Volume 18, Issue 2 - Rethinking the Public-Private Divide: Law and Religion in the Modern State; Co-edited by Jaclyn Neo and Gila Stopler

In illiberal contexts, religion can be mobilized to support conservative legal reforms in the areas of gender, sexuality, and reproduction. However, the role of religion in illiberal agendas that roll back the rights of women and LGBTQ populations is unclear and the subject of scholarly debate. This article seeks to add a greater level of granularity to these discussions. It takes the role of “Christianity” in illiberal contexts in Europe as a case study and triangulates three theoretical perspectives. A first perspective stresses the contribution of Christianity to anti-gender backlash (doctrinal, institutional, and material); a second one highlights the distinct contribution of illiberal politicians; a third one tackles the problem by collapsing binary oppositions under a queer theory framework (such as that between gender and religion, and illiberal politicians and their followers). Ultimately, adding granularity to these discussions can help make sense of the current moment.

Advertisers in Israel routinely omit representation of women and girls as a form of adaptation to norms prevalent among ultra-Orthodox Jewish communities, by which the representation or allusion to a woman’s body, voice, or garments is considered immodest and distracting. What, if any, should be the response of antidiscrimination law to exclusionary advertisements, and why is this question worth exploring? This article argues that laws banning discrimination in the provision of products and services should also apply to advertisements that categorically refrain from presenting women. Beyond protecting individual members of vulnerable groups, antidiscrimination law should partake in freeing the public sphere of messages that reinforce discriminatory values. The intended, overt, and complete denial of women’s existence merits the law’s intervention in commercial speech. After conceptualizing the harm caused to unspecified individuals and defining discriminatory advertisements, we outline the considerations that should guide the designing of rules against discriminatory ads and apply them to a set of real-life incidents of exclusionary advertisements, demonstrating how to assess the severity of discrimination in each case. Finally, we consider the free speech implications, as well as the argument that liberal multicultural accommodation renders “modest” advertisements legitimate.

Israel’s conduct in the Occupied Territories in recent decades has been profoundly affected by three theologies: the messianic-kabalistic theology of Rabbi Abraham Yitzhak Ha-Cohen Kook and his son Rabbi Zvi Yehuda Ha-Cohen Kook; the messianic-Hasidic-kabalistic-racist theology of Rabbi Yitzhak Ginsburg; the violent, racist theology of Rabbi Meir Kahane. In the spirit of the three theologies, Israeli politics of the past four and a half decades has set the continuous possession of Judea and Samaria, and the deepening and expansion of the settlement project therein, as the supreme goal of Zionism, Jewish nationalism. Moreover, the three theologies dictated much of the settlement policies of the government. Additionally, the three theologies have dictated much of the daily practices to which the Palestinian residents of the Territories have been subjected. All of this means that soldiers who are required to serve in the Occupied Territories, to die in them, and to kill Palestinians in the course of their military service therein, have been subjected to a politics motivated, to a substantial extent, by a religious culture premised on religious theologies. If such soldiers wish to refuse to abide by the orders given them to serve in the Occupied Territories, they can resort to the two traditional doctrines recgnized by liberal jurisprudence: the doctrine of civil disobedience and the doctrine of conscientous objection (Often there is an overlapp between the two defences). I argue that in addition to these two traditional doctrines, secular soldiers who are asked to serve in the Occupied Territories may resort to a doctrine I call “culture-based refusal.”

This article argues that the notion that state and religion should be strictly separated, resulting in a condition that is often captured by the metaphor of the “public-private divide,” is both unfounded and dangerous. It is unfounded in the sense that at least in modern functional democracies, the state and religion are not actually separated but are in fact constantly interacting and affecting one another. It is dangerous in the sense that if church and state could truly be separated, it would pose an existential threat to modern democratic-constitutional governance.