Blog of the International Journal of Constitutional Law

Conference Report: Sacred/Secular Space Workshop on Law and Religion

–John Joseph Wamwara, Dooyeweerd (SJD) Fellow, Center for the Study of Law and Religion, Emory University School of Law; Law Lecturer, Moi University and Catholic University of Eastern Africa

This conference, held on December 24-25, 2017, was jointly organized by Radzyner Law School at IDC Herzliya, and the the Restoring Religious Freedom Project at Emory University School of Law. The aim of the conference was to explore how law and religion interact in space. In public and private spaces, how does the law treat the sacred? How are the conflicts arising from the clash of rights in public, private, or sacred spaces resolved? The opening speeches by Prof. Prof. Ammon Lehavi, Dean Radzyner Law School, and Dr. Mark Goldfeder, Director, Restoring Religious Freedom Project at Emory Law School highlighted these dilemmas especially in the Holy Land where property rights are contested between religious organizations up to an inch. The case of the Church of the Holy Sepulcher made for an excellent illustration of how explosive property claims in the sacred places can get. This is one building with six different claims from six different Christian denominations. Therefore, even the movement of a chair or a ladder could lead to a skirmish with far-reaching consequences.

The first part of the conference dealt with the Public and Sacred Spaces. I made my presentation ‘Public yet Sacred Paper: The Kenyan Experience in resolving the Conflicting Demands of Shared Spaces’ as part of this panel. I discussed the recurrent conflict between Indigenous Religious Communities and the Kenyan government. Often the government would exercise the power of eminent domain, taking indigenous communities’ lands, which are often also their places of worship and shrines. The efforts by these communities to mediate these conflicts mostly fail and the cases they bring to the courts are always decided in favour of the government. Two of these Communities (the Endorois and the Ogieks) have since brought two cases (Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, App. No. 276/2003, and African Commission on Human Rights v Republic of Kenya, App. No. 006/2012) to the African Court of Human and Peoples’ Rights (ACt.HPR). These cases were ruled in favour of the indigenous communities, and the government of Kenya was ordered to allow the return of the communities to their lands, to allow them their right to freely practice their religion. Also in this opening session, Douglas L. Waters (SJC Candidate, Emory University) highlighted a similar plight suffered by the Native Americans in the San Francisco Peaks where the authorities have allowed private developers to profane the hallowed grounds by constructing ski resorts and using water from recycled wastes. The courts have almost always ruled against the Native American claims. Finally, Prof. Lior Barshack delivered a deeply philosophical paper on how the sacred interacts with the law, questioning whether the sacred should ever be in the public space and how the individuality of persons is expressed in the sacred.

The second part of the conference highlighted how the law protects the sacred. Prof. Yoram Shachar gave a historical account of how the ‘status quo’ came to be in the Holy Land, particularly in Jerusalem. While the Islamic Sultans ruled, the Christians were willing to share the rights to the Holy places. When in 1755 the conflicts over these places threatened stability in Palestine, Sultan Osman III negotiated the status quo that has held ever since. The British upheld the status quo and the Israel at independence declared that it would uphold the inviolability of the Holy Places in the Holy Land. Prof. Jessica Giles then discussed how international criminal law apportions individual criminal responsibility for those who attack sacred places both religious and public. There was then open discussion about the Constitutional status on the Holy Places in Israel after three short presentations by IDC students on the same topic.

The third and fourth parts of the conference dealt with Sovereignty, and the Sociological, and Legal Overviews of the Sacred Space. Prof. Benjamin Porat gave Biblical roots to the extra-territorial application of the law. It was a development of the Tannaitic period that now manifests in some aspects of universal jurisdiction under international law. Dr. Yaniv Roznai discussed how the secular provisions of the most certain constitutions present a paradox in that when they declare that the secular nature of those constitutions are inviolable, they are in fact making such clauses of a constitution ‘eternal’, thereby defeating the secularity of the constitution itself. The constitutions of Turkey, Mali, and Tajikistan do have these ‘eternity clauses’. Prof. Rivka Weill then presented on how the “saving clauses” in constitutions are used to undermine the very protections that they are hoped to provide. While courts interpret them minimally, it does not remedy the all prevalent injury they cause especially to the protection of human rights. Prof. Michael J. Broyde gave a detailed overview of instances of conflict between the protection of religion in the United States and the governmental duty to regulate. While the Constitution protects ministers of religion, how much can a generally applicable legislation regulate places of worship? How far would be considered too much entanglement with religion? Since that line is not clear, he concluded that it leaves room for litigation and for the judicial bodies to pronounce themselves on these matters.

Finally, the last part dealt with models of church–state relations. Adv. Orly Erez-Likhovski presented on the state of religion in Israel. Through the experiences of the Women of the Wall Organization, she succeeded in highlighting the de facto inequalities some women face in their efforts to worship publicly at the Western Wall. She also demonstrated that, while there is no official religion in Israel, conservative Orthodox and ultra-Othordox Judaists influence government decisions and the making of the law in Israel. The efforts of demanding neutrality are painfully slow, but are slowly bearing fruits. Dr. Patrik Rako then presented a paper on the status of sacred places in Central Europe especially in Slovakia. During the communist regime, all religious property was confiscated. However, following the Velvet Revolution and the subsequent reforms, the government returned the property and negotiated compensation to religious groups for the period when their property was confiscated or reparations for property that the Communist government destroyed. Prof. Mark Goldfeder was the last to present. He questioned the theoretical secularity of the United States government, noting that the Declaration of Independence speaks of the Creator, the Founding Fathers spoke fondly of Christian values, the Supreme Court more than once has declared it a Christian Nation, Presidents, foremost being Donald Trump, have made it their crusade to re-Christianize the public space. However, the official separation of Church and State, and therefore the legal the Christian nature of United States results in formal secular deism that does more harm to religion than good, angering devout believers who think that there is a war on religion. He posits that it might be better that Christianity is declared the ‘soft’ religion of the state rather than continue with this pretend denial.


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