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Copyright of European Review of Public Law is the property of European Public Law Organization and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

From the mid‐eleventh century, the reformed papacy launched a campaign against clerical marriage that, within a hundred years or so, would largely succeed in establishing the priesthood as a celibate (if not always chaste) caste. According to the reforming monk Peter Damian, women who associated with priests formed a particular target of papal discipline: Peter reports that Pope Leo IX ruled in 1049 that such women should be made slaves of the Roman church. This paper revisits sources concerning the reported enslavement of clerics' women, arguing that it was Peter (and not the pope) who promoted enslavement and, moreover, that Peter's ideas were never broadly adopted. [ABSTRACT FROM AUTHOR]

The article explores Buddhist clerical privileges and jurisdictional boundaries being acknowledged in the handling of Buddhist clerical crimes in ancient India. Topics discussed include the legal rights and responsibilities of ordained Buddhist plaintiffs with regard to their interactions with lay courts, the historical boundaries between state and church jurisdictions, and the legal recourse available to Buddhist monks and nuns that have been victims of disputes.

This article studies an ecclesiastical census, the Relación de sacerdotes, that was compiled by the Secretariat of the Interior during Mexico's Cristero War in 1929. We propose that this statistical device ultimately helped the Catholic Church and the Portes Gil government to plot a way out of the religious crisis. It did so by providing a mutually acceptable means for priests to register with the postrevolutionary state and by providing a discursive mechanism for the Catholic clergy to present itself to the regime as a national, less Rome-oriented body. The Relación can therefore give historians insights into the contingent and bureaucratic ways that revolutionary and ecclesiastical elites renegotiated the contours of Mexico's secular order. The second half of the article contains an analysis of the Relación. There we argue that the Relación offers a kind of prosopographical and political snapshot of the Mexican clergy during the Cristero Rebellion. [ABSTRACT FROM AUTHOR]

Debates in international forums and in mainstream media on the role, responsibility, liability, and response of ecclesiastical authorities of the Roman Catholic Church (RCC) toward clerical child sexual abuse (cCSA) fail to take into account the historical roots and awareness of the problem. Reports also fail to mention the historic organizational laws RCC developed over centuries. In contrast, RCC documents evidence that the Catholic Church not only carried century’s old history of cCSA, but also repeatedly condemned cCSA by successive papal authorities, organizational laws, and institutional management mechanisms. During the first millennium, however, church laws remained confined to the bookshelves and were not converted into appropriate management policies and infrastructural models. This was largely due to the absence of a central administrative organizational structure, which developed later in the 12th century, following the Second Council of Lateran (1139) when the Papacy asserted its authority to establish administrative control over the organizational church. It was only then that management policies started to be framed and institutional structures enacted to deal more appropriately with cCSA from the 14th to 20th centuries. Despite this, RCC developed a culture of secrecy using clandestine organizational management models and institutional laws prescribed in 1568, 1622, 1741, 1866, 1922, and 1962 which aimed to manage cCSA. The current study traces reported cCSA as far back as the first century and critically examines the organizational laws, and institutional policies developed by RCC to address clerical sexual misconduct up to the end of the 19th century. [ABSTRACT FROM AUTHOR]

The ministerial exception provides that discrimination law does not apply to claims arising out of the employment relationship between religious institutions and their ministerial employees. While the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC suggested that this exception could be waived, others have argued otherwise. The pushback flows from a structural understanding of the Establishment Clause, which holds that the First Amendment creates a structural barrier between the separate sovereigns of church and state. On this understanding, the ministerial exception is simply a recognition of the fact that there are some areas in which the state has no power. But this is an incomplete analysis of waiver. A complete analysis of waiver has both doctrinal and theoretical consequences. Doctrinally, a viable concept of waiver can change the litigation behavior of parties. Theoretically, waiver exposes a flaw in conceptions of church sovereignty. The commentary fails to fully define what it means to be a sovereign, ignoring the fact that some sovereigns, such as states, can waive their immunity. This Note seeks to present a comprehensive theory for the waivability of the ministerial exception. This theory confronts the exception on all three of its theoretical footings: as part of the structural restraint imposed by the Establishment Clause, as part of the right to church autonomy extended by the Establishment Clause, and as part of a church's right to shape its own faith protected by the Free Exercise Clause. [ABSTRACT FROM AUTHOR]

This Article debunks the empirical assumption behind the clergy privilege, the evidentiary rule shielding confidential communications with clergy. For over a century, scholars and the judiciary have assumed generous protection is essential to foster and encourage spiritual relationships. Accepting this premise, all fifty states and the District of Columbia have adopted virtually absolute privilege statutes. To test this assumption, this Article distills data from over 700 decisions--making it the first scholarship to analyze state clergy privilege jurisprudence exhaustively. This review finds a privilege in decline; courts have lost faith in the privilege. More surprisingly, though, so have clergy. For decades, clergy have recast communications to ensure they fall outside testimonial protection--thus challenging how essential confidentiality actually is to spiritual relationships. This Article discusses both why clergy testimony frequently decides the question of privilege and the corresponding query of why some clergy break confidences. This understanding breathes new life into efforts to revise state statutes to reflect the narrowing privilege rather than perpetuate illusory promises of broad protection. [ABSTRACT FROM AUTHOR]

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, decided in 2012, the Supreme Court held that the First Amendment supports a “ministerial exception” defense in anti-discrimination suits by clergy against their institutional religious employers. In advance of the decision, the outcome seemed unpredictable, and the Court’s unanimity arrived as a shock. This paper illuminates the result, reasoning, and unanimity in Hosanna- Tabor. We explain how Hosanna-Tabor stands in a long line of decisions, grounded in both the Establishment Clause and the Free Exercise Clause, that prohibit state adjudication of “strictly and purely ecclesiastical” questions. Part I examines why unanimity on the Supreme Court seemed highly improbable. Other divisions on the Court in Religion Clause cases, the brooding omnipresence of Employment Division v. Smith, and the persistent feminist critique of the ministerial exception all suggested that complete agreement within the Court was unlikely. Part II focuses on the key features of Chief Justice Roberts’s opinion for the Court in Hosanna- Tabor, including the central question of which Religion Clause is doing the primary work. Part III offers our explanation and defense of the exception’s jurisprudential foundation, and shows in detail how the courts – before and after Hosanna-Tabor – have steadfastly maintained that foundation and its relevant boundaries. Part IV highlights the intense and continued division within the academy on the meaning and correctness of Hosanna-Tabor. Part IV A analyzes the work of “the Expanders,” who see Hosanna-Tabor as a significant sign that the First Amendment protects a broad freedom of religious entities to resist general regulation. Part IV.B focuses on “the Re- Rationalizers,” who seek to disconnect Hosanna-Tabor from religion-specific norms, and ground the ministerial exception in the freedom of association. Part IV.C turns to “the Dissenters,” who argue that the ministerial exception is not required by the Constitution and is profoundly misguided. Whether designed to build up the decision or tear it down, the scholars’ overstated claims about Hosanna-Tabor may resonate within the culture wars, but have no foundation in the governing law. [ABSTRACT FROM AUTHOR]

In Spanish law, religious denominations and their ministers benefit from certain juridical statutes that recognize their special nature. These norms, while not numerous, are spread all over the juridical system. This article first of all deals with the concept of religious denomination from a legal perspective in Spanish law. Second, the article analyses the acts and statutes that establish a special regime for religious ministers, both from the personal perspective and considering the religious entity as employer. Third, it discusses positive discrimination, the preferred term in Spain for affirmative action. Finally, it deals with a controversial issue in Spain: the status of teachers of religion, with a special reference to the case-law on the matter. [ABSTRACT FROM AUTHOR]

In October 2013, the American Atheists and the Freedom From Religion Foundation both threatened to sue Montgomery, Alabama over a controversial new initiative: Operation Good Shepherd. This initiative was designed by the city to leverage the resources of local clergy to help prevent crime and comfort victims and their families at crime scenes. While Operation Good Shepherd has received significant media attention following the publication of a September 2013 article in The Atlantic magazine questioning its constitutionality, it is not unique. Dozens of police departments in the past few decades have been teaming up with local clergy to create so-called "police and clergy alliances." This Note will analyze the constitutionality of Operation Good Shepherd and similar police and clergy alliances by applying several of the Supreme Court's Establishment Clause tests to different aspects of the program. This Note will then argue that police and clergy alliances do not violate the Establishment Clause so long as volunteers respect the programs' secular purposes and refrain from proselyting or talking about religious issues without the consent of program beneficiaries. [ABSTRACT FROM AUTHOR]

This paper analyses the mechanisms for monitoring and disciplining clerical lust in the Luso-American space from 1640 to 1750. The paper addresses the units of analysis and then inquires into the action against the lustful crimes (solicitation and sodomy) of the clergy under the jurisdiction of the Inquisition. An examination is then made of the same action in the sphere of the non-heresiarch lustful behaviors which were under the jurisdiction of the Episcopal control, such as concubinage and other forms of illicit cohabitation between the clergy and parishioners. A final issue examined is whether or not the actions analyzed had an impact on the behavior of the clergy, i.e. if the mechanisms of control were effective. [ABSTRACT FROM AUTHOR]

The article discusses the administration of a ministerial exception in legal cases involving torts and contracts in the wake of the U.S. Supreme Court's ruling in the 2012 case Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC which deals with the Americans With Disabilities Act, alleged employment discrimination, and the First Amendment to the U.S. Constitution's Free Exercise and Establishment Clauses. The author argues that contract claims should not be barred by an exception.

The article discusses the relationship between religion and the law in America, focusing on the potential application of a clergy privilege to certain communications involving the Alcoholics Anonymous (AA) recovery organization. Denominational Neutrality, the Christian aspects of AA's Twelve Steps recovery program, and a murder confession-related legal case involving AA member Paul Cox are mentioned. America's Supreme Court and the U.S. Constitution's Establishment Clause are also examined.

When a church is faced with a claim of wrongful dismissal by a member of the clergy, or a claim of vicarious liability for a civil wrong committed by the clergy, to what extent (if any) should the church he exempt from the common law rules that apply to other employers? In Hart v Roman Catholic Episcopal Corporation of the Diocese of Kingston, the Ontario Court of Appeal, in staying a wrongful dismissal action by a clergy member, held that the matter was an ecclesiastical one because the plaintiffs position was established under canon law, and also held that the Church's internal dispute resolution process met the requirements of natural justice and that the plaintiff had not exhausted the process. The Court of Appeal did not make clear, in the author's view, whether it was merely declining to intervene on the particular facts or was treating the Church as having a separate jurisdiction which overrode that of the courts. The latter, she argues, would be inconsistent with the fundamental Anglo-Canadian constitutional principle that there are no private spheres from which legislatures and courts are excluded. It would also be inconsistent with a line of English jurisprudence which treats the employment status of clergy as turning on the same factually oriented test of intention to create legal relations that is applied to any alleged employment relationship, rather than on any claim of a distinct ecclesiastical jurisdiction. The author concludes by proposing that civil claims by clergy members against their churches, and vicarious liability claims against churches, should be governed by several principles which would affirm the basic jurisdiction of the courts over all matters relating to religious institutions, with the courts deferring to the internal procedures of those institutions only where they would defer to the internal procedures of other private institutions. [ABSTRACT FROM AUTHOR]

Historians—both those who concentrate on military history and those who touch upon it in passing—often refer to the ‘laws of war’ in the middle ages without any clear idea of what this term actually implies. Ecclesiastical immunity during warfare has long been held as one such ‘law of war’; this article, however, questions the validity of identifying late medieval ideas of ecclesiastical immunity during wartime as valid ‘law’. The article focuses on English warfare in and around the fourteenth century (c.1290–c.1415), contrasting apparent attempts to protect ecclesiastical property with the widespread destruction of churches, abbeys, and other religious property during wartime. By comparing theoretical military conduct, as stipulated in military ordinances, with actual military conduct in the field, the article seeks to reveal medieval attitudes regarding the limitation of war. A number of English campaigns from Edward I to Henry V are examined, with particular attention given to the Durham Ordinances of Richard II, created on the eve of his 1385 invasion of Scotland. It is argued that notions of ecclesiastical protection contained within military ordinances were based more on politico-military factors than on moral or legal considerations. Furthermore, it is argued, ecclesiastical immunity lacked fundamental characteristics of law—compliance, sanction, enforcement—and therefore cannot be identified as valid ‘law’. [ABSTRACT FROM PUBLISHER]

The article discusses the court case Krystal G. v. Roman Catholic Diocese of Brooklyn filed in the Supreme Court of New York in Kings County, New York. Topics discussed include a lawsuit filed against the Roman Catholic Diocese of Brooklyn by G. Vivian and F. Juan, parents of plaintiff G. Krystal for allegedly negligently hiring, supervising and retaining former assistant pastor, filing of summary judgment motion by the defendant and the court's judgment in favor of the plaintiff.

This study is based on a survey from The Center for Public Integrity that found 49 out of 58 crisis-services programs and clinics recorded higher reports of sexual offenses than were reported in the school's Clery statistics from 2002-2006. My study is a follow-up for the period 2008-2010 for 26 randomly selected universities to determine if the Clery data should still be questioned. Data from the Clery statistics are compared with UCR data from the neighboring cities and towns to estimate whether there is justification to question the accuracy of the Clery Act Data. [ABSTRACT FROM AUTHOR]

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court confirmed what the lower courts had been saying for some time: the First Amendment prohibits the application of the employment discrimination laws to the relationship between a church and its ministers. Despite Hosanna-Tabor's significance, however, the so-called ministeriai exception remains in flux. For one thing, it is still unclear who will be deemed a "minister" for purposes of the doctrine. The answer to that foundational question may be more complicated than it appears. Thus far, courts and commentators have assumed that ministerial status is binary; a given employee either is a minister (in which case the First Amendment completely bars her suit) or she is not (in which case her suit proceeds like any other). That way of thinking may make sense for the easy cases, but it fits uneasily with the wide range of positions that have been labeled ministerial by the lower courts. This Note accordingly suggests an alternative framework that more closely tracks the functional considerations that underlie the ministerial exception. In short, it argues that a revised exception - one that applies to ministerial functions, not ministerial persons–better strikes the balance between antidiscrimination values and religious liberty that the First Amendment requires. [ABSTRACT FROM AUTHOR]

Copyright of História da Historiografia is the property of Sociedade Brasileira de Teoria e Historia da Historiografia and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Discussion of the declared policies of the Catholic Church in England and Wales, since 2001, with regard to the ongoing status of priests convicted in criminal courts of offences against children is presented. The extent to which these policies have followed recommendations 77 and 78 of A Programme for Action (Nolan, 2001a) and the extent to which they have resulted in the laicisation (removal from the clerical state) of priests are both explored, using national data and with reference to two particular cases from the Diocese of Salford. The potentially adverse impact on victims and survivors of any mismatch between the rhetoric of policy and the reality of practice by the Church is emphasised. Data presented demonstrate that, between November 2001 and September 2010, a majority (64%) of relevantly convicted and sentenced priests had not been laicised as would be expected. Suggestion is made that the Church is inhibited in carrying out its declared policies because it is attempting to serve legitimacy communities beyond victims and survivors of clerical abuse. Full commitment to the paramountcy principle by the Church and genuinely independent external scrutiny of its relevant decision-making processes are recommended. Copyright © 2012 John Wiley & Sons, Ltd. Key Practitioner Messages Public declarations from the Roman Catholic Church in England and Wales regarding responses to priests convicted of offences against children cannot be relied on to indicate action taken in particular cases., The mismatch between policy rhetoric and the reality of practice has potentially adverse impacts on victims and survivors., The Church appears inhibited in carrying out declared policies because it attempts to serve legitimacy communities beyond victims and survivors of clerical abuse. [ABSTRACT FROM AUTHOR]

The reputation of the Irish Catholic Church has been damaged, maybe irrevocably, by the extensive evidence of child abuse in its midst. This paper summarises the evidence for that crisis and goes on to offer a multi-factorial and non-reductionist account of the abuse in a wider context. By adopting a systemic approach, this account aims to discern those factors which are peculiar to the Irish case and those that have more general significance for child protection. The Irish case demonstrates a complex set of conditions of possibility for child abuse. Some of these were only relevant to Ireland and the Catholic Church but some were not. In particular, varieties of systemic isolation and the a priori social marginalisation of victims are important to consider as salient risk factors. Copyright © 2012 John Wiley & Sons, Ltd. Key Practitioner Messages Religious settings are sites of vulnerability for children., The Catholic Church has been under particular scrutiny internationally about child abuse in its midst., The Irish Church warrants additional scrutiny because of the enmeshment of State and Church., However, child abuse can be found in other countries, in other denominations and in secular organisations., These general and particular features are best understood using a systemic framework to avoid reductionist accounts of abuse. [ABSTRACT FROM AUTHOR]

The article discusses sexual abuse of children by Catholic clergy, examining the impact on papal power and the sovereignty of the Vatican. It reflects on legal, diplomatic, and financial tensions between Church and state, particularly in Belgium, Ireland, and the United States. The author comments on legal efforts to depose Catholic Pope Benedict XVI and explores the U.S. court cases O’Bryan v. Holy See and Doe v. Holy See, analyzing how they challenge the Catholic Church government's claims of sovereign immunity.

In 2009, Marc and Claire Headley sued the Church of Scientology International and its affiliate, Religious Technology Center, for violating the Trafficking Victims' Protection Act ("TVPA") and for forcing Claire to undergo two abortions. The case was thrown out at the summary judgment phase because the Headleys were considered "ministers" of the Church of Scientology. Under the judicially created "ministerial exception"--an exemption never explicitly endorsed by the U.S. Supreme Court--ministers are barred from suing their religious employer for disputes arising during the course of their employment. Because of the ministerial exception, the Headleys' accusations have gone uninvestigated, potentially allowing the Church to continue to inflict horrific treatment on other "ministers" in its ranks. This Note begins by analyzing the current state of the exemption and its limits. Utilizing Headley as a case study, this Note concludes that the current limits on the ministerial exception are inadequate and proposes that courts consider the 'harm principle" as a limiting doctrine on the exemption. This limiting principle would force the courts to consider physical and societal injuries caused by religious institutional behavior in the ministerial employment relationship in their constitutional inquiries. During the production of this Note, the U.S. Supreme Court heard argument and decided a case concerning the ministerial exception. A brief epilogue addresses the decision and its implications on the limitation set forth in this Note. [ABSTRACT FROM AUTHOR]

Trading activities have been prohibited for the clergy members belonging to the Eastern Christian Church, including the Romanian ones. This prohibition was formulated during the first Christian centuries; in the particular case of the Romanian Orthodox Church, this fact has been renewed through various disciplinary regulations, such as those from the years 1884 or 1949. Recently, in 2008, a new statute of the Romanian Orthodox Church was adopted. Through its provisions, the normative framework related to the forbidding of the trade activities for the priests is being significantly modified. To be more exact, the regulations allow the subjects to carry on commercial activities, but only under some specific conditions. Although the restrictions do not depend on any preliminary agreement from the part of the ecclesiastic authority, they are nonetheless framed by the exercising of such trade acts that" do not infringe upon the Christian morality and the interests of the Church". This provision indicates the presence of a different perspective in the area, which can have as a starting point the hypothesis of an ecclesiastic answer addressed to the problems of nowadays society (starting from people's poor state of living, some clergy members included, and up to the need of a Christian meaning conveyed to some practices that have a neutral essence in themselves). Whatever the motivation, it is worth remembering that even the apostle Paul had exercised some activities with a commercial character, without raising through them the contempt of his community. The author analyses diachronically the prohibition regarding the exercising of trade activities by the Eastern Church clergy members, emphasizing the issues that are allowed and / or forbidden according to the present Christian Orthodox Church legislation. [ABSTRACT FROM AUTHOR]

The article focuses on legal problems involved in the imposition of faith-based treatment of mental illness by parents for their minor children. The nature of religion in U.S. court decisions is mentioned. Liability issues and the lack of standards for clergy providing mental health services are discussed. Legal implications for parental decision making and conduct are discussed.

Four sisters, now in their late fifties and early sixties, were sexually abused during childhood over a four-year span by the same priest. Until recently they told no one about their experience and never received any psychological diagnostic evaluations or treatment. The author conducted detailed psychiatric evaluations of each of the four women while serving as the plaintiffs' expert witness during their lawsuits against the Catholic Church. The suits have been settled, and the women have given written permission to tell their stories. This unique clinical material provides a rare opportunity to describe and understand the ongoing, pervasive effects of untreated, chronic childhood sexual abuse on developmental processes over ha If a century. In each instance the women were describing the details of the abuse and the effects on their development for the first time. The severity of the pathology and the intense shame and anxiety associated with discussing their experiences after so many years raises questions about the choice of treatment and technique, particularly in regard to transference and countertransference issues. [ABSTRACT FROM AUTHOR]

The article elaborates on the Catholic legislative document "Modificaciones a las Normas de los delitos más graves," which concerns cases of sexual abuse committed by clergy. This modification of earlier legislation was submitted by the Congregation for the Doctrine of Faith on July 15th, 2010. The bill's definition of the most serious crimes is outlined, including crimes against the august Sacrifice and sacrament of the Eucharist, and crimes against the sanctity of the sacrament of the Penitence, among others.

A key question in the literature on legal change is whether the law evolves via the conscious efforts of judges or is the result of invisible-hand processes. This paper confirms Priest's claim that when judges are unbiased, selective litigation alone can cause the law to evolve toward efficiency. However, when judges are biased, the direction of legal change depends on whether the extent of judicial bias is large enough to overcome the selective litigation effect. The paper also shows that the desirability of binding precedent lies in its ability to restrain biased judges from driving the law away from efficiency. [ABSTRACT FROM AUTHOR]

The present study offers a reflection about the actual regulation of permanent diaconate --not exempted, perhaps, from certain confusions-- considering three important questions: the relationship between clerical state and conjugal life; the professional work of the permanent deacons and their participation in politics. For that purpose, this study considers as a point of departure the norms of the Code of Canon Law of 1983 about the rights and obligations of the clergy (cfr. cc. 273-289) and the Directory of the Congregation for the Clergy of 1998 about the ministry and the life of permanent deacons, which presents a perspective partially different in some important aspects. Besides, in relation with those same questions, some norms of particular law are studied, concretely the Directories for permanent deacons prepared by the Episcopal conferences of United States and of Brazil, which have been approved ad experimentum in these recent years by the Holy See. [ABSTRACT FROM AUTHOR]

The article features court cases involving various questions of law in Australia and in other Commonwealth nations. Great Britain's House of Lords considered the issue of whether a clergy can be considered an employee in Percy vs. Board of National Mission of the Church of Scotland. The issue of the definition of public worship was considered by the Queensland Court of Appeal in Jensen vs. Brisbane City Council. The Queensland Court of Appeals in R vs. Ping dealt with the issue of torture.

Presents an article which supports the view that members of the clergy in the U.S. who perpetrate sexual harms against children have no claim of ecclesiastical immunity based on the ruling of the Supreme Court in the case Employment Division v. Smith. Explanation that the religious status of persons and the religious character of institutions should not give rise to fiduciary duties as a matter of law; Suggestion that adjudication of wrongful acts in the hiring and supervision of clergy must be conducted with sensitivity to constitutional concerns of both substance and process; Description of the works of the church and religious institutions.

Explores the constitutional disqualification of ministers of religion from sitting in the legislatures of 14 of the American states. Mechanisms for securing the separation of church and state; Struggle of the medieval church for independence of state control; Unconstitutionality of the civil disability provisions.

Discusses the Propery legislation enacted by the Irish Parliaments of William III and Anne. Influence of the legislation on Irish laws; Information on a law that forbids all clergy to enter Ireland after December 29, 1697; Enactment of a law by the Irish Parliaments of William III and Anne that would persuade Irish Catholics to conform to the Established Church.