Constitutional Conversations and New Religious Movements: A Comparative Case Study
Greenhaw, Leigh Hunt, Koby, Michael H., Vanderbilt Journal of Transnational Law
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. …