Renmin University of China Order Law and Religion Essay

1.Analyse the religious freedom issues raised by the debate in the United States on provisions requiring employers to provide health-care coverage including contraception and abortion, as applied to an employer whose religious convictions are opposed to both these medical procedures. Does it make a difference whether an employer is an individual or a corporation? Whether the employer is a “religious body” or a “for profit” corporation? You should take into account the decisions of the US Supreme Court in Burwell v Hobby Lobby Stores, Inc (No 13-354; June 30, 2014) and Zubik v Burwell 578 U. S. ____ (2016).

2. Can a Roman Catholic agency involved in placing foster children with carers, decline to place children with same-sex couples because of its religious commitment to the value of traditional marriage? The US Supreme Court recently handed down a significant decision in Fulton v City of Philadelphia, Pennsylvania (593 US ____ (2021); No 19-123; 17 June 2021) dealing with this issue. Discuss how the matter might be resolved if the issue arose in the Australian Capital Territory.

3. Analyse the religious freedom and freedom of speech issues raised by legislation in Australian jurisdictions requiring a “buffer zone” around abortion clinics within which restrictions are imposed on expressing opposition to abortion. Are these restrictions constitutionally valid? Might they be challenged on other grounds? Do they represent an appropriate balancing of the various interests at stake?

4. During the earlier stages of the COVID-19 pandemic strict gathering rules prevented many religious groups around the world from having their weekly gatherings. Some then brought court cases alleging an undue infringement of religious freedom. Discuss those courts cases in the United States, Europe, the UK and Australia, and whether the outcomes of those cases seem to strike the right balance between religious freedom and public health issues.

5. It is not uncommonly argued in public discussion that any organisation that receives public funds to provide a service to members of the public, should not be able to rely on “exemptions” from the provisions of anti-discrimination law based on religious grounds. Consider the arguments for and against this proposition, referring in particular to the questions that are raised for adoption and foster-care agencies and aged care providers. Describe the current legal position in Australia and evaluate whether the present law is appropriate, or in need of reform.

6. Discuss, in light of litigation in Canada and elsewhere, whether a private “religious” University in Australia ought to be able to impose a condition of enrolment on students that requires them to commit to specific religious or moral beliefs consistent with the religious beliefs of that institution. Also discuss whether (legally and as a matter of policy) professional accreditation bodies ought to be able to deny accreditation to graduates of such Universities on the basis of those requirements.

7. A common source of debate in some Western societies is the Islamic practice of women wearing either a headscarf or a full-face covering. Do the decision of the Grand Chamber of the European Court of Human Rights in SAS v France (App No 4385/11; 1 July 2014), and later decisions of the ECHR and the European Court of Justice on this issue, represent an appropriate reading of the relevant European conventions and recognition of freedom of religion? Discuss the current situation in Australia with respect to these practices, and whether any change to the law is desirable.

8. Are “ministers of religion” employees, independent contractors, or neither? Why does it matter? Discuss the legal situation in the UK and Australia, and implications of the current law. Is the law in Australia in this area in need of reform?

9. With reference to US law, especially the “ministerial exception” decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012), and Australian law, discuss the question whether and in what circumstances a religious body should be to some extent exempt from the full range of laws dealing with the creation, regulation and termination of employment relationships in relation to “ministers of religion”.

10. In what circumstances, and under what conditions, should a “secular” court enter on consideration of the meaning of religious doctrines? Consider, as well as other relevant material, Australian and UK decisions on property and trust issues, including the decision of the UK Supreme Court in Shergill & Ors v Khaira & Ors [2014] UKSC 33.

11. What are the issues raised under Australian law by legislation restricting free speech on religious issues? Discuss with reference to decisions on the question of religious “anti-vilification” laws and regulations preventing preaching in public places.

12. Should the observance of a religious practice, or the adherence to a religiously based belief, be mandatory on a person before their right to behave in accordance with this practice or belief can be protected under laws protecting religious freedom? If a lesser standard of “connection” between the religion and the practice or belief is justified, how should this standard be formulated? Discuss with reference to decided cases in the UK, Europe and Australia.

13. In what sense does legal recognition of same sex marriage in Australia, the UK and the US raise “freedom of religion” issues? In what circumstances might the law on this topic impact on the rights of those opposed to the concept on religious grounds? Do the protections provided in Australia and other jurisdictions adequately account for these concerns?

14. What are the issues for religious freedom raised by Government concerns about “religious extremism” in schools? Discuss measures that have been proposed or implemented in schools in the UK and Australia and whether they represent an appropriate approach in light of these issues.

15. Describe how the right to religious freedom is protected under local “human rights charters” in the Australian jurisdictions of Victoria, the ACT and Queensland. Discuss the operation of these charters in comparison with such charters in other countries. Do these local charters provide effective protection for religious freedom in those jurisdictions?

16. Outline the law of Australia at the moment on the question as to whether a religious school should be able to apply its faith-based principles on sexuality in its dealings with students and teachers at the school. (Consider differences between different jurisdictions.) How did the Ruddock Report recommend this matter be dealt with? Are its recommendations appropriate, or does the law in this area need reform in some other way?

17. Outline the recommendations of the Ruddock Report on religious freedom, and how those recommendations would have been implemented in the Religious Discrimination Bill introduced into the Parliament in 2021 by the previous Coalition government. What in your view were the positive and negative aspects of that Bill?

18. Does the current Australian judicial interpretation of the “establishment” limb of s 116 of the Constitution adequately reflect the concerns of those who drafted the Constitution? By comparison with US jurisprudence on establishment issues, is there a case to be made for the Australian provision to be read differently? Consider taking into account in particular the issue of government funding for “faith based” schools.

19. Choose one non-Christian religion and compare its views on “law” as an internal feature of the religion, and the interaction of internal law with the law of the State, with the views taken on those matters within Christianity.

20. Should a minister of religion be allowed to refuse to give evidence about sexual abuse of a child that he or she is informed about by the perpetrator under a religiously-based obligation of confidentiality (in for example a confession)? Consider carefully the arguments on both sides of this debate, and the situation at common law and under statute.

21. Can a bishop of the Roman Catholic Church or the Anglican Church of Australia be sued as vicariously liable for sexual abuse committed in their diocese by a priest? Can an action be taken against the local diocese or a diocesan fund? Consider the law of the UK and Australia, taking into account the deliberations of inquiries into institutional child abuse and legislation enacted as a response.

22. Discuss the current law relating to charitable status and the enjoyment of taxation exemptions by religious bodies in Australia. Is the operation of the “public benefit” test appropriate or does it need to be reformed?

23. Should a baker, or a florist, requested to provide services for a same-sex marriage ceremony, or services which amount to endorsing and supporting same-sex relationships, be entitled to refuse to provide those services on the basis of a religious objection to the ceremony or the endorsement? Discuss the situation in the UK, USA and Australia, and whether reform of the law is needed in this area in Australia.

24. A number of jurisdictions in Australia have introduced bans on so-called “conversion therapy” practices. What challenges to religious freedom are presented by those laws? Do those laws strike the right balance in protecting religious freedom and the right of persons not to be forced to change their sexual orientation, or to live with a gender identity they are not comfortable with? If not, what amendments would be desirable?

The research essay must demonstrate:
• Advanced and critical understanding of the relevant legal rules which currently exist and of the
policy behind the law, and careful evaluation of suggestions for change
• Clear analysis of relevant primary and secondary legal materials
• Highly developed capacity for clear presentation in writing of legal information.

Criteria against which the research essay will be marked are:
• Does the essay exhibit developed knowledge and critical understanding of the topic?
• Does it demonstrate advanced skills in research and clear analysis of cases/legislation
and secondary literature?
• Does it provide evidence of careful critique and evaluation of suggestions for change?
• Does the essay have a clear structure?
• Is the analysis and argument logically developed?
• Does it clearly identify legal or policy reasons for each major proposition?
• Are statutes and cases correctly cited in accordance with appropriate legal
conventions?
• Is it grammatically correct?
• Is it well written? (Are words used appropriately and are sentences well constructed?)
• Is it appropriately concise?
• Are references used appropriately?

It is not imperative to make reference to the following texts, but I have copied them from the course handbook in case it helps.

Prescribed texts
* Renae Barker, Paul Babie & Neil Foster (eds) Law and Religion in the Commonwealth: The Evolution of Case Law (Oxford; Hart/Bloomsbury, 2022)
Recommended texts/readings
* Ahdar, Rex J. Worlds colliding: conservative Christians and the law (Aldershot, Hants, England; Ashgate/Dartmouth, 2001) ?
* Adhar, Rex and I Leigh, Religious Freedom in the Liberal State (2nd ed; Oxford: OUP, 2013) ?
* Ahdar, Rex (ed) Research Handbook on Law and Religion (Cheltenham, UK; Northampton, MA, USA: Edward Elgar Publishing, 2018) ?
* Babie, Paul et al Religion and Law in Australia (Alphen aan den Rijn, The Netherlands; Kluwer Law International, 2015) ?
* Babie, P & Rochow, N (eds) Freedom of Religion under Bills of Rights (Adelaide: Uni of Adelaide Press, 2012) (available as a free online download at http://www.adelaide.edu.au/press/titles/freedom-re… ) ?
* Barker, R State and Religion: the Australian Story (New York, NY; Routledge, 2018) ?
* Batnitzky, Leora & Hanoch Dagan (eds) Institutionalizing rights and Religion: Competing ?Supremacies (Cambridge : Cambridge University Press, 2017) ?
* Beck, Luke Religious Freedom and the Australian Constitution (Abingdon: Routledge, ?2018) ?
* Benson, Iain T. & Barry W. Bussey Religion, Liberty and the Jurisdictional Limits of Law ?(Canada: LexisNexis Canada, 2017) ?
* Berman, H Law and Revolution: The Formation of the Western Legal Tradition (Harvard ?UP, 1983) ?
* Berman, H Law and Revolution, II: The Impact of the Protestant Reformations on the ?Western Legal Tradition (Harvard UP, 2003) ?
* Bird, M F Religious Freedom in a Secular Age (Grand Rapids: Zondervan Reflective, ?2022) ?
* Cane, Peter; Carolyn Evans and Zoë Robinson (eds), Law and Religion in Theoretical ?and Historical Context (Cambridge: Cambridge University Press, 2008) ?
* Chavura, Stephen A, John Gascoigne, and Ian Tregenza Reason, Religion and the ?Australian Polity: A Secular State? (London: Routledge, 2018) ?
* Chevalier-Watts, Juliet The Law of Religion in New Zealand (Wellington: Thomson ?Reuters, 2021) ?
* Cranmer, Frank; Mark Hill QC, Celia Kenny, and Russell Sandberg (eds) The Confluence ?of Law and Religion: Interdisciplinary Reflections on the Work of Norman Doe ?(Cambridge: Cambridge University Press, 2016) ?
* Cranmer, Frank Religion and Belief in United Kingdom Employment Law: an Introduction ?to the Case-Law (Leiden: Brill, 2017) ?
* Doe, Norman Christian Law: Contemporary Principles (Cambridge; Cambridge University Press, 2013)
* Drinan, R F Can God and Caesar Coexist? (New Haven: Yale UP, 2004) ?
* Durham, W Cole Jr & Scharffs, B G Law and Religion: National, International and ?Comparative Perspectives (Aspen/Wolters Kluwer, NY, 2010)
* Durham, W. Cole Jr. & Donlu Thayer (eds) Religion and Equality: Law in Conflict ?(Farnham, Surrey, England; Burlington, VT, USA; Routledge, 2016) ?
* Evans, C M Legal Protection of Religious Freedom in Australia (Sydney: Federation ?Press, 2012) ?
* Evans, Malcolm; with Peter Petkoff and Julian Rivers (eds) The Changing Nature of ?Religious Rights under International Law (Oxford, Oxford University Press, 2015) ?
* Failinger, Marie A; with Elizabeth R. Schiltz, and Susan J. Stabile (eds) Feminism, Law ?and Religion (Farnham, Surrey, UK, England: Ashgate, 2013) ?
* Ferrari, Silvio (ed) Routledge Handbook of Law and Religion Abingdon, Oxon; ?Routledge, 2015 ?
* Guiora, A N Freedom from Religion: Rights and National Security (2nd ed; Oxford: OUP, ?2013) ?
* Hambler, Andrew Religious Expression in the Workplace and the Contested Role of ?Law (Milton Park, Abingdon, Oxon, Routledge, 2015) ?
* Hill, Mark; with Russell Sandberg, Norman Doe & Christopher Grout Religion and Law ?in the United Kingdom (3rd ed; Kluwer Law International BV, 2021) ?
* Hill, Mark Ecclesiastical Law (4th ed; Oxford: Oxford UP, 2018) ?
* Hosen, N & Mohr, R (eds) Law and Religion in Public Life: The Contemporary Debate ?(London: Routledge, 2011) ?
* Hussain, J Islam: Its Law and Society (3rd ed; Sydney: Federation Press, 2011) ?
* Kalanges, Kristine Religious Liberty in Western and Islamic Law: Toward a World Legal ?Tradition [electronic resource] (Oxford [UK]; New York: Oxford University Press, 2012) ?
* Langer, Lorenz Religious Offence and Human Rights: the Implications of Defamation of ?Religions (New York; Cambridge University Press, 2014)
* Lindsay, G & Hudson, W Australian Jurists and Christianity (Alexandria: Federation ?Press, 2021) ?
* MacFarlane, P & Fisher, S Churches, Clergy and the Law (Sydney: Federation Press, 1996) (an older book but still valuable as an overview of some areas) ?
* Mancini, Susanna & Michel Rosenfeld (eds) The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Cambridge: Cambridge University Press, 2018) ?
* Mason, Keith, Constancy and Change: Moral and Religious Values in the Australian Legal System (Sydney: Federation Press, 1990) ?
* Nongbri, B Before Religion: A History of a Modern Concept (New Haven: Yale UP, 2013) ?
* Radan, Peter, Denise Meyerson and Rosalind F. Croucher Law and Religion: God, the State and the Common Law (London; New York: Routledge, 2005) ?
* Rivers, J The Law of Organized Religions (Oxford: OUP, 2010) ?
* Sadurski, W (ed) Law and Religion (Aldershot: Dartmouth, 1992) ?
* Sandberg, R Law and Religion (Cambridge UP, 2011) ?
* Schwartzman, Micah; with Chad Flanders, Zoë Robinson (eds) The Rise of Corporate ?Religious Liberty (Oxford [UK], New York; Oxford University Press, 2016) ?
* Scolnicov, A The Right to Religious Freedom in International Law: Between Group ?Rights and Individual Rights (London: Routledge, 2011) ?
* Shah, Prakash; with Marie-Claire Foblets and Mathias Rohe (eds) Family, Religion and Law: Cultural Encounters in Europe (Farnham, Ashgate, 2014) ?
* Stanley, T (ed) Religion after Secularization in Australia [electronic resource] (New York: Palgrave Macmillan, 2015) ?
* Strong S.I. Transforming Religious Liberties: a New Theory of Religious Beliefs for National and International Legal Systems (Cambridge: Cambridge University Press, 2018) ?
* Sullivan, Winnifred Fallers, Robert A. Yelle, and Mateo Taussig-Rubbo (eds) After Secular Law [electronic resource] (Stanford, California: Stanford University Press, 2011) ?
* Taylor, Paul M. Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge, UK; New York: Cambridge University Press, 2005) ?
* Venter, Francois Constitutionalism and Religion (Cheltenham, UK; Edward Elgar Publishing, 2015) ?
* Waldron, J The Harm in Hate Speech (Cambridge, Mass: Harvard University Press, 2012) ?
* Walsh, Greg Religious Schools and Discrimination Law (Chippendale, NSW; Central Press, 2015) ?
* Witte, J Jr and F S Alexander (eds) Christianity and the Law (Cambridge: Cambridge University Press, 2008) ?