Constitutional Conversations and New Religious Movements: A Comparative Case Study

Article excerpt

ABSTRACT

Using the metaphor of a constitutional conversation to compare the treatment of a relatively new and unpopular religion by the legal systems of the United States, Russia, and Spain, this Article examines the methodology by which laws affecting religion are made and enforced. It uses as a case study the interaction of the Jehovah's Witnesses with the legal system of the United States, comparing it with more recent interactions in Russia and Spain. The Authors argue that while the experience in the United States was profoundly influenced by a common-law methodology, the experience in two civil-law countries, Russia and Spain, even after the advent of constitutional courts, remains somewhat distinct. The more structured conversation in Russia and Spain may result in more predictable rules and efficient enforcement, but the complex and dynamic U.S. conversation may allow religious minorities greater voice.

TABLE OF CONTENTS

 I.  INTRODUCTION
 II. THE UNITED STATES
     A. Introduction
     B. Interaction Between the Jehovah's Witnesses
        and the U.S. Legal System
        1. The Jehovah's Witnesses in the
           United States
        2. Effect on Constitutional Law
           a. Access to and Use of Public
              Property for Expressive Activities
           b. Freedom From Coerced Speech
              and of Religious Exercise
           c. Judicial Power
        3. Effect on the Jehovah's Witnesses
     C. The Interaction as a Distinctively
        American Constitutional Conversation
        1. An Authoritative Text Sets Parameters
        2. Participants Initiate, Shape, and
           Publicize the Conversation
        3. The Conversational Forum and Its
           Renewable Subject Matter
           a. A Concrete and Adversarial
              Conversation
           b. The Common-Law Judge as
              Audience and Participant
           c. Renewal of the Meaning of the
              Conversational Text
        4. Varied Topics in a National
           Conversation
        5. Instances of Conversation Differing
           in Time and Setting Create Repetition,
        Inconsistency, and Lapses
     D. Assessment and Conclusion
III. RUSSIA AND SPAIN: A DISTINCTLY EUROPEAN
     CONVERSATION
     A. The Role of the European Court of
        Human Rights in Russia and Spain
     B. The Role of Constitutional Courts in
        Russia and Spain
     C. Russia
        1. Introduction
        2. The Interaction Between the Jehovah's
           Witnesses and the Russian Legal
           System
           a. The Jehovah's Witnesses in Russia
           b. Russia's Religion Laws Generally
           c. Registration of Jehovah's Witnesses
              Under the 1997 Law
           d. Jehovah's Witnesses in Moscow Under
              the 1997 Law
        3. Conclusion
     D. Spain
        1. Introduction
        2. Interaction Between the Jehovah's
           Witnesses and the Spanish Legal
           System
           a. Spain's Religion Laws Generally
           b. Treatment of Jehovah's Witnesses
              Under Spain's Religion Laws
        3. Conclusion
 IV. DISTINCT AND COMMON ASPECTS OF THE
     U.S. AND EUROPEAN CONVERSATIONS
     A. Common Conversations About Religious
        Freedom
     B. The Russian and Spanish Conversations
        Do Not Alter Their Subject Matters as
        Profoundly as Has the Conversation
        in the United States
        1. Length of the Conversations
        2. Density of the Authoritative Texts and
           Corresponding "Gaps" for Judicial
           Conversation
        3. Opportunities for Courtroom Conversations
           and Conversations Among Courts
        4. Altering the Subject Matter of the
           Conversation
     C. The Russian and Spanish Conversations
        Appear Less Complex Than in the United States,
        and More Predictable
     D. …