicians are obligated to endanger themselves during epidemics, such as COVID-19. It is argued that Solnica et al's analysis of Rabbi Waldenberg's text and their conclusion that healthcare workers are obligated to endanger themselves while treating patient who suffer from contagious illness during epidemics according to Jewish law suffer from various shortcomings. Indeed, Jewish law looks favourably on healthcare workers who take a reasonable risk in treating their patients in the context of epidemics. However, it is considered a voluntary supererogatory act--not obligatory. Solnica et al may express a legitimate ethical viewpoint. However, it does not seem to represent the mainstream approach of what Jewish law would demand as obligatory from its practitioners.

Hodge, James G, Hanna Reinke and Claudia M Reeves, 'Balancing Religious Freedoms and Public Health Protections During the COVID-19 Pandemic' (SSRN Scholarly Paper No ID 3619427, 4 June 2020)
Abstract: Extraordinary responses to the COVID-19 pandemic are generating substantial debates over the scope and reach of public health powers and religious freedoms. Emergency declarations at every level of government to limit societal impacts of COVID-19 may shift constitutional norms, but do not completely negate rights to free exercise or assemble. Yet, no one has an unmitigated right to harm others in pursuit of their faith. Somewhere between individual religious rights and communal public health objectives lies a legally viable balance. Finding it during the pandemic is controversial. Among the most contentious issues are governments' temporary orders suspending large religious gatherings to maintain social distances. While many religious leaders have complied, others have vociferously objected. Reaching accord begins with an assessment of legal principles of separation of church and state, especially concerning claims of religious rights to assemble despite unprecedented public health risks.

Ismail, Wan Abdul Fattah Wan et al, 'The Admissibility of Digital Document According to Syariah Law: A Preliminary Analysis' (2020) 3(1) INSLA E-Proceedings 471-480
Abstract: Major shifts in the science and technology landscape have made the collection and analysis of digital evidence an increasingly important tool in resolving crimes as well as preparing the case for the trial in the court. Digital documents are known as electronic documents and it can be used as a means of proof in court. Also, digital documents can be used as evidence in the category of documents based on the definition given in Section 3 of the Syariah Court Evidence (Federal Territories) Act 1997 [Act 561]. However, the digital document as a means of proof is still needed to be discussed in detail regarding its admissibility in the Syariah court. This is because there is no specific provision according to Syariah Court Evidence law on the use of it. This study, therefore, focuses on the concept of digital documents as evidence according to Syariah Law. This study aims to discuss from the Islamic legal perspective on digital documents as a means of proof from the holy Quran, hadith, legal maxims and acts. This study also will focus on the admissibility of the digital document as evidence in the Syariah court in Malaysia. The methodology of this study is a qualitative approach by using document analysis of article papers, journals, statutes and also related document references. The results show that the need to accept the admissibility of digital document as evidence very high, especially for use in the Syariah court. Studies show that the use of the digital document as evidence serves to support other evidence presented in court.

Jamaruddin, Wahida Norashikin and Ruzian Markom, 'The Application of Fintech in The Operation of Islamic Banking Focussing on Islamic Documentation: Post-COVID-19' (2020) 3(1) International Seminar on Syariah and Law (INSLA) E-Proceedings 31-43
Abstract: FinTech is innovation, and it is developing rapidly as part of current human need dealing with financial transactions in daily life, embracing the banking industry as convenience instruments to the consumers. Adapting FinTechin Islamic banking is challenges in terms of Shariah-compliant as the essential elements of riba',maysir, and gharar prohibited from forming part of the FinTechcomponent. Islamic finance institutions in the world face problem in dealing with financial transactions as well as saviour during pandemic COVID 19, where most countries in the world are affected and declared lockdown as an emergency solution to cutthe chain of COVID 19. Concerning the pandemic crisis, problems on the operation of Islamic banking adopted Islamic Fintech need to explore, which also concerning the conduct of legal firms in managing Islamic banking documentation. The objective of this paper is to identify the application of Islamic fintech in Islamic banking, the legal framework of Islamic fintech, issues in managing the operation and Islamic banking documentation at legal firms, and analysethe suitability of Islamic fintech in the service of Islamic banking during the Movement Control Order. The methodology used in attaining the objectives is qualitative by utilizing the library as the data centre, review the journals and articles, including collecting data from books and available reports. As a result of the study, the paper suggested new norms need a new approach by Islamic finance and any legal institution since the operation heavily relies on the adherence to Syariah requirements and guidelines issued by Bank Negara Malaysia and Security Commission. The support from the government in providing an adequate legal framework for fintech's instrument to operate needs attention, and consultation among the experts is much welcome by the fintech community.

Jauhari, M Sofwan and Abdul Ghoni, 'The Level of People's Obedience to MUI Fatwas (COVID-19, Bank Interest, and Interfaith Marriage)' (2020) 20(2) AHKAM : Jurnal Ilmu Syariah 233-256
Abstract: Indonesian Ulama Council (MUI) is an organization for Muslim scholars who provide guidance for the Muslim community in the form of fatwas on a particular situation on which the community can rely. In the ongoing situation relating to the COVID-19 pandemic since March 2020, MUI released a fatwa as to how to face the pandemic. This research is aimed to measure the level of people's obedience to the fatwa. To obtain an accurate measurement, this research involves two others MUI's fatwas - a fatwa related to bank interest and a fatwa related to interfaith marriage - by way of making a comparison. This research uses mixed methods which combined the quantitative method using SPSS and the qualitative method. This research finds that the young unmarried Muslim, mostly under-25- year-old university students, have the highest level of obedience to the fatwa related to COVID-19. The fatwa related to interfaith marriage is the most obeyed fatwas, and fatwa related to COVID-19 is the least one among three fatwas in this research.

Khalil, Muhammad Ainul Hakim Muhammad et al, 'Advantages of Temporary Waqf in Combating COVID-19 Pandemic in Malaysia' (2020) 3(1) INSLA E-Proceedings 167-180
Abstract: Waqf is a form of charity which is highly recommended in Islam. In Malaysia, most of the states impose solely on perpetuity property based on Shafi[?]iy school of law view as stated in State Administration of Islamic Law Enactment and State Waqf Enactment. However, there are certain states allowed the implementation of temporary waqf such as Johor, Federal Territory of Kuala Lumpur, and Sarawak. In 2020, most of the country across the world including Malaysia are affected by deadly disease which is known as COVID-19. The World Health Organization (WHO) declare it as pandemic on January 2020. Malaysia Government has issued Movement Control Order (MCO) as a preventive measures to overcome this contagious disease. Many institutions and employment sectors are ordered to stop their operation temporarily. The negative impact of MCO affected daily life routine, public safety and security, education, and business. Thus, the objective of this paper is to study the concept of temporary waqf from the Islamic perspectives and to explore the advantages of temporary waqf in combating COVID-19. This paper has conducted inductive and deductive methods. In this qualitative research, data has been collected by using library research, observations, and interview. The result of this paper shows that temporary waqf products brought many advantages as compared to perpetuity waqf in combating this pandemic COVID-19.

Levine, Samuel J, 'Hands-Off Religion in the Early Months of COVID-19' (SSRN Scholarly Paper No ID 3708424, 1 October 2020)
Abstract: For decades, scholars have documented the United States Supreme Court's 'hands-off approach' to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, judicial rulings and rhetoric in these cases illustrate ways in which the hand-off approach remains, at once, both vibrant and vulnerable to critique.

Manchin, Gayle and James Carr, 'Don't Let Religious Freedom Become a Casualty of Coronavirus' in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020)
Abstract: Introduction: How far can a government limit religious freedom in the name of fighting the coronavirus (COVID-19) under international law? As the global pandemic continues, many national and local governments are grappling with this question. Religious gatherings are important opportunities for people to practice and share their beliefs, but they are also sites for transmission of COVID-19, endangering not only participants in these gatherings but everyone with whom they interact. Crises require decisive government action, but governments often use times of crisis to encroach on individual freedoms or target minority groups long after the crisis has passed.

Mokhtar, Mohd Na'im, 'Reformation of Syariah Judiciary Institution During COVID-19 Pandemic' (2020) 3(1) INSLA E-Proceedings 18-22
Abstract: In Malaysia, the pandemic of coronavirus COVID-19 has impacted almost all areas of our life. The administration of the Syariah courts is no exception. The effects of the pandemic have been felt until now. Following the movement control order (MCO) on March18, all operations at Syariah courts nationwide have been halted. However, it did not stop the administration of JKSM and the Syariah courts which have continuously discussed, using the online platforms, to formulate reforms if the MCO was finally over. If justice delayed is justice denied, the COVID-19 would seem to be a disaster for our judicial system. But eight months into the crisis, there are signs that what is slowing courts overall is actually accelerating reforms in procedures. This is undoubtedly the hikmahor the positive side of COVID-19. When the pandemic finally ends, we hope that some of the changes that have been introduced will continue to be endured by the Syariah judicial system, and the efforts for reforms will continue.This speech explains the impact of covid-19 pandemic on Syariah judiciary, particularly on its operation and how has the institution, i.e. the Syariah courts dealt with it and the reforms that are taken in making sure the continuity of its service during the pandemic.

Muhsin, Sayyed Mohamed and Muhammad Mumtaz Ali, 'Facing COVID-19 in The Light of The Maxim "No Harm Shall Be Inflicted or Reciprocated"' (2020) 3(1) INSLA E-Proceedings 450-458
Abstract: The Islamic legal maxim (al-qa'idah al-fiqhiyyah) 'no harm shall be inflicted or reciprocated' has become particularly significant in this era of pandemic. In the current context, this legal maxim is reasonably expected, provided that if they are adequately employed, to influence people's choices and guide them to make certain decisions which are simultaneously religious and applicable for preservation of human life. This maxim is construed as prohibition of all actions that carry the notion of wronging, infringing on other's rights, frustrating, overpowering, or setting back some party's interests. In this article, we attempt to discern what Islamic jurisprudence has to say in this crucial combat which causes this global crisis. In light of the mentioned Islamic legal maxim, a flowchart that represents the sequence of the certain steps is derived, which is beneficial to be taken into consideration in the choices, decisions and actions related to or in the time of COVID-19.

Muthmainnah, Yulianti and Revoluna Zyde Khaidir, 'An Islamic Legal Hermeneutics on Nafaqah during the Covid-19 Pandemic' (2020) 1(2) _Ulumuddin Journal of Islamic Legal Studies_
Abstract: Those who work and earn money in the public sphere are obliged to find alimony and provide a living (nafaqah). The assumption that has been believed by the Muslim society is that alimony is a man's duty (husband to wife, father to family). This assumption has been influenced by several factors such as language construction, state policies and the normative religious understanding. During the Covid-19 pandemic, this one-sided assumption has not only continued discriminatory for women and kept them away from such fair and equal economic access, but also it has tended to take Muslim families' economy into the risks. This article aims to examine the complexities of working women position in the Islamic legal jurisprudence and provide an alternative narrative of Islamic legal hermeneutics ensuring that the livelihoods do not become the domain of men alone. Accordingly, it can be argued that the alimony might be considered to become the obligation of both men and women equally. Interviews with a number of women at the grassroots level prove that women are being able to play roles in earning a living.

O'Grady, Selina, 'Black Death, HIV/AIDS and Coronavirus: Can We Do Better than Scapegoat or Tolerate?' [2020] (3) European Human Rights Law Review 211-214
Abstract: Compares the historical responses to the Black Death and the AIDS crisis with contemporary reactions to the coronavirus pandemic, highlighting the differing reactions of Christian and Muslim communities to the Black Death, including the European persecution of Jews. Assesses whether humanity is now moving beyond blame and tolerance towards a fuller recognition of human dignity and individual rights.

Phuong, Nguyen Thi, 'Religion, Law, State, and Covid-19 in Vietnam' (2020) 8(2-3) Journal of Law, Religion and State 284-297
Abstract: The Vietnamese state has issued numerous measures to prevent the spread of covid-19 in the country. This paper shows how the state used the law to manage religious activities for the purpose of public health during the epidemic. We argued that because of legal, institutional, and religious factors, the Vietnamese state was successful in establishing cooperation with religious organizations to implement measures restricting religious activities to limit the spread of the epidemic in the country.

Pohlman, Zachary B, '"Churches" in a Time of Coronavirus' (SSRN Scholarly Paper No ID 3704110, 2 October 2020)
Abstract: Six months after in-person church services came to a grinding halt, religious attendees are returning to the pews--but in significantly fewer numbers. This steep decline in church attendance, even if only for the short term, could have lasting effects for how we conceive of 'churches' as a legal and religious matter.Legally, the lack of in-person services could affect a church's status for tax benefit purposes. I argue that a 'church' defined under the 'congregational approach'--that which requires the regular, in-person gathering of individuals to engage in worship--should retain its status as a church so long as a community of religious believers intends to hold regular, in-person religious gatherings, transitory crises that make such gatherings impossible notwithstanding. Religiously, the virus-induced shutdown of in-person religious activities may in fact cause religious believers to rethink the importance of liturgy and ritual and community for what it means to be a church. This blog post focuses specifically on community and the important role that fostering church community will play in the return to normalcy for churchgoers.

Preston, Cheryl B, 'Women in the Church of Jesus Christ of Latter-Day Saints and the COVID-19 Freeze' (2020) 13(3) SquareTwo

Abstract: During the COVID-19 freeze, women in The Church of Jesus Christ of Latter-day Saints have faced typical burdens and losses in practical terms, but more importantly, many women have faced barriers to religious observance. Although not limited to them, this has been particularly felt by single sisters. Women's experience in religion is a significant issue.

Ra, Mohammad Syahrul, Yusuf Hamdika and Sholahuddin Al-Fatih, 'The Impact of COVID-19 Through the Lens of Islamic Law: An Indonesian Case' (2020) 7(3) Lentera Hukum 267-278
Abstract: Coronavirus Disease 2019 (COVID-19), a virus founded in China, has spread worldwide as it has become pandemic. As a result, significant and detrimental impacts are undeniable to global citizens, including those in Indonesia. With the government's suggestions like introducing physical distancing and large-scale social restriction, they slow down economic growth. Also, they impact religious practices, particularly those performed by Muslims in Indonesia. This paper will discuss the impact of the COVID-19 pandemic through the lens of Islamic law. There are two main issues to analyze. First, what is the impact of COVID-19 on community activities in the view of Islamic law? Second, what is the impact of COVID-19 on religious communities in carrying out worship? This paper finds that the COVID-19 pandemic has adversely impacted religious worship activities in public places by considering this virus's rapid transmission. It is followed by the closure of worship places to encourage citizens to practice their religious activities at home. Thus, the whole community was urged, and some were prohibited following the mapping zone experienced by each region. Given Islamic law believed and trusted by Muslims, in the end, the government has issued a new normal policy by opening places of worship with health protocols.

Redding, Jeffrey A, 'Queer/Religious Friendship in the Trump Era' (SSRN Scholarly Paper No ID 3681093, 26 August 2020)
Abstract: Shortly after Black Lives Matter protests broke out around the United States this past spring, a curious protest took place in the state of Texas. Organized in response to the Texas governor's coronavirus-related order to close businesses devoted primarily to the serving of alcohol, an alliance of Texas bar owners staged a 'Bar Lives Matter' protest outside of the Texas State Capitol building in the city of Austin, while also coordinating a lawsuit challenging the governor's order in U.S. federal court. This lawsuit instigated by the Texas Bar and Nightclub Alliance followed in the footsteps of other lawsuits brought by Christian churches around the nation challenging pandemic-related limitations on in-person religious services. In July, responding in apparent disgust to the activities of devoted drinkers in Texas and elsewhere, the well-known economist and liberal columnist Paul Krugman lamented the potentially deadly reopening situation facing U.S. schools and students in the fall, opining in The New York Times that 'the reason we are in this position is that states, cheered on by the Trump administration, rushed to allow large parties and reopen bars. In a real sense America drank away its children's future.' In this (draft) essay, I aim to explore the pandemic pitting of bars against babies, and then too churches against children. Moreover, I will demonstrate that the constellation of competing interests present in the coronavirus pandemic--the defining moment of the Trump presidency--cannot be broken down along neat political affiliations or dispersed across predictable camps on either the left or right. Rather, what we are seeing again is the crisscrossing of political, religious, and sexual interests defying easy categorization. These days, indeed, it seems almost as if Gayle Rubin's '80s-era 'bar dykes' have managed to commandeer the contemporary Texas Bar and Nightclub Alliance, and that Paul Krugman could have been writing for Phyllis Schlafly's Eagle Forum rather than for The New York Times.

Reiss, Dorit Rubinstein and Madeline Thomas, 'More Than a Mask: Stay-At-Home Orders and Religious Freedom' (2020) 57(4) San Diego Law Review (pre-print)
Abstract: COVID-19 has changed our legal universe. Many states are responding by issuing stay-at-home orders, and as cases rise, may have to prohibit gatherings again. One issue states and courts have to grapple with is what is the relationship between stay-at-home orders and religion. Stay-at-home orders that require closing down churches may be challenged as violating the First Amendment's guarantee of religious freedom. Under our current jurisprudence, these cases may be handled under a highly deferential standard or under strict scrutiny - depending on the specific order in question, as well as on whether the state has a RFRA. We recommend, in either case, that orders be carefully crafted to impose the minimum prohibitions needed to prevent outbreaks, according to the situation, and that crafters address, generally, the specific things that increase the risk of transmission - for example, prohibit gatherings indoors that are more than in passing, rather than specific activities. We also recommend that crafters avoid drawing value-laden lines (e.g. deciding whether gun stores are more important than churches). Finally, we suggest that courts should rule in ways that support drawing reasonable lines and providing essential information. A separate question is whether stay-at-home orders that exempt churches violate the Establishment Clause's separation of church and state; we explain why the answer is, probably, no.

Ricca, Mario, 'Don't Uncover That Face! Covid-19 Masks and the Niqab: Ironic Transfigurations of the ECtHR's Intercultural Blindness' [2020] International Journal for the Semiotics of Law (advance article, published 30 April 2020)
Abstract: This essay, between serious and facetious, addresses an apparently secondary implication of the planetary tragedy produced by Covid-19. It coincides with the 'problem of the veil,' a bone of contention in Islam/West relationships. More specifically, it will address the question of why the pandemic has changed the proxemics of public spaces and the grammar of 'living together.' For some time--and it is not possible to foresee how much--in many countries people cannot go out, or enter any public places, without wearing a sanitary mask. In short, almost all of us, by obligation or by urgent advice from the public authorities of the various countries, will not live the public sphere with our faces uncovered. The alteration of the social context affecting many Western countries will inevitably involve also the 'local' perception of the Islamic veil and--as a matter of equality--the consistency of the prohibition of wearing it. What will thus become of the ban on wearing it in public places established by some countries such as France and asseverated by the ECHR? If everyone can and will have to go around with their faces covered, why should only Islamic women be discriminated against? Will not the change in boundary conditions produced by Covid-19 also induce Western people to re-categorize the meaning of the veil? And will this re-categorization not directly affect the 'fact' of wearing the veil, that is, its empirical perception? And still, will this psycho-semantic change not show how empirical perceptions are cultural constructs rather than 'objective facts,' as such allegedly independent from the observer's point of view? Consequentially, will the plurality of perceptions and cultural meanings related to the gesture of covering one's own face not gain renewed relevance in determining the legitimacy of wearing the veil? The socio-semantic earthquake produced by Covid-19 compels us to rethink this and other issues orbiting around the translation of 'facts' into legal language; furthermore, it highlights the instrumentality of many ideological/partisan and ethnocentric assumptions passed off as objectivity regarding those alleged 'facts.' The essay will attempt to provide an answer to the above questions by proposing a semiotic-legal approach to intercultural conflicts and, indirectly, the pluralism in law.

Rothschild, Zalman, 'Free Exercise Partisanship' (SSRN Scholarly Paper No ID 3707248, 7 October 2020)
Abstract: The pandemic has put into question many assumptions about the way the world, politics, and the judiciary work. This article argues another sacred cow must be revisited: that in free exercise cases, there is no discernible correlation between judicial decision making and politics. This article surveys every merits-based federal court decision pertaining to challenges by religious institutions regarding prohibitions of religious gatherings during the pandemic. It has produced staggering findings: 0% of Democrat-appointed judges have sided with a religious institution, a sizable majority (63%) of Republican-appointed judges have sided with a religious institution, and 0% of Trump-appointed judges have sided with the state or city. Put differently, all Trump-appointed judges have sided with religious institutions and all Democrat-appointed judges have sided with the state or city.The article tracks one particular set of free exercise cases, but the startling findings have broader implications. They suggest judicial partisanship rests as much on the extent to which pertinent law is ambiguous as it does on the extent to which the issues in play are controversial. The article shows how free exercise has recently become controversial. And it explains how the currently most significant aspect of free exercise--the meaning of religious discrimination under the Free Exercise Clause--is mired in confusion. It concludes if free exercise is left in its current state of ambiguity, it will continue enabling judicial partisanship in an area that holds great consequences for other rights, including the future of LGBTQ rights and access to contraception.

Rothschild, Zalman, 'Free Exercise's Lingering Ambiguity' (2020) 11 California Law Review Online 282-295
Abstract: Religious challenges to state-issued stay-at-home orders have become a staple of the litigation generated by the COVID-19 pandemic. Judges hearing these challenges have had to grapple with an old question imbued with new pandemic-related nuance: What constitutes discrimination against religion under the Free Exercise Clause? The answer--as evidenced by the wide divergence in courts' responses--is anything but straightforward. In this article, I explore an ambiguity surrounding the meaning of religious discrimination in current free exercise jurisprudence, the role this ambiguity has played in recent religious challenges to stay-at-home orders, and how the Supreme Court next term may finally lay this ambiguity to rest.

Sandberg, Russell, 'Is the National Health Service a Religion?' (2020) 22(3) Ecclesiastical Law Journal 343-354
Abstract: Considers, with reference to the coronavirus lockdown, whether individuals may be legally entitled to refuse to return to the workplace on the ground that they feel that such a return will breach their belief in protecting the NHS. Discusses whether the NHS constitutes a 'religion' under ECHR art.9.

Satyogi, Pooja, 'Policing and the God of Death: Legal-Religious Iconography Amidst COVID-19' (2021) 7(1) Society and Culture in South Asia 133-140

Savage, Audra, 'COVID-1619: A Brief History of Racism' (SSRN Scholarly Paper No ID 3671093, 10 August 2020)
Abstract: Racism is the use of Black people to achieve the goals of white people without regard to the personhood, humanity, and agency of Blacks. This essay explores this definition of racism by tracing the influence of the twin institutions of law and religion in creating and maintaining the slave system in early colonial America. The essay then demonstrates the pernicious and persistent nature of racism by mapping this definition onto the current COVID-19 pandemic and its disproportionate impact on Black Americans.

Sholeh, M Asrorun Ni'am, 'Towards a Progressive Fatwa: MUI's Response to the COVID-19 Pandemic' (2020) 20(2) AHKAM : Jurnal Ilmu Syariah 281-298
Abstract: This study examines the Fatwas issued by the Indonesian Ulama Council (Majelis Ulama Indonesia/MUI) on Indonesian Muslim attitudes and practical procedures towards their religious behaviors and public demands on the government appreciation and recognition. The fatwas present logical reasoning which has attracted the government's attention to adopting them and issue legal products based on them. With a normative legal research approach, this study is considered as qualitative research which using critical legal theory to analyze the important points in the Fatwas. As a result, this study finds four important cases in the fatwa on religious attitudes and behaviors during the COVID-19 pandemic: first, the fatwa on COVID-19 has logical reasoning which is in line with paramedical advice; second, the fatwa on COVID-19 is consistent with the government political interests concerning physical and social restrictions; third, the fatwa on COVID-19 ends the negative stigma on the political role of religious actors; and fourth, the fatwa shows the increasing role of Kiai (religious figures) from cultural brokers to actors of Islamic legal scientism.

Solnica, Amy, Leonid Barski and Alan Jotkowitz, 'Allocation of Scarce Resources during the COVID-19 Pandemic: A Jewish Ethical Perspective' (2020) 46(7) Journal of Medical Ethics 444-446
Abstract: The novel COVID-19 pandemic has placed medical triage decision-making in the spotlight. As life-saving ventilators become scarce, clinicians are being forced to allocate scarce resources in even the wealthiest countries. The pervasiveness of air travel and high rate of transmission has caused this pandemic to spread swiftly throughout the world. Ethical triage decisions are commonly based on the utilitarian approach of maximising total benefits and life expectancy. We present triage guidelines from Italy, USA and the UK as well as the Jewish ethical prospective on medical triage. The Jewish tradition also recognises the utilitarian approach but there is disagreement between the rabbis whether human discretion has any role in the allocation of scarce resources and triage decision-making.

Solnica, Amy, Leonid Barski and Alan Jotkowitz, 'The Healthcare Worker at Risk during the COVID-19 Pandemic: A Jewish Ethical Perspective' (2020) 46(7) Journal of Medical Ethics 441-443
Abstract: The current COVID-19 pandemic has raised many questions and dilemmas for modern day ethicists and healthcare providers. Are physicians, nurses and other healthcare workers morally obligated to put themselves in harm's way and treat patients during a pandemic, occurring a great risk to themselves, their families and potentially to other patients? The issue was relevant during the 1918 influenza epidemic and more recently severe acute respiratory syndrome epidemic in 2003. Since the risk to the healthcare workers was great, there was tension between the ethical duty and responsibility to treat and the risk to one's own life. This tension was further noted during the 2014 Ebola outbreak in West Africa that left hundreds of healthcare workers dead. The AMA Code of Ethics states that physicians are to 'provide urgent medical care during disasters...even in the face of greater than usual risk to physicians' own safety, health or life.'1 Classic Jewish sources have dealt with this question as well. There is an obligation 'to not stand by idly when your friends life is in danger'; however, the question arises as to whether there are limits to this obligation? Is one required to risk one's own life to save another's? There is a consensus that one is not required but the question open to debate is whether it is praiseworthy to do so. However, regarding healthcare workers, there is agreement for ethical, professional and societal reasons that they are required to put themselves in harm's way to care for their patients.

Stern, Shai, 'The Dark Side of Communities: Illiberal Religious Communities' Compliance with COVID-19 Public Health Regulations' (SSRN Scholarly Paper No ID 3637335, 28 June 2020)
Abstract: The COVID-19 pandemic did not eliminate existing social tensions; rather, it at times intensified them. Thus it is unsurprising that the tension between the liberal state and illiberal religious communities likewise intensified, as those communities were late to comply with COVID-19 public health regulations issued by state authorities. This article suggests that alongside the behavioral and psychological explanations for individual non-compliance, illiberal religious communities' late response to the COVID-19 threats stems out of these communities' unique characteristics and deeply held norms. Five explanations were provided to support this argument: (1) the structural explanation that focuses on the hierarchical character of decision-making processes in such communities; (2) the communities' social and spatial characteristics; (3) the constant struggle of illiberal religious communities to control and limit information available to their members; (4) the normative clash between social distancing and communal norms; and (5) the effects of the tension and distrust existing between the state and the communities. Each of these explanations aid in understanding why illiberal religious communities were late to respond to COVID-19 threats, and therefore suffered high rates of morbidity and mortality. This article argued that to some extent, they all result from the interventionist liberal-centric policies embraced by most western states for dealing with illiberal religious communities. Since COVID-19 is not expected to be the last health related crisis, and as other environmental, economic, or security emergencies may still require social adherence to government regulations, liberal states should rethink their policies toward illiberal religious communities. The ability to harness those communities to comply with life-saving regulations may save lives not only within these communities, but also reduce threats to areas and neighborhoods adjacent to those communities. This article suggests that the isolation and fortification processes that illiberal religious communities engage in--the same processes that prevented these communities from responding quickly and effectively to COVID-19 threats--may be mitigated if states embrace pluralistic-centric policies regarding illiberal religious communities. As the article suggests, these policies are not only normatively superior to liberal-centric policies, but they may also increase trust between the parties. Working to establish trusting relationships in times of normalcy may provide both the government and the illiberal religious communities with instruments to properly address emergencies.

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