Barbara A. McGraw and James T. Richardson
Although the United States Constitution presumably was designed to avoid “regulation” of religion, there is an interplay between religious individuals and private organizations, on the one hand, and the state, on the other hand, which has a regulatory effect on religion in some areas of public life. The First Amendment’s “Religious Clauses” prohibit an establishment of religion and preserve the right to free exercise of religion. An important area of contention and development in legislation and Supreme Court jurisprudence involves free exercise accommodations or exemptions to laws and rules that generally apply to everyone. These are particularly at issue in the workplace, in correctional institutions, and in the military. The latter two give rise to establishment issues, which have been resolved in favor of free exercise, as government support of religion has been held to be necessary to preserve the free exercise rights of inmates and service personnel. The enactment of the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) have led to a much greater deference to religious rights, resulting in accommodations that would not have been required under preexisting legislation and judicial interpretation. Another such area involves religious organizations themselves, in particular issues regarding tax-exempt status, land use, and faith-based initiatives. A provision in the tax code known as the Johnson Amendment, which restrains religious (and other tax-exempt organizations) from certain political activities, has been challenged recently as a limitation on free speech, however without success so far. Issues involving local government limitations on religious organizations’ land use through zoning restrictions are now being addressed more favorably for religious organizations through the land-use provisions of RLUIPA, although not without controversy. Faith-based initiatives have promoted religious organizations, or faith-based organizations (FBOs), as important government partners, which are eligible to receive public funds for the delivery of social services.
Since the late 20th century, there has been a gradual, but significant shift toward greater respect for individuals’ and groups’ religious rights, especially reflected in recent legislation and Supreme Court decisions. Such trends suggest that, although religion has come into conflict with legal-policy developments in other areas, such as those involving gay marriage and contraception coverage, the right to practice one’s religion and participate in public endeavors alongside nonreligious individuals and groups, is likely to continue to expand for the foreseeable future.
Peter J. Dixon
Reparations are among the most tangible, victim-centric, and personal of processes in the transition from violence to peace, symbolizing the recognition that an individual has been harmed and has rights in the eyes of the state or international community. Reparations are also an inherently political project, transforming official visions of violence, responsibility, and victimization into material and psychological benefit. Despite the power of reparations to shape transitions from violence to peace, they have been too often ignored in practice, leaving most victims of gross violations of human rights and serious violations of international humanitarian law without reparation. Partly as a consequence, research has tended to focus more on “harder” processes, like trials and truth commissions, than on the “stepchild of postconflict justice.” Yet, there have been significant developments in reparations theory and practice that motivate key outstanding questions for researchers.
Reparations derive their symbolic power from the law, which is an imperfect tool for responding to the varied forms of violence experienced in conflict and to the diverse, sometimes contradictory, priorities and needs that people hold. In such contexts, there is an inherent tension between expanding reparations programs to be inclusive and adaptable and preserving their fundamental distinction as a justice process. This is a difficult balance to strike, but there are frameworks and questions that can offer useful guidance. In particular, the lenses of economic violence and positive peace are useful for articulating the role of reparations in postconflict transitions, offering conceptual expansion beyond transitional justice’s traditional concern for political violence without delving too far into the customary terrain of development or postconflict reconstruction.
Yet, the specific mechanisms through which the inward and outward feelings and attitudes and broader social changes that reparations are expected to produce remain undertheorized in transitional justice scholarship, in large part because of a lack of empirical evidence about how recipients experience them in practice. Does the restoration of civic trust, for example, depend upon recipients of individual reparations telling their neighbors about their payments? Does recognition as a citizen depend upon a beneficiary publicly self-identifying as a victim? Questions like these about the particular variables that drive reparations outcomes represent the next frontier for transitional justice researchers interested in the role of reparations in the transition from violence to peace.
Sex Reclassification for Trans and Gender Nonconforming People: From the Medicalized Body to the Privatized Self
Sex reclassification is a core issue of gender nonconforming legal engagements. Access to proper identification documents for trans and nonbinary people relates to lower levels of exposure to anti-trans violence, discrimination, and suicidality. In the first decades of the 21st century, the majority of global jurisdictions have seen some kind of reform with respect to sex reclassification. Nonbinary classifications, such as the X marker, are also becoming available for those who wish not to be classified as either M or F. Across the globe, five major policy streams can be found: total ban on reclassification, that is, having no law or policy in place that allows for reclassification; reproduction-related prerequisite, that is, requiring applicants to undergo sterilization or genital-related surgery; other medical intervention-based schemes, that is, requiring applicants to provide proof that they have modified their body using some kind of gender-related medical technology; corroboration requirements, that is, requiring that a third party, usually a medical professional, corroborates the identity of the applicant; and the emerging “gold standard,” gender self-determination, that is, laws and policies requiring only an expression of a desire or need to be reclassified.
These streams of policy provide varying levels of access to proper identification documents and place different burdens on applicants, some requiring bodily modifications while others rely on autonomous will. Yet all these policies still demand an alignment between the internal truth of the body and external facts, resonating with the logic of birth assignment of sex itself—that is, the idea that the allocation of differentiated legal status of M or F reflects an immutable truth about legal subjects. Current laws and policies fail to address harms caused to gender nonconforming people by state mechanisms themselves. They only provide remedies ex post facto. In the early 21st century, all countries assign a differentiated legal status of either M or F at birth based solely, in almost all cases, on external genitals of newborns. This differentiated legal status is recorded on the birth certificate and becomes a part of one’s legal identity for life. This allocation of status reflects the idea that external genitals of newborns are proof of their owners’ future roles as men or women, that is, an idea that there is a pre-legal alignment between certain bodily configurations, social role, and gender performance. This mundane administrative mechanism not only justifies different treatment for men and women but also marks trans and nonbinary people as others. In order to better address the harm caused by systems of gendered distribution of resources and opportunities, there is a need to go beyond sex reclassification to question birth assignment itself.
Timothy R. Johnson
The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. Understanding this process will allow scholars, students of the Court, and Court watchers alike to gain a better understanding of the way in which the justices conduct their business and to come to terms with some of the most important legal and political decisions in our nation’s history. Combining a theoretical account of Supreme Court decision-making with an examination of its internal decision-making process illuminates this opaque institution.
Subnational policymaking is central to LGBT politics and law, in contrast to other arenas of policymaking for marginalized groups. With barriers to national policymaking in Congress and in the federal courts, LGBT rights activists have leveraged opportunities at the state and local levels to create LGBT-supportive policies. Opponents have also used subnational politics to further their agenda, particularly direct democracy, while LGBT rights activists have used elite politics, such as state courts, effectively. Subnational LGBT politics is also marked by a significant variety in policy outcomes, with a notable urban and suburban versus rural divide in policymaking and in the presence of openly LGBT elected officials. The case of LGBT policy and law has caused scholars to rethink questions such as the role of public opinion in state policymaking, morality politics, and courts and social change.
Charles M. Cameron and Lewis A. Kornhauser
We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member (“collegial”) court employing the Supreme Court’s very distinctive and highly unusual voting rule.
The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court’s voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.
Cyanne E. Loyle
Armed conflict is ultimately about the violent confrontation between two or more groups; however, there is a range of behaviors, both violent and nonviolent, pursued by governments and rebel groups while conflict is ongoing that impacts the course and outcomes of that violence. The use of judicial or quasi-judicial institutions during armed conflict is one such behavior. While there is a well-developed body of literature that examines the conditions under which governments engage with the legacies of violence following armed conflict, we know comparatively little about these same institutions used while conflict is ongoing.
Similar to the use of transitional justice following armed conflict or post-conflict justice, during-conflict transitional justice (DCJ) refers to “a judicial or quasi-judicial process initiated during an armed conflict that attempts to address wrongdoings that have taken or are taking place as part of that conflict” (according to Loyle and Binningsbø). DCJ includes a variety of institutional forms pursued by both governments and rebel groups such as human rights trials, truth commissions or commissions of inquiry, amnesty offers, reparations, purges, or exiles.
As our current understanding of transitional justice has focused exclusively on these processes following a political transition or the termination of an armed conflict, we have a limited understanding of how and why these processes are used during conflict. Extant work has assumed, either implicitly or explicitly, that transitional justice is offered and put in place once violence has ended, but this is not the case. New data on this topic from the During-Conflict Justice dataset by Loyle and Binningsbø suggests that the use of transitional justice during conflict is a widespread and systematic policy across multiple actor groups. In 2017, Loyle and Binningsbø found that DCJ processes were used during over 60% of armed conflicts from 1946 through 2011; and of these processes 10% were put in place by rebel groups (i.e., the group challenging the government rather than the government in power).
Three main questions arise from this new finding: Under what conditions are justice processes implemented during conflict, why are these processes put in place, and what is the likely effect of their implementation on the conflict itself? Answering these questions has important implications for understanding patterns of government and rebel behavior while conflict is ongoing and the impacts of those behaviors. Furthermore, this work helps us to broaden our understanding of the use of judicial and quasi-judicial processes to those periods where no power shift has taken place.