Unlocking the Legal Deadlock over Dreadlocks in Kenyan Schools: Constitutional Law, Rastafarians, and Religious Freedom

2020 ◽  
Vol 9 (2) ◽  
pp. 388-403
Author(s):  
Brian Sang YK
Keyword(s):  
Secondary School ◽  
Constitutional Law ◽  
Religious Freedom ◽  
Right To Education ◽  
High Court ◽  
Crucial Step ◽  
Context Sensitive ◽  
Legal Implications ◽  
School Rules ◽  
Religious Reasons

Abstract Legal recognition of Rastafari as a religion is a crucial step in enabling its adherents to enjoy the full scope of their religious freedom. This article considers and critiques the legal implications of the High Court of Kenya’s decision in JWM (alias P) v Board of Management O High School. In JWM, the headteacher of a secondary school decided that a Rastafarian girl who wore dreadlocks for religious reasons should be excluded from the school and only be readmitted once she had cut them as her hairstyle breached school rules. The High Court concluded that this was a violation of the student’s right to education and religious freedom. Though welcoming the JWM verdict as legally correct, this article reflects critically on how the Court arrived at its conclusion. It reviews the High Court’s reasoning in JWM and offers a constructive analysis of the likely effect of JWM on Kenyan education institutions and their uniform policies. The article advocates the need for principled, context-sensitive and methodical approaches to adjudicating freedom of religion claims so as to protect the rights of religious believers and secularists alike.

scholarly journals The Narrative Model of Constitutional Implications: A Defence of Roach v Electoral Commissioner

2019 ◽  
Author(s):  
Jonathan Crowe
Keyword(s):  
Constitutional Law ◽  
Social Practices ◽  
Court Decisions ◽  
High Court ◽  
Fictional Narratives ◽  
Narrative Model ◽  
Way Of Thinking ◽  
Relationship Of ◽  
The Relationship

The role of implications in Australian constitutional law has long been debated. Jeffrey Goldsworthy has argued in a series of influential publications that legitimate constitutional implications must be derived in some way from authorial intentions. I call this the intentionalist model of constitutional implications. The intentionalist model has yielded a sceptical response to several recent High Court decisions, including the ruling in Roach v Electoral Commissioner that the Constitution enshrines an implied conditional guarantee of universal franchise. This article outlines an alternative way of thinking about constitutional implications, which I call the narrative model. I argue that at least some constitutional implications are best understood as arising from historically extended narratives about the relationship of the constitutional text to wider social practices and institutions. The article begins by discussing the limitations of the intentionalist model. It then considers the role of descriptive and normative implications in both factual and fictional narratives, before applying this analysis to the Australian Constitution. I argue that the narrative model offers a plausible basis for the High Court’s reasoning in Roach v Electoral Commissioner.

The Place of the Niqab in the Courtroom

ICL Journal ◽  
2015 ◽  
Vol 9 (1) ◽  
Author(s):  
Vrinda Narain
Keyword(s):  
Supreme Court ◽  
Religious Freedom ◽  
Minority Rights ◽  
Fair Trial ◽  
Freedom Of Religion ◽  
Reasonable Accommodation ◽  
Critical Multiculturalism ◽  
The Supreme Court ◽  
The Right ◽  
Religious Reasons

AbstractThis paper analyzes the Supreme Court of Canada’s decision in R v NS, 2012 SCC 72 where the Court considered if a witness who wears a niqab for religious reasons can be required to remove it while testifying. The Court identified the two Charter rights engaged: the witness’ freedom of religion and the accused’s fair trial rights, including the right to make full answer and defense. This paper focuses on those aspects of the Supreme Court’s decision that relate to religious freedom, multiculturalism and reasonable accommodation. Analyzing the Court’s reasoning through the lens of critical multiculturalism, I consider the potential of the reasonable accommodation framework to forward minority rights. I suggest that had the Supreme Court applied an intersectional framework to adjudicating NS’s claim, it could have crafted a more contextual response based on her location along multiple axes of discrimination: gender, religion and racialised minority. This paper aims to contribute to a better understanding of mediating individual and group tensions, to move towards a more inclusive notion of citizenship than can foster a commitment to a shared multicultural future.

Religious Freedom and the Churches: Contemporary Challenges in the United States Today1

2019 ◽  
Vol 33 (2) ◽  
pp. 194-204
Author(s):  
Richard W. Garnett
Keyword(s):  
United States ◽  
Sexual Abuse ◽  
Civil Society ◽  
Constitutional Law ◽  
Religious Freedom ◽  
The United States ◽  
Religious Institutions ◽  
General Decline ◽  
The Supreme Court ◽  
Constitutional Right

A crucial, but often overlooked, dimension of the human and constitutional right to religious freedom is the autonomy of religious institutions, associations and societies with respect to matters of governance, doctrine, formation and membership. Although the Supreme Court of the United States has affirmed this autonomy in the context of American constitutional law, it is vulnerable, and even under threat, for a variety of reasons, including a general decline in the health of civil society and mediating associations and a crisis of confidence and authority caused by clerical sexual abuse and churches’ failure to respond to it.

“The Dilemma to a Free People”: Justice Robert Jackson, Walter Bagehot, and the Creation of a Conservative Jurisprudence

2002 ◽  
Vol 20 (3) ◽  
pp. 517-539 ◽  
Author(s):  
Patrick Schmidt
Keyword(s):  
Twentieth Century ◽  
Cold War ◽  
Free Speech ◽  
Constitutional Law ◽  
Historical Context ◽  
High Court ◽  
The Cold War ◽  
Free Speech Rights ◽  
Free People ◽  
The U.S

Even today, the U.S. Supreme Court's decision in Terminiello v. City of Chicago (1949) strikes students of constitutional law as a vexing factual situation. The problems the case posed for the High Court are all the more daunting considering its historical context, directly following the nation's confrontation with Nazism and standing on the cusp of the Cold War against Communism. In the broader view, most observers would locate the decision within the ascendance of liberal protection for free speech rights occurring over the second half of the twentieth century. But progressive accounts should not be allowed to mask the contemporary momentousness for the justices hearing the case. Indeed, in this constitutional conflict over the speech of a rabble-rousing priest was lodged a sober question about the polity's health at that time and the preferred response to the nation's need.

scholarly journals Prześladowanie, dyskryminacja czy uprzedzenie? Taksonomia działań i zaniechań wymierzonych przeciwko wyznawcom religii

2021 ◽  
Author(s):  
Maria Moulin-Stozek
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Religious Beliefs ◽  
Religious Freedom ◽  
Religious Minorities ◽  
State Institutions ◽  
Adequate Response ◽  
State Actors ◽  
Democratic Societies

Some of the most important constitutional law principles of democratic societies include the principle of religious freedom and the principle of secularity. However, in many countries these principles are not being followed, which may lead to violations of human rights. Actions and omissions in this context may be carried out by state institutions, individuals and non-state actors and have wider societal consequences. For instance, state imposition of religious beliefs may affect not only the rights of religious minorities, but also other minorities and women. The purpose of this report is to create a taxonomy of these actions and omissions to help develop an adequate response. This report was requested by the Institute of Justice of the Ministry of Justice.

Religious Freedom and Unemployment Compensation Benefits

1995 ◽  
Vol 24 (3) ◽  
pp. 315-330
Author(s):  
Paul S. Greenlaw ◽  
John P. Kohl
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Religious Freedom ◽  
Unemployment Compensation ◽  
General Law ◽  
The Supreme Court ◽  
Religious Reasons

One key issue which has surrounded the payment of unemployment compensation benefits has been whether states could deny payment of such benefits to individuals who were out of Work for religious reasons. This presented a classic clash between state denial and First Amendment religious protections. In all such confrontations from 1963 until 1990 the Supreme Court sided with the claimant, but reversed itself in that year in Oregon v. Smith. This reversal triggered off the introduction of two House Bills calling for concepts to be enacted into general law which would be congruent with the earlier Supreme Court compensation decisions.

Centenary of HM Seervai – Doyen of Indian constitutional law – an Australian appreciation

Legal Studies ◽  
2007 ◽  
Vol 27 (3) ◽  
pp. 361-378
Author(s):  
Michael Kirby
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Fourth Edition ◽  
High Court ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Judicial Authority

For much of the second half of the twentieth century, HM Seervai was a leading advocate of the Bombay High Court. He argued some of the most important constitutional cases decided by the Supreme Court of India and eventually resolved in 1970 to write his Constitutional Law of India. It became the leading text on Indian constitutional law. It is still in widespread use. Many instances of recent citations are quoted. But it is not the usual commentary on the text of the Indian constitutional and case law. Instead, the book contains a running discussion on the shifts in direction as well as sharp criticisms where Seervai felt that the courts had strayed from correct constitutional doctrine. Seervai died in 1996 as the fourth edition was just completed. In this paper, originally given as a lecture in Mumbai in 2007 on the centenary of Seervai’s birth, the author questions Seervai’s testamentary prohibition on posthumous editions of his text. He urges that a new edition should be produced to keep Seervai’s legacy alive not only in India but in other constitutional democracies where Indian judicial authority is increasingly cited.

Conclusion

2018 ◽  
Author(s):  
Lucas A. Powe
Keyword(s):  
Federal Government ◽  
Judicial Review ◽  
Constitutional Law ◽  
Religious Freedom ◽  
Civil Liberties ◽  
Law And Politics ◽  
State Capture ◽  
Roe V Wade ◽  
Relationship Of ◽  
The Relationship

This chapter concludes that the book has discussed Texas's influence on all the doctrinal areas of modern constitutional law, showing that constitutional cases litigated by and in the state capture the major themes of the relation of law and politics in the entire country. In addition to representing all doctrinal areas of constitutional law, Texas cases revolve around the major issues of the nation, from race to wealth and poverty to civil liberties and the relationship of the states and the federal government to war. This conclusion summarizes some of those important cases, including City of Boerne v. Flores, an exercise in judicial review striking down the Religious Freedom Restoration Act as it applied to states; Texas v. Johnson (flag burning); Reagan v. Farmers' Loan and Trust (railroad rates); Lawrence v. Texas (homosexual sodomy); and Roe v. Wade and Whole Woman's Health v. Hellerstedt (abortion).

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