Constitutional conversations and new religious movements: a comparative case study.

AuthorGreenhaw, Leigh Hunt


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. The U.S. Conversation May Be More Responsive to Minority Religions V. CONCLUSION I. INTRODUCTION

This Article addresses the comparative legal treatment of new religious movements by examining the interaction between the Jehovah's Witnesses and the legal systems of the United States, Russia, and Spain. Its focus is not so much on the content of religion law in each country, but rather its methodology--that is, the sources and processes by which the law is developed and enforced. An underlying assumption is that the methods are inseparable from the law and integral to its significance.

Part II discusses a historical example of reciprocal effects on both the law and the religious movement, focusing on the United States in the period around the Second World War, when the Witnesses were a relatively new and unpopular movement. It uses the metaphor of a constitutional conversation to capture distinctive aspects of the interaction. Part III uses the metaphor to describe contemporary experiences of the Witnesses with the legal systems of Russia and Spain. Finally, Part IV draws comparisons between these European and the U.S. methods. This Part assesses each in terms of its ability to allow development of legal norms while maintaining the stability required for the rule of law, efficiency and fairness, and its potential to respond to minority religions.

Including new religious movements in a creative conversation about religious freedom and governmental regulation by giving them legal claims for protection has yielded positive results. The Witnesses' experience in the United States illustrates this in both the law's stable development and the movement's inclusion in larger society and legal institutions. It demonstrates that tension between new religious perspectives and established norms can be negotiated in an adversarial courtroom setting if the judicial decision is able to affect the governing legal standards. Russia and Spain, which are unlike the United States due to their civil-law traditions and histories of state-sponsored religions, appear to have successfully begun a similar approach. Their processes may result in greater predictability than the U.S. approach, but they may have greater difficulty responding to minority views.


    1. Introduction

      The experience of the Jehovah's Witnesses in the United States is a case study of interaction between a relatively new and unpopular religious movement and a legal system. This interaction had a significant effect both on the system and the movement. (1) U.S. law was reformulated to allow restriction of socially harmful aspects of the group's behavior while protecting its religious activities from unnecessarily adverse regulation that would violate fundamental rights. The movement itself was reformed as well, from one scornful of civil authority and hostile toward organized religion to one that styled itself as a religion and obeyed court decrees. In addition, the movement gradually became less confrontational and provocative and adopted a more tactful and socially acceptable approach. Both the salutary and less desirable aspects of this interaction between the movement and the law are partially attributable to distinctive aspects of U.S. legal methodology.

      The metaphor of a public conversation captures distinctive aspects of this legal method. (2) The text of the U.S. Constitution set the parameters and subject matter of the conversation; the legal disputes generated conversation on varied topics, with specified participants and rules, in the specific locale of the courtroom. The conversation would significantly change the meaning of the constitutional text, as well as the Jehovah's Witnesses' self-understanding and behavior.

      The U.S. legal system was accessible to this new religious movement, and ultimately the Witnesses received discrete attention through full public hearings. This occurred because the system was flexible, allowing alternate recourse to another decision-maker if officials at one level of government were hostile, and providing for review and reconsideration of decisions and governing rules. The system was able to protect the Witnesses' beliefs and essential activities while allowing regulation of behavior necessarily opposed to legitimate governmental interests. These aspects of the conversation were partially due to the brief and broadly textured governing constitutional provisions being particularly suitable to judicial enforcement; (3) reliance on the gradual, case-by-case method of the common law and its avoidance of comprehensive regulation; and the pervasive effect of national constitutional law on the "ordinary law" of local administrative regulation.

      This also explains the less desirable aspects of the interaction. The Witnesses did not encounter an easily accessible, understandable, or speedy system of comprehensive religious regulation. On the contrary, their success followed a slow and sometimes erratic path of enduring persecution at private and official hands; extensive periods of uncertainty as to their legal protection; and expenditure of large amounts of time, money, and energy. (4) The type of conversation described above meant that regulation was episodic rather than comprehensive; therefore, rule formulation and dispute resolution were gradual rather than immediate. Decision-making was neither directly democratically accountable nor transparent. Dispute resolution was inefficient because it was complicated by alternative fora and ultimately required a lengthy appellate process. At times, the conversation gave both the Witnesses and regulatory authorities uncertain and shifting guidance on the law's requirements.

    2. Interaction Between the Jehovah's Witnesses and the U.S. Legal System

      1. The Jehovah's Witnesses in the United States

        The Jehovah's Witnesses movement is an indigenous American form of Protestant Christianity (5)--millennial, internationalist, apolitical, authoritarian, and fundamentalist--that preaches the inerrancy of its version of the Bible. (6) Begun as a small group of Bible students in Pennsylvania in the 1870s, its official website says the movement now has "6.4 million practicing members organized into more than 95,000 congregations in some 230 lands." (7) Its members are ethnically or racially indistinct and represent a wide range of social classes, although generally they are not among the least or most privileged. (8) Nor have the Witnesses appeared to be especially inclined toward economic or political activism. (9) Nevertheless, their adherence to certain beliefs has caused friction with civil authorities in the United States and elsewhere.

        One such belief is neutrality toward, or non-involvement in, government. Witnesses claim...

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