Friday, June 13, 2014
The Two Newest Faces of the Problem with the Lack of the Rule of Law - a Newborn and a 20-month Old
As a tangential follow-up to my previous post concerning the use of a crime against humanity charge as a way to bolster the rule of law, another heart-wrenching story is gaining international attention.
Meet Maya, the first U.S. citizen to be born in a Sudanese prison while her mother was shackled to prison walls. Meet Martin, Maya's twenty-month old bother, who is probably the second youngest U.S. citizen to be sitting in a Sudanese prison. Their father is a U.S. citizen. Their mother is Meriam Ibrahim, a doctor and a Sudanese citizen, who has been sentenced by a Sudanese court to 100 lashes for adultery because she married a non-Muslim man and to death by hanging (once Maya is weaned) for apostasy for refusing to denounce her Christian faith. Ibrahim was found guilty of apostasy because it was determined that she was Muslim even though she testified she was Christian and raised by her Christian mother when her Muslim father abandoned the family. The trial raises due process issues since three of Ibrahim's witnesses were not allowed to testify.
There are clear human rights violations and violations of Sudanese law. Ibrahim's imprisonment violates the International Covenant on Civil and Political Rights, which, since Sudan has ratified the treaty, guarantees that all Sudanese citizens "have the right to freedom of thought, conscience and religion" and due process of law. Sudan has also ratified the African Charter on Human and People's Rights which also guarantees freedom of religion and due process. Indeed, Sudan's own 2005 interim constitution specifically guarantees the "right and freedoms enshrined in international human rights treaties" ratified by Sudan. Ibrahim's case (and the impact on her children) graphically illustrates the rule of law problem - the laws are in place but not enforced.The pressure from the international community caused some movement, albeit ineffectual as it currently stands. A few weeks ago the Sudanese government pledged Ibrahim's release, but recanted a few days later. This probably is not surprising given the government is headed by Omar al-Bashir who has an outstanding ICC warrant for CAH for his actions in Darfur. What can be done? What should be done? Perhaps with continued and more world-wide pressure (which should be headed by the U.S. given that some of the youngest U.S. citizens - Maya and Martin - are sitting in deplorable conditions), there might be another small step forward even if it simply means more discussion about and attention given to the lack of the rule of law and the consequential human rights violations of women and children. More legal attention and monetary support should be put in place to uphold the rule of law.
Thursday, May 08, 2014
"Religious pluralism, social unity, and the judicial role"
Following up on Paul's posts (here and here and here) and Howard's (here), here is my contribution to the SCOTUSblog symposium on the Town of Greece case. The main point of the post, I suppose, is to express regret (again) about the prominent role played in the dissenting opinions by the "political divisiveness along religious lines" argument. Here is a bit:
[T]he Court’s constitutional charge to “say what the law is” in Establishment Clause cases should not be understood to include addressing and answering what Justice Breyer said was “[t]he question in this case” – namely, whether the town “did too much . . . to promote the ‘political division along religious lines’ that ‘was one of the principal evils against which the First Amendment was intended to protect.’” Justice Kagan similarly called for sensitivity to religious beliefs’ “ever-present potential to both exclude and divide” and framed the Court’s task in terms of identifying and preventing “religiously based divisiveness.” In so doing, she echoed a recurring theme in Justice Breyer’s writings about the Religion Clauses’ “basic purposes”: “They seek,” he said in his Van Orden v. Perry concurrence, “to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike” and – in his Zelman v. Simmons-Harris dissent – to “protect[t] the Nation’s social fabric from religious conflict.” And, in his 2006 book Active Liberty, he argued that judges’ obligation to help “create a framework for democratic government” warranted this social-fabric-management approach to public-religion cases and acknowledged that their duty to police the arena of politics and policy for unsettling threats of faith-related discord could require them to “interpret the [Religion Clauses] more broadly than the Framers might have thought likely.” . . .
It is not clear, though, why our political, cultural, and other “divisions” – which are as inevitable as they are real – should be relevant to the legal question whether a particular policy is constitutionally permissible. . . .
To be clear, I think Paul is right to say that, in some cases, and contrary to the generalized assurances provided by Justice Kennedy, legislative-prayer and similar public-religion cases involve actions and statements that are probably intended to "divide, not to solemnize." Paul also says that "the most effective forces in counteracting this use of legislative prayer for deliberately divisive political purposes will be the supporters of legislative prayer, who have an obligation to condemn this kind of behavior, and not its general opponents" and I agree here, too (though I do not count myself as a "supporter of legislative prayer"). My claim is a limited one: Although a rule against religious establishments seems to me a good way to avoid "political divisiveness along religious lines," courts should not answer questions about what the Establishment Clause permits or prohibits by asking whehter or not a policy or program is associated with, or is predicted to cause, or is observed to be accompanied by such "divisiveness."
Friday, April 25, 2014
Movsesian on "Religion's Social Goods"
Over at First Things, Prof. Mark Movsesian has a post called "Religion's Social Goods," which is a response to the "growing number of legal scholars [who] question whether a justification exists for protecting religion as its own category." (You know who you are!) Mark offers, as an argument (that he thinks can and should appeal to nonbelievers) for treating religion-as-such as "special", the following:
Here’s one such argument. Religion, especially communal religion, provides important benefits for everyone in the liberal state—even the non-religious. Religion encourages people to associate with and feel responsible for others, to engage with them in common endeavors. Religion promotes altruism and neighborliness, and mitigates social isolation. Religion counteracts the tendencies to apathy and self-centeredness that liberalism seems inevitably to create.
In my view, what Mark says here about "religion" is, generally speaking, true and it provides, in many cases, a good reason for accommodating, supporting, and respecting the practice of "religion." At the same time (as Mark acknowledges), "religion" does not always do these things and other forms of commitment and association can provide these goods (sometimes, even if we think not as often) as "religious" ones. So, from the perspective of those who are asking "is religion special?", it might seem that Mark has provided a reason not so much for treating "religion" as special as for treating commitments and associations and activities as special if, when, and to the extent that they provide these "important benefits." And, increasingly (as Mark notes), many think the harms that "religion" is said (accurately or not) to cause weigh pretty heavily against the benefits that it (often, even generally) provides.
Again, I agree that religious (and other) associations often provide these benefits. I also think, though, that the justifiability (and, in our legal order, the requirement) of treating "religion" as "special" probably has as much to do with certain things that I take to be true (but that not everybody does) about human persons and human dignity and the limits on (legitimate) political authority.
By the way . . . if you are interested in law-and-religion, the Center for Law and Religion Forum which Mark and several of his St. John's colleagues run is an invaluable resource. "Follow [them] on Twitter!", etc., etc.
Sunday, February 16, 2014
Nope, Mormons aren't successful because of their legacy of nineteenth-century wealth
Unless you live in a remote cabin without an internet connection you’ve heard that Amy Chua and Jeb Rubenfeld have authored a book, The Triple Package, that purports to explain the economic success of certain ethnic and religious groups – Cubans, Nigerians, Mormons, Jews, some Asian groups, south Asian Indians, and Iranians – in terms of a particular constellation of culturally ingrained outlooks that lead to successful striving. By and large respectable liberal opinion is outraged. The consensus is that Chua and Rubenfeld’s argument is silly and probably racist in some way.
I have no particular sympathy for The Triple Package. I haven’t read the book, but from what I’ve seen it strikes me as a pop-psychology gimmick rather than a serious social explanation. I am sympathetic to the idea that culture matters when it comes to economic outcomes, but I find it’s often invoked as a kind of deus ex machina. I have much stronger sympathies with thinkers like Douglas North, who give explanatory pride of place to institutions. So, I’ve no brief for Chua and Rubenfeld, even though my knees don’t jerk in synch with respectable liberal opinion.
I am, however, both a practicing Latter-day Saint and a student (of sorts) of Mormon history. Hence, what has been most interesting to me about The Triple Package has been the way that Mormonism has played out in the argument over the book’s thesis. Enter Daria Roithmayr. In a hostile review on Slate, she argues that the true explanation for differing economic outcomes across groups lies largely in their initial endowment of wealth, although she is willing to admit room for other factors at the margins. On the Mormons, she writes:
It’s not just that Mormons have developed a “pioneer spirit” or that they believe that they can receive divine revelations, as Triple Package would have us believe. It’s more that the first Mormons started with enough money to buy a great deal of land in Missouri and Illinois. They then migrated to Utah, where Brigham Young and his followers essentially stole land from the Shoshone and Ute tribes, refusing to pay what the tribes demanded, and petitioning for the government to remove them. Beyond thousands of acres of free land, early political control over Utah was helpful.
Hence, Mormon success, such as it is, is due mainly, according to Roithmayr, to the Mormons’ initial endowment of wealth. The problem with this claim is that it is wrong. Roithmayr’s review is not primarily about Mormons, of course, and within a 1600-word article historical nuance goes out the window. The problem with Roithmayr’s claim, however, is not that it lacks nuance. It’s that it is flat wrong.
Roithmayer invokes nineteenth-century Mormon history, which can be divided into two periods. From 1830 to 1847, the Mormons were centered in the eastern United States, first in New York, then Ohio, Missouri, and Illinois. The second period spans 1847-1890, when the Mormons moved en mass to the Great Basin, settled Utah and the surrounding territories, and fought a long battle with the federal government over polygamy that they eventually lost. So during these periods did the Mormons benefit from huge windfalls of wealth that set future Latter-day Saints on the road to economic success?
The early coverts to Mormonism tended to be very poor. Joseph Smith, the religion’s founder, came from an impoverished family of New Englanders trying desperately and ultimately unsuccessfully to make it in upstate New York. Their creditors got the family farm, to which they never had clear title. Most converts came from similar backgrounds. In Missouri the Mormons tried to create their own settlements by squatting on federal land, improving it, and then hoping to purchase it from the federal government when Congress passed one of its periodic pre-emption statutes. (Prior to the Homestead Act of 1862 the federal government demanded payment from those who wished to get title to government land.) When it became apparent that Congress was going to pass a pre-emption statute, non-Mormon elites in Missouri organized mob violence against the Mormons, who were driven from the state. Their improved land ended up in the hands of the leaders of the mob who in due course bought the land from the federal government.
In Illinois, the foundation for Mormon settlement was laid by a large purchase of land from a land speculator. This purchase was financed on credit by non-Mormon investors on the east coast that were betting (unsuccessfully as it turned out) on the long-term success of Mormons in Illinois. The initial speculator, however, did not have good title to much of the land that he “sold,” the Mormons were unable to repay the accrued debt, and Joseph Smith and the church were driven into bankruptcy. To be sure, some Mormons in outlying settlements were able to acquire property independently, but Mormon settlment in Illinois ultimately floated on sea of debt rather than resting on a foundation of wealth. In 1844, a non-Mormon mob murdered Joseph Smith, and thereafter violence against the Mormons increased. Eventually the bulk of the Mormons abandoned Illinois, in most cases selling what property they had in fire sales to finance the purchase of a few wagons. The failure of the Illinois period to produce a pool of Mormon wealth was exacerbated by the fact that after Smith’s murder the Mormon church splintered. Many Mormons remained in Illinois, ultimately leaving Mormonism altogether or founding various splinter sects, the largest of which is now called the Community of Christ. The Mormons that followed Brigham Young west were disproportionately English converts from the slums of Birmingham and were likely to be among the poorest Latter-day Saints.
But what about Utah? Didn’t the Mormons get all this wealth out there?
It is true that the Mormons, like all white American settlers, benefited at the expense of Native Americans. However, the land that they acquired in the Great Basin was extremely marginal. It’s a very arid region that is difficult to farm. Indeed, the Mormons were only able to farm it because their intensely cooperative approach to settlement allowed them to create extensive irrigation networks and provided risk pooling in a marginal setting. Even so, the early settlement of Utah was marked by extreme poverty on the part of the Mormons (something frequently remarked upon by non-Mormon visitors) and periodic brushes with starvation. If the value of land acquired in 1850 by one’s ancestors was a primary determinant of economic performance today the descendants of Mormon pioneers should be impoverished relative to those descended from settlers in Iowa or Kansas.
What about Mormon political power in Utah? Didn’t that translate into wealth in the nineteenth century?
Mormons tried to use their dominance of Utah territory to create a utopian religious commonwealth that they called Deseret or Zion. In the early stages of settlement this intense cooperative ethos benefited Mormons greatly. It allowed them to settle very marginal land and fend off starvation. However, for much the period it probably operated as an impediment to economic growth. The central goal of Brigham Young and his successors was economic self-sufficiency. As is generally the case, however, the push for autarky probably exacerbated poverty rather than alleviating it. The Mormons poured tremendous effort into ultimately doomed projects like growing cotton in the red-rock country of Southern Utah, introducing silk culture along the Wasatch Front, and trying to compete with the furniture manufacturing centers in the East after the coming of the railroad. To support these efforts, the church tried to cartelize the Mormon economy and pushed for boycotts of “Gentile” businesses. These efforts, coupled with polygamy, created chronic political and legal conflict in Utah, which tended to suppress investment and development.
In fairness to Roithmayr, I have spent nearly as many words in this blog post responding to a paragraph or two about Mormonism as she spent in her entire review of Chua and Rubenfeld’s book. Still, Mormon history is one of my interests, and I think Roithmayr gets it wrong, not just in terms of the nuances but in terms of the central claims that need to be true to support her argument. I know nothing about the economic history of Nigerian or Cuban immigrants, but to the extent that one wishes to explain current economic outcomes in terms of economic endowments a century or more previous, Mormons are not a good example. On this point, I suspect that Roithmayr’s argument is driven mainly by the assumptions of luck egalitarianism and critical race theory rather than a clear reading of Mormon economic history.
Saturday, November 16, 2013
"It was 20 years ago today . . ." (Happy Birthday to RFRA)
My friend and colleage Tom Berg has a post -- the title of which I have ripped off here -- noting that today is the 20th anniversary of the signing into law of RFRA. Here is the post:
On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA), which requires that the federal government meet the demanding test of showing a compelling interest before it imposes a substantial burden on sincere religious exercise. A recent event at the Newseum in Washington DC commemorated the anniversary and assessed the future of religious freedom in America. A lot has happened in 20 years. A number of states passed their own versions of RFRA; Congress, responding to a Supreme Court decision, applied the same compelling-interest test to state and local zoning laws and prison regulations; and most recently the statute moved to center stage in providing corporations and individuals with legal arguments for exemption from the HHS contraception mandate. But in the throes of the HHS fight and other culture-wars issues, it is worth remembering what President Clinton said about religious freedom as he signed the legislation:
... We are a people of faith. We have been so secure in that faith that we have enshrined in our Constitution protection for people who profess no faith. And good for us for doing so. That is what the first amendment is all about. But let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another’s faiths, fight to the death to preserve the rights of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.
A few remarks about that quote. The President noted in his remarks the overwhelming consensus behind RFRA back in 1993: a 97-3 vote in the Senate, a simple voice vote in the House; the lead co-sponsors were Ted Kennedy and Orrin Hatch. That consensus has greatly shrunk in recent years, mostly because of the polarizing culture-wars issues that have led many people to treat "religion" as a largely conservative phenomenon, a threat to liberal and progressive values. (See here and here for criticisms of that framing of the issue, presenting reasons why in our polarized society, so-called progressives and so-called conservatives should protect each others' claims of conscience against government interference even though they disagree with each other so sharply.)
Notice the implications of President Clinton's remarks for these matters. First, RFRA protects people of all religious views, all of whom may at point be restricted in their faith by one of the many laws in our complex society. Let's recover the sense of "fight[ing] to the death for the rights of [all] American[s]," whatever their faith, to practice their convictions without disproportionate or unnecessary burdens. Second, President Clinton emphasized that religious freedom does not mean freedom in the catacombs. Religious groups and individuals should be able to follow their values without unnecessary legal restriction not just in houses of worship, but in civil society--in schools, charitable activities, and the workplace--and to bring those values "to the table of American discourse."
In 1993 virtually every member of Congress agreed with those remarks and with the legislation. In 2013, that consensus has shrunk. But we can hope, and make prudent and ecumenical arguments to try to ensure, that enough Americans still agree with it to preserve a solid future for religious freedom.
(HT: for the post title, to Paul McCartney; for the link to the Newseum event, to Kim Colby of the Christian Legal Society; for the booklet on RFRA that includes Clinton's signing statement, the Baptist Joint Committee on Religious Liberty)
I should confess, I suppose, that -- unlike Tom (and most other supporters of RFRA) -- I think (nervously) that Smith is probably right, i.e., that the First Amendment probably does not authorize judicially created exemptions from generally applicable, non-discriminatory laws that implicate religiously motivated conduct. (More here on that.) All the more reason, it seems to me, to welcome RFRA-type legislation at both the state and national levels.
Thursday, November 07, 2013
An exchange among law-and-religion scholars about exemptions and marriage
It is, obviously, a "hot topic" whether and to what extent religious institutions and believers should be accommodated through exemptions from antidiscrimination laws (and regulation more generally). This question runs through, for example, the conversation about the so-called "ministerial exception" and also and increasingly comes up (see, for example, this paper by Doug Laycock and Tom Berg) in the context of drafting legislation regarding the legal recognition of same-sex marriage.
A few days ago, over at the Volokh Conspiracy, a group of prominent scholars (Dale Carpenter, Andy Koppelman, Doug Ne'aime, Chip Lupu, and Bill Marshall) put up a post addressing the then-pending same-sex-marriage law in Illinois and arguing that "recognizing same-sex marriage creates no distinct legal conflict justifying resolution in a same-sex marriage bill" and that "even if one thought that same-sex marriage might newly erode religious freedom through anti-discrimination law, the amendment proposed by the religious-liberty scholars is far too broad."
Today, two other groups (Tom Berg, Doug Laycock, Michael Perry, Carl Esbeck, Ed Gaffney, Chris Lund, Robin Fretwell Wilson, Bruce Ledewitz, and me) put up this response at Mirror of Justice, explaining the need for accommodation and defending the proposal at issue. Both posts, in addition, contain links to longer letters that were submitted to legislatures. The response concludes with this:
Carpenter describes his group as scholars "who support both protecting religious liberty and recognizing the marriages of same-sex couples." To reiterate, our two groups of scholars also include supporters of same-sex marriage (as well as a variety of views on that issue). We too are seeking to give room to both equality and liberty, which should complement rather than be at war with each other. We are seeking a "live and let live" solution for same-sex couples and religious traditionalists—but "live and let live" requires more than highly uncertain protection for religious liberty under pre-existing laws. Just as same-sex couples seek to live out their identity not only in private but through the social institution of marriage, religious believers seek to live out their identity not only in churches but in their faith-based service activities and their daily lives. Minimizing the exemptions in a same-sex marriage bill marginalizes those believers and will result in continuing, unnecessary conflicts that may well harden resistance to marriage recognition among a significant number of people. But same-sex marriage with strong exemptions allows both sides to live out their deepest commitments.
I think it is fair to say that, while the disagreements are substantial and important, real and significant respect and friendship exist among all the signers of both letters.
Monday, September 30, 2013
Thoughts on the Court's new legislative-prayer case
I had this contribution, "Legislative Prayer and Judicial Review", to the symposium on the Town of Greece case that the folks at SCOTUSBlog are hosting. (Go here for a list of all the very-worth-reading contributions, including ones by Prawfs-alums Jessie Hill and Nelson Tebbe.) Here's a bit:
. . . In my view, the court of appeals got it wrong and the Town’s before-meeting prayers are permissible solemnizations rather than an unlawful establishment. What is happening in the Town of Greece is consistent with what has been happening at public meetings since our country’s – and our Constitution’s – beginnings. “Establishments” of religion do exist in the world, but this is not one. Town officials did not purport to draft, let alone to enforce, a religious creed and the government inviting voluntary “chaplains of the month” to pray at a meeting is not very much like the government imposing a prayer-book on churches. “Coercing” religious activity is unconstitutional and unjust, but to characterize the Town’s policy as “coercive” is to expand the both the idea of coercion and the power of judges dramatically and unmanageably.
The Town of Greece case, though, is interesting not only for what it could tell us, going forward, about the Court’s First Amendment doctrines and precedents, about the place of religious expression in the public square, and about the extent to which secular governments may acknowledge their citizens’ religious convictions. The case also provides, I think, a good opportunity for reflection about the role and power of the Supreme Court and about the nature and practice of judicial review in a constitutional democracy like ours. . . .
Sunday, September 08, 2013
Bartrum Reviews "The Tragedy of Religious Freedom"
Ian Bartrum (UNLV) has posted a very generous review of The Tragedy of Religious Freedom (forthcoming in the Journal of Church and State). I wish I could say that I disagreed with the sharp and smart criticisms of the book in Ian's review; but actually, I found myself quite in agreement with them. Still, I hope you will forgive me for quoting from a not-so-critical section:
DeGirolami's is a thoughtful and sophisticated meditation on the protean relationship between law and faith in a society committed to religious freedom. His intellectual and cultural influences are broad and rewarding; his style is rich and accessible; and his critique of both theoretical foundationalism and skepticism is profound and compelling. The Tragedy of Religious Freedom is an important book that will undoubtedly influence and enrich this discussion for years to come.
Monday, August 19, 2013
Announcing the Joint Colloquium in Law and Religion
This course invites leading law and religion scholars to make presentations to a small audience of students and faculty. The schools will be connected through video link so that students and faculty at both schools will be able to participate synchronously in a virtual classroom seminar experience. My colleague, Mark Movsesian, and I are absolutely delighted to be working on this project with Villanova Law School Vice Dean and Professor Michael Moreland.
The following speakers have confirmed:
January 27: Michael Walzer (Institute for Advanced Study) (at St. John's)
February 10: Sarah Barringer Gordon (University of Pennsylvania Law School) (at Villanova)
February 24: Kent Greenawalt (Columbia Law School) (at St. John's)
March 17: Donald L. Drakeman (Cambridge University) (at St. John's)
March 31: Kristine Kalanges (Notre Dame Law School) (at St. John's)
April 14: Steven D. Smith (University of San Diego Law School) (at Villanova)
Topics will be announced at a future date.
For more information, or if you would like to attend the sessions, please contact the Colloquium’s co-organizers, Marc DeGirolami (firstname.lastname@example.org), Mark Movsesian (email@example.com), and Michael Moreland (firstname.lastname@example.org).
Thursday, June 06, 2013
Immovable ladders, the Church of the Holy Sepulchre, and property rightsThis piece, from Slate, by "Atlas Obscura," is wonderful. Was "Andy" striking back at the heavy hand of status-quo bias, trespassing, stealing, occupying, or -- like that French archeologist in Raiders of the Lost Ark, messing with things best left alone?
Friday, May 31, 2013
The title of the post is a moniker Marc DeGirolami kindly gave some of my recent work on the church autonomy doctrine. While I've previously posted a bit on Prawfs about implied-consent institutionalism (although I didn't have the phrase yet), I couldn't help but mention that those thoughts have just been published in two separate articles: (1) Religion's Footnote Four: Church Autonomy as Arbitration, 97 Minn. L. Rev. 1891 (2013); (2) Litigating Religion, 93 B.U. L. Rev. 493 (2013).
On the plus side, I'm excited to see the articles in print. On the minus side, there's nothing I can do to change them when I inevitably receive some devastating criticism of my theory.
Thanks to the many in the Prawfs community that gave me some really great comments while I was working on these two articles!
Non-State Law Beyond Enforcement II
With grading finally behind me, I wanted to post again about non-state law "beyond enforcement." The question I've been exploring is in what ways do various forms of non-state law (such as international law and religious law) function as law even when these forms of law lack the ability to enforce their legal rules?
In my last post, I mentioned a forthcoming book by Chaim Saiman, which conceptualizes Jewish Law as "studied law" as opposed to enforced law. In making this point, Saiman highlights some Jewish legal doctrines that the Talmud explicitly notes are not meant to be applied in the public square, but simply dissected in the study hall. In this way, Saiman disaggregates the very concept of Jewish law from the enforcement of Jewish law.
Now there is a tendency to think that religious law - as opposed to other forms of non-state law - is particularly susceptible to manifesting law-like characteristics outside the context of enforcement. Religious law, at its core, is intended to connect individuals to something outside of this world and so it is not surprising that certain facets of religious law might be directed not to practical this-world enforcement, but to achieving some other-worldly religious value.
While I think this sentiment is true, over-emphasizing the point would lead us to miss the ways in which other forms of non-state law exhibit law-like features even in the absence of enforcement. At the symposium I ran a few weeks back on "The Rise of Non-State Law," Harlan Cohen (Georgia) presented a great paper titled ""Precedent, Audience and Authority." The paper wrangled with the following question: why is it that, even though international law denies international precedent any doctrinal force, precedent is cited constantly as authority in any number of international law fields?
To answer the question, Cohen emphasizes the way in which law - and in particular international law - is a practice with its own (often unspoken) interpretive rules and norms. On this account, Cohen focuses on how precedent speaks to the members of the international law community - the ways in which using precedent generates legitimacy for international law in the eyes of those within the international law community.
One of the striking features of Cohen's analysis - at least striking to me - is the persistence of precedent in the eyes of consumers of law even absent an actual doctrinal basis. It is almost as if, at least in certain legal communities, that law struggles to separate itself from an interpretive method that discounts precedent. All of this struck me as a bit Dworkinian, capturing another important way in which non-state law can function as law outside the context of enforcement. Put differently, certain legal systems can be identified as being systems of law not simply based upon the extent to which the law is enforced, but based upon certain methods of interpretation endemic to law.
In this way, Cohen's notion of international law as a practice parallels Saiman's formulation of Jewish law as studied law. In both instances, we find important ways in which non-state law functions internally as law based upon the way in which the law is interpreted and analyzed. On this account, non-state law can function as law irrespective of whether it is enforced.
Friday, May 24, 2013
Non-State Law Beyond Enforcement
So I've been a bit behind in posting as I slowly drag myself toward the grading finish line (aside: thanks to all my Prawfs' Facebook friends who have been regularly taunted me by noting how long ago they finished grading. I get it - I'm slow). But today I wanted to post again about non-state law, focusing on what it might mean to be law even when the law in question is not enforced.
As an example of this dynamic, I've been reading some advanced chapters of Chaim Saiman's forthcoming book Halakhah: The Rabbinic Idea of Law (Princeton U. Press). One of the key questions Saiman tussles with in the book - and also addressed in his public Gruss Lecture in Talmudic Law - is why there are multiple Jewish legal doctrines which the Talmud expressly states are not intended to be enforced in any circumstance. As examples, Saiman notes how regarding doctrines like the "rebellious son" and the "rebellious city," the Talmud states the "law never did, nor ever will apply." In response to questions as to why there exist laws that are not intended to be enforced, the Talmud simply responds "To study and receive reward."
Saiman's book interrogates this response, exploring what it means to have "studied law" as opposed to "enforced law" - and by extension what it means to be unenforced law. Much of his analysis revolves around contrasting philosophical inquiry and legal inquiry, with the latter funneling the reader into concrete application of core values (in ways that abstract philosophical inquiry often does not) and requiring the reader to inhabit a particular religious world that can more effectively convey principles and values.
In this way, his project is a quintessential example of how the discursive practice of law - and not merely the enforcement of law - serves a unique legal purpose. It is the concrete and detailed method of legal analysis the pulls the reader into the legal text - much like a novel pulls the reader into a narrative - that captures a key facet of how Jewish Law functions as law (one hears strong elements of Robert Cover in Saiman's analysis). Moreover, it also provides important guidance to thinking about the internal elements (as opposed to external manifestations) of law and legal practice - a topic which I hope to explore a bit further in my next post.
Friday, May 17, 2013
Non-State Law and Enforcement
As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise.
One theme that regularly emerges - and is often discussed - in the context of non-state law is the problem of enforcement. Put simply, without the enforcement power of a nation-state, non-state law must typically find alternative mechanisms in order to ensure compliance with its rules and norms. This hurdle has long figured into debates over whether one can properly conceptualize international law as law.
But the focus on enforcement is problematic for a couple of reasons. First of all, the challenge of enforcement for non-state law is in many ways overstated. For example, in a 2011 article titled Outcasting: in Domestic and International Law, Oona Hathaway and Scott Shapiro explored this issue, emphasizing - especially in the context of international - how certain forms of nonviolent sanctions, such as denying the disobedient the benefits of social cooperation and membership, can be deployed as a form of non-state law enforcement. Indeed, the use of outcasting has long been prominent in other areas of non-state law, such as a method to enforce religious law within religious communities.
There's, of course, much more to be said on the relationship between non-state law and enforcement (something I may explore in a subsequent post). But too heavy an emphasis on this piece of the non-state law puzzle is problematic for a second reason - it too often obscures other important ways in which non-state law functions as law. In my next couple of posts what I'd like to do is consider other ways in which various forms of non-state law function as law by focusing more directly on the internal practice of law within the relevant communities.
Tuesday, May 07, 2013
Back in 2011, I attended a symposium on Legal Positivism in International Legal Theory: Hart’s Legacy. The conference was a bit outside the range of topics I usually write about (e.g. religion meets private law). But presenting at the symposium drove home the point to me that international law and religious law scholars are contending with similar inquiries, many of which flow from one core question: what does it means to be non-state law?
When I talk about non-state law, I'm thinking collectively of various forms of law - from religious law to transnational law to international law. Of course, thinking about these forms of law outside of the law of the nation-state has long been at the center of the legal pluralism project. But what is often missed is that lessons from international law are instructive for religious law - and vice versa.
This often overlooked opportunity was largely the motivation behind the "Rise of Non-State Law" symposium I organized last week. To my mind, the papers, presentations and discussion at the symposium were extremely productive and got me thinking even more about the overlap between various forms of non-state law. In my next couple of posts, I'm hope to say a little bit about non-state law, building on some of the insights from the symposium.
Thursday, May 02, 2013
Great to be back and greetings from Washington!
It's great to be back at Prawfs for another guest-blogging stint. I'm looking forward to spending the month talking a bit about some of my favorite topics such as co-religionist commerce, religious arbitration, and non-state law.
My growing interest in non-state law largely traces to my sense that conversations in both international law, transnational law, and religious law share much in common (e.g. discussions of what is law, can there be law without enforcement, how should the state treat competing legal norms etc.). To further this interest, I'm running a symposium in Washington, D.C. today sponsored by Pepperdine Law School and the American Society for International Law titled "The Rise of Non-State Law." The symposium is part of a series run by ASIL's International Legal Theory Interest Group and the papers from today's symposium will eventually become part of a volume published by Cambridge University Press.
I must say the papers submitted (and being presented) by the participants are truly fantastic and have led today to some great conversation and debate. For those who share the interest, here's the full schedule for the day:
8:30 a.m. Breakfast (Tillar House)
9:00 Panel 1—Global Legal Pluralism: Trends and Challenges
- Moderator: John Linarelli (Swansea)
11:00 Panel 2—Non-State Law and Non-State Institutions
- Moderator: Donald Earl Childress III (Pepperdine)
1:00 p.m. Lunch
2:00 Panel 3—The Role of Religion and Culture in Non-State Law
- Moderator: Mortimer Sellers (Baltimore)
4:00 Open Forum
5:00 Closing Comments
Tuesday, January 22, 2013
Why the Movie "Big Fan" Starring Patton Oswalt is Great for Teaching the Free Exercise Clause
If you haven't seen Robert Siegel's 2009 film "Big Fan," starring the hilarious Patton Oswalt as "Paul from Staten Island," a 36 year old bachelor who lives with his mother and whose life revolves around his fanatical devotion to the New York football Giants, then you should go see it as soon as possible. (Here is the trailer). I say this even if you're not a law professor who teaches church/state law. If you are a law professor who teaches church/state law, then consider your obligation to see the movie doubled.
In almost every law and religion class, at some point somebody raises the question of why religion and not other types of belief should be constitutionally protected. This sometimes transitions into a discussion of the various definitions that scholars and courts have given for "religion," including so-called "content based" definitions, which define belief systems as religious or not religious based on their content, e.g, only a belief in a god or an extra-human source of authority counts as religious. Many find these content-based definitions unsatisfactory because they exclude belief systems (maybe Taoism, for example) that we generally think of as religious.
So then we talk about so-called functional defintions of religion--those definitions that define what counts as religion w/r/t what role or function the system plays in the person's life. Maybe each person's "ultimate concern" (as Tillich says) is that person's religion--whether that's Christianity or environmentalism or atheism or their family or whatever. At this point, someone will generally point out, hey wait, does that mean that someone whose whole life revolves around baseball should be constitutionally protected?? Everyone in the class laughs heartily, although also somewhat uncomfortably, because, let's face it, it's not that easy to identify why precisely someone whose life revolves around environmentalism deserves protection but not someone whose life revolves around the Boston Red Sox.
Or the New York Giants, for that matter. Under any fuctionalist definition of religion, Paul's maniacal devotion to his favorite football team qualifies. His fandom is the one thing that gives his life meaning. He dresses in Giants clothes, thinks and talks incessantly about the Giants, adorns the room of his boyhood home where he still lives in Giants paraphernalia, has only one friend, with whom he talks almost exclusively about the Giants, and works as a parking lot attentdant so he has the time and opportunity to draft the passionate pro-Giant, anti-Eagle speeches he gives in the middle of the night on sports talk radio. The religious intensity of Paul's devotion becomes evident in all sorts of ways throughout the movie (I won't ruin it for you)--even the trailer explicitly states that for Paul and his buddy (and lots of other fans as well), football is their religion, and the stadium their church.
I show the trailer at the beginning of my law and religion class and use it to explore the "specialness" (or non-specialness) of religion as compared to other types of belief systems. The Supreme Court famously said that Adele Sherbert, a Seventh Day Adventist, could not be denied unemployment benefits when she refused to work on Saturday. What if Paul refused to work on Sunday? Should he get an exemption from generally applicable laws so that he can worship at his church of choice, even if that "church" is a parking lot outside the stadium where the Giants play (he and his buddy are too poor to buy tickets so they tailgate outside and watch the game on TV from there)? I find that having a real character to refer to when having this discussion of what, if anything, makes religion unique (and/or how we should define "religion") which tends to extend throughout the semester, makes the discussion richer, more grounded in specifics, and definitely more fun.
Do others use film in this way, or related ways, in their courses?
The Competing Claims of Law and Religion: Who Should Influence Whom?
We attract some extraordinary scholars for symposia here at Pepperdine. In case you hadn’t heard, Malibu is a fantastic place for law professors to spend a weekend in January or February. (The forecast for today, January 22, is mostly sunny, 77 degrees. How’re you feeling?)
But it’s also distinct aspects of the law school that attract great symposia. The school’s religious affiliation, for instance, helped prompt an extraordinary conference last winter, “The Competing Claims of Law and Religions: Who Should Influence Whom?” The Pepperdine Law Review has just published the fruit of that conference. (And, as faculty advisor to the Law Review, I’m fond of reading the products of the students’ diligence.)
If you’re interested, check out the work from Abdullahi A. An-Na'im (Emory), Patrick McKinley Brennan (Villanova), Zachary R. Calo (Valparaiso), Sherman J. Clark (Michigan), Robert F. Cochran Jr. & Michael A. Helfand (Pepperdine), Mohammad H. Fadel (Toronto), Chad Flanders (St. Louis), Richard W. Garnett (Notre Dame), John Lawrence Hill (Indiana McKinley), James Davison Hunter (Virginia), Andrew Koppelman (Northwestern), Michael Stokes Paulsen (St. Thomas), Barak D. Richman (Duke), Susan J. Stabile (St. Thomas), Mark Strasser (Capital), and Eugene Volokh (UCLA). (Whew!) You can browse the entire special issue here.
Wednesday, January 09, 2013
The Religious Freedom Rights of Corporations and Shareholders
A late and grateful hat tip to Charlotte Garden, who posted last week about the Seventh Circuit's decision in Korte v. Sebelius. The court granted a preliminary injunction against the enforcement of provisions of the Patient Protection and Affordable Care Act (“ACA”) and related regulations requiring that K & L Contractors purchase health care coverage for employees that included abortifacient, contraception, and sterilization coverage. Accourding to the majority, the plaintiffs had some likelihood of success on their Religious Freedom Restoration Act (RFRA) claim that the required health care coverage put a substantial burden on their free exercise of religion.
Although the case raises a number of interesting issues, I want to focus on the religious freedom rights of corporations and shareholders. It is the corporation that has the obligations to provide health care coverage with certain coverages. However, the court seems to find that the corporation's obligations infringe on the religious liberties of the shareholders. As the court states:
[T]he government’s primary argument is that because K & L Contractors is a secular, for‐profit enterprise, no rights under RFRA are implicated at all. This ignores that Cyril and Jane Korte are also plaintiffs. Together they own nearly 88% of K & L Contractors. It is a family‐run business, and they manage the company in accordance with their religious beliefs. This includes the health plan that the company sponsors and funds for the benefit of its nonunion workforce. That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it.In dissent, Judge Rovner took issue with this, but in a somewhat indirect fashion:
Although the Kortes contend that complying with the Patient Protection and Affordable Care Act’s insurance mandate violates their religious liberties, they are removed by multiple steps from the contraceptive services to which they object. First, it is the corporation rather than the Kortes individually which will pay for the insurance coverage. The corporate form may not be dispositive of the claims raised in this litigation, but neither is it meaningless: it does separate the Kortes, in some real measure, from the actions of their company.
Charlotte Garden takes on the issue of whose religious freedom rights are at issue in her post:
This analysis raises an interesting question about the interplay among the rights of majority shareholders, managers, and corporations after Citizens United. The Seventh Circuit seems to treat them as essentially overlapping, so that government regulation of corporations would be unlawful if it violates the rights of one, two, or all three of the above. But it seems to me that Citizens United could also support the contrary result. For example, if the funds of dissenting shareholders can be used for political speech without violating the First Amendment, then why can’t the Kortes’ funds be used for K&L’s contraception coverage without violating their RFRA rights? The Seventh Circuit doesn’t answer this question, though it seems its answer would have to turn on whether or not the shareholders in question were in the majority—a result that seems both counterintuitive and at odds with the Supreme Court’s approach to dissenters’ rights in other context, including the union dues context.
I agree with Charlotte's thinking here. It is the corporation that is being forced to provide a certain level of health insurance to employees. When does a corporation have rights of religious freedom? The court characterizes the company as "secular," and it is clearly not a religious organization. And if it is the Kortes, rather than the corporation, whose rights are being infringed, when do actions taken with respect to a business entity impinge upon the rights of stakeholders? The court mentions that the Kortes are 88% shareholders and that the business is run by the family according to their religious beliefs. Are these material facts? What if they owned 51% of the company, but it was run by someone else? What if they owned 33% but had de facto control? What if they owned a single share?
This case reminds me in part of Thinket Ink Information Systems v. Sun Microsoft, 368 F.3d 1053 (9th Cir. 2004). In that case, the court held that a corporation had a right to bring suit under 42 U.S.C. Sec. 1981 for discrimination based on race. Although noting that a corporation generally does not have a racial identity, the court found that in the particular case, Thinket had "acquired an imputed racial identity" sufficient to bring a claim. The court stated that: "[t]o receive certain governmental benefits, Thinket was required to be certified as a corporation with a racial identity; further, it alleges that it suffered discrimination because all of its shareholders were African–American." This was enough to give the corporation itself standing under Sec. 1981.
At the time, Stephen Bainbridge characterized the Thinket decision as "just nuts" because the corporation was just a legal fiction and instead represented a nexus of contracts. However, he did allow that "[i]t may be useful to invoke that fiction here, so as to promote administrative convenience by allowing the entity rather than its individual constituents to sue, but it doesn't change the basic theory." A similar problem may be presented here. But at the least, a court should establish whether it is the corporation or the shareholders who have standing to sue for actions required of the corporation. And if it's the shareholders who have standing to sue, it seems unclear when they would be sufficiently entwined with the corporation to get that standing.
Monday, January 07, 2013
Mandatory public education
At Mirror of Justice, frequent Prawfsblawgger Marc DiGirolami passes on a report from the AALS Annual Meeting. Apparently, at the presentation jointly sponsored by the Constitutional Law and Education sections, Dean Erwin Chemerinsky stated (quoting the report) that "the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas."
In my view, this highly illiberal proposal is, to put it gently, morally unattractive (putting aside questions about whether it would achieve or advance the stated objectives). Marc raises some important and interesting questions about it. I'm certainly open to (dramatic) changes in the ways we fund education (e.g., un-linking education funding from local property values), but -- as I tried to flesh out in more detail, a few years ago, here -- the burden the proposal would impose on religious freedom is far more weighty than Chemerinsky seems willing to acknowledge. (For example, the idea that after-school religious education, or even "release time"-type policies, are sufficient to allow all parents and children to exercise their religious-freedom rights is, in my view, mistaken.) A better way, it seems to me, to alleviate some (we can never eliminate all) of the inequalities that Chemerinsky (rightly!) regrets is to expand (and support financially) choices and options, and to include (appropriately qualified) religious schools fully in the enterprise of public education, i.e., educating the public, at public expense.
Wednesday, January 02, 2013
The Citizens United Link to the Affordable Care Act LitigationIt’s not too often that I try to draw a line between my own field of Election Law and the much less familiar field involving the Religion Clauses. That’s a universe I tend to leave to the very capable hands of folks like Rick Garnett, Michael Helfand, and Paul Horwitz. But recent litigation did part of the work, and it raised important issues that, I think, the Supreme Court is ultimately going to need to consider. And it has to do with who, or what, is a person.
In 2010, the Supreme Court handed down its opinion in Citizens United v. FEC, which, among other things, struck down limitations on corporate independent expenditures in the Bipartisan Campaign Reform Act of 2002. One important element of the opinion was the conclusion that the identity of the speaker—in that case, a for-profit corporation—could not be subjected to special restrictions on political expenditures.
This conclusion, according to one justice, prompted pithy bumper stickers regarding corporate personhood. But it’s important to note that even the dissent agreed on larger point: that corporations have First Amendment rights. It’s just that the dissent argued that Congress had a compelling reason to single out for-profit corporations (because of, among other things, their perpetual life, and their ability to aggregate wealth through special tax structures); the majority found no such compelling reason to single out one corporate form over others.
And the dispute was, uniquely, about for-profit corporations. The Supreme Court had previously accepted expenditure limitations placed upon for-profit corporations but routinely rejected similar limitations for media corporations and non-profit “ideological” corporations. In Citizens United, the Court, revisiting its precedent, rejected the argument that Congress had articulated any meaningful distinction that merited a set of rules restricting expenditures for for-profit corporations.
A similar debate is brewing in the context of the Patient Protection and Affordable Care Act. Employers offering health insurance plans must include coverage for FDA-approved contraceptives (including what the FDA calls “emergency contraceptives,” sometimes known as “abortifacients”), sterilization procedures, and other reproduction-related services.
A very small set of “religious employers” is exempt. But there are many more for-profit corporations owned and operated by religious adherents. These corporations may not fit the narrow exemption for “religious employers,” and religious adherents have argued vociferously that even ostensibly “secular” businesses fall under the scope of the Free Exercise Clause and the Religious Freedom Restoration Act (“RFRA”). (There are, of course, nuances between constitutional interpretation and statutory interpretation, which may yield different results.)
Do they? District courts in Colorado, the District of Columbia, and Missouri have punted on the issue. A district court in Oklahoma did the same, in part; but, it also found that, absent precedent that “secular, for-profit corporations” have free exercise rights, plaintiffs failed in their Free Exercise Claims. It also suggested that RFRA applied to “religious organizations, not general business corporations.” Justice Sotomayor, in denying an injunction, specifically noted that the Supreme Court has not addressed “similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders.”
Well, do they? Can the Supreme Court ascribe a telos to for-profit corporations? Does it matter that Hobby Lobby is closed on Sundays? That Mardel Christian bookstores are “dedicated to renewing minds and transforming lives”? If there’s a possible theological dimension to Division I FBS football, would we (or should we) care?
The same questions arose in Citizens United, and they arise here again. There, no one really disputed that media and non-profit ideological corporations had First Amendment protection. Here, no one really disputes that, say, a religious group called O Centro Espirita Beneficiente Uniao Do Vegetal has First Amendment protection.
When it comes to for-profit corporations, however, there are hints (and this is my modest prediction) that the Court’s refusal to inquire into the purpose or form of the corporation in the election law context may very well apply to the religious liberties context. The burdens placed upon corporations are likely to face the same scrutiny, regardless of the purpose or the form of the corporation. And that means, businesses like Hobby Lobby, under the Court’s precedent in Citizens United, would be treated as any other individual, church, or non-profit organization making a Free Exercise claim.
But, would anyone hazard to make a bolder claim?
Monday, November 19, 2012
The Varieties of Co-Religionist Commerce II
As I promised (or threatened?) in my last post, I want to think about "co-religionist commerce" by dividing it up into institutionalist and non-institutionalist domains. In the past, I''ve written and blogged a bit about non-institutional co-religionist commerce - and I'll probably say a bit more about it sometime later this month - but I've recently been working on the institutional side of things in a recent article, Religion's Footnote Four: Church Autonomy as Arbitration, 97 Minn. L. Rev. (forthcoming 2013).
As per the title, what I have in mind in the institutional context are some of the debates over "church autonomy" - that is, debates over the autonomy granted religious institutions over internal decision-making and disputes resolution. Popular advocates of what we might term "religious institutionalism" (i.e. strong protection of religious institutional autonomy) include Prawfs own Rick Garnett (e.g. here) and Paul Hortwitz (e.g. here) and also Steven Smith (e.g. here). Recent debates on this front include those over the contraception mandate and those over the ministerial exception, which (at a minimum) exempts the relationship between churches and their ministers from liability under various anti-discrimination statutes. Among other issues, both of these examples represent some of the inherent complexities of co-religionist commerce; it is frequently difficult to establish the appropriate boundaries for the interpretation, enforcement and regulation of conduct that is motivated by both religious and commercial interests mix.
As has been discussed here on Prawfs previously, there has been some recent push back against this type of religious institutionalism, most notably the recent article by Richard Schragger and Micah Schwartzman, "Against Religious Institutionalism." Much of this criticism has focused on whether religious institutions should have an rights that are not simply derivative of the individual rights of their members. Schragger and Schwartzman simply don't see the existence of a religious institution as adding any reason for increased constitutional protections.
In my next post, I'll give my own take, which tries to strike a balance in between religious institutionalists and their critics.
Monday, October 15, 2012
Confusion about Separation
This blog post, "Of Babies and Beans," by Adam Gopnik, at The New Yorker, is mainly about abortion (and about what Paul Ryan said during the vice-presidential debate on the subject) but it also included some sharp -- but I think misguided -- criticism of what Ryan said about the role of religious faith in citizens' "public" lives. Gopnik characterizes as "disturbing and scary" what struck me as Ryan's (to me)unremarkable observation that “I don’t see how a person can separate their public life from their private life or from their faith. Our faith informs us in everything we do.” Here's Gopnik:
That’s a shocking answer—a mullah’s answer, what those scary Iranian “Ayatollahs” he kept referring to when talking about Iran would say as well. Ryan was rejecting secularism itself, casually insisting, as the Roman Catholic Andrew Sullivan put it, that “the usual necessary distinction between politics and religion, between state and church, cannot and should not exist.” . . .
. . . Our faith should not inform us in everything we do, or there would be no end to the religious warfare that our tolerant founders feared.
Now, I believe strongly -- in part for "religious" reasons -- in the separation of church and state, properly understood. But Ryan did not say that the "distinction between politics and religion" or the distinction between "church and state" (which is a different distinction) "should not exist"; and there is nothing mullah-ish about the statement that faith "informs" people's lives -- public and private -- comprehensively. He didn't say that the positive law should enforce religious teachings or require religious practices, and there's nothing contrary to "secularism" (properly understood) in his statement.
Which reminds me . . . I participated this past weekend, along with a number of Prawfs-bloggers and friends, in a really stimulating and fun roundtable conference at the University of San Diego's new Institute for Law and Religion, on "The Freedom of the Church in the Modern Era." Our own Paul Horwitz's work on the subject was, of course, at center-stage! More on this later (I hope!).
Wednesday, October 03, 2012
Thanks to Dan for the invitation to guest-blog this month. I like the characterization of Sukkot as a holiday of palm fronds and lemony fruit – it sounds so tropical! Here in Boston, Sukkot also means drizzly rain and an abundance of warty gourds. Chag sameach.
During my stint, I plan to post some thoughts on civil justice reform, next month’s judicial elections, and the antebellum Supreme Court’s unhealthy obsession with commas. I look forward to your comments.
Friday, September 21, 2012
"Keep America Weird": One way to think about the HHS mandate . . .
William Mattox writes, in USA Today, that for reasons similar to those that (rightly) make Austin residents eager to "Keep Austin Weird", we should oppose policies like the HHS mandate that have the effect, even if not the aim, of standardizing and homogenizing the sometimes-"weird" institutions and associations of civil society:
I worry that Obama's health care plan is doing to Catholics what those cookie-cutter national chains were threatening to do to Austin's bohemians: Rob them of their distinctive identity. Of their unique character. Of their freedom to be authentic.
Yes, I know Obama's contraception mandate provides an exception for Catholic churches. But it offers no such relief to those running Catholic schools, hospitals and charities who want to live out their faith (and follow their church's teachings) on more than just Sundays. In essence, the Obama administration's message to these Catholics, despite a cosmetic compromise, is akin to telling Austin's bohemians that they can dress like hipsters on the weekends so long as they behave like corporate shills Monday through Friday. . . .
Well, my thirteen-year-old daughter certainly thinks I'm weird . . . I guess there are worse things!
Saturday, September 08, 2012
Why are religious questions out of bounds?
Hello Prawfsblawg participants! It's great to be back -- during my last stint as a prof, a VAP at BU a few years back, I was an occasional contributor to this fine site. And now, as I'm going on the AALS job market for real this fall, it's a pleasure to be back in the PB saddle, as it were.
My two main areas of interest are law & religion, and law & sexuality -- or, best, a combination of the two. I've just finished my Ph.D. in religious studies at Hebrew University, and in my non-prawf time, have been an activist for LGBT people in religious communities. To avoid the taint of self-promotion, I'll omit the title of my book here...
I thought I'd start my new Prawfs career with a question that some people find obvious, but which I find to be a conundrum: why, in elections, are religious questions out of bounds?
As a scholar of religion, I'm used to inquiring into why people hold religious beliefs -- even ones which strike non-believers as absurd -- and of course as a legal academic, I'm accustomed to the social-constitutional norm of separating religious and political questions. But, particularly on the religious studies side, there's no clear reason why judgment calls when it comes to religion are somehow insulated from judgment calls in every other area of life.
Consider an extreme example. If a presidential candidate were a member of a UFO cult, and believed that aliens were going to scoop up all believers in 2013, we might reasonably ask whether such beliefs are incompatible with the long-term vision and planning required of a president -- right?
Obviously, my question here is really about Mormonism, a newish religion which has some tenets most Americans will find very strange. Why is it unfair, as a matter of evaluating Mitt Romney's judgment, to ask whether he believes that God is a corporeal human being? Or whether Romney expects to be physically reincarnated on his own planet? Or whether he believed, prior to 1978, that African-Americans were cursed to be dark-skinned (2 Nephi 5:21), or that dead people could be posthumously baptized? Or how about the cardinal principle of the faith, namely that Joseph Smith discovered golden plates engraved in a foreign language on September 22, 1823, in Manchester, NY -- plates he later returned to an angel?
It's considered doubly verboten to criticize any of these tenets of the faith: first, because Mormonism was, for almost a century, the object of bitter persecution, and second, because questioning someone's religious beliefs is supposed to be off-limits in American political discourse. After all, no one would question a candidate's belief that an omnipresent and incorporeal deity impregnated a 1st-century Palestinian woman, or parted the Red Sea. And the only thing that distinguishes these preposterous beliefs from Mormon ones would seem to be that the former are older and more widespread.
But there are some distinctions.
First, Romney is not just a rank-and-file Mormon. He was a bishop -- not as big a deal as it sounds, since Mormon bishops are locally-appointed and limited in power, but still a big deal. This is someone who has really bought into these beliefs. Doesn't it matter if the beliefs are, well, absurd?
Second, these beliefs may strike millions of people as deeply troubling, and Romney has not been forthright about them. To take but one example, Christians don't believe that God is a corporeal being who has had sexwith women. For Romney, like other Mormons, to glide over the differences between Mormonism and Christianity is dishonest.
Third, religious beliefs, like other beliefs, tell us about the character of the believer and what we may reasonably expect her/him to do. By way of parallel, I think it mattered a lot that George W. Bush was a Biblical literalist and born-again Christian, and I think it was irresponsible that mainstream media never made much of this. I think we can trace many of his demonstrably harmful policy decisions to his religious beliefs: the war in Iraq, his destiny as a world leader, the clash of civilizations, and so on. It's not as if all our "secular" decisionmaking takes place in one part of the brain, and religious decisionmaking takes place in the other. Religious beliefs are as germane to being president as ideological ones.
Now, it may not be a negative for Romney that he believes some of this stuff. America is a heavily religious country, and Romney's faith may be an asset. It's also unclear what the effect of a more honest discourse about religion and politicians would have on Romney's opponent, a longtime Christian who many Americans still believe is a Muslim. Surely Obama would be loathe for anyone to remember his former pastor, Jeremiah Wright, or for anyone to question the secondary role religion has played in his life. No doubt the Obama people are happy to let sleeping dogs lie when it comes to religion.
But I'm not interested in the partisan net gain here. I think it's crazy that our country is considering electing someone who holds beliefs that I find to be so completely untenable -- and I say this not just as a religion scholar but as a somewhat practicing (if not exactly believing) Jew who has written two books on Jewish spirituality. I'm perfectly willing for my religious beliefs to be scrutinized, and I think the way in which I hold them is absolutely relevant to my overall personality. If I were willing to believe what Mitt Romney is apparently willing to believe, I wouldn't trust myself.
Thoughts? Disagreements? I'm working on a larger article on these subjects, so I'm especially eager to hear what you have to say.
Thursday, May 31, 2012
Employees with Religious Attire and the "Back of the Bus"
As a fellow at the Pluralism Project, a Harvard-based research center that explores the state of religious liberty in the United States, I examined an employment discrimination case involving Kevin Harrington -- a native New Yorker of Irish descent who converted to Sikhism as a youth and who has worked for the New York Metropolitan Transportation Authority since the 1980's. Harrington started working for the MTA as a bus cleaner, and for the last two decades has been an MTA train operator. On 9/11, Harrington was able to reverse his Number 4 train, which was headed to the World Trade Center station, and safely discharge his passengers. For this, Harrington was honored by the MTA.
Shortly after 9/11, however, Harrington claimed that the MTA discriminated against him on the basis of his religion. Harrington specifically stated that the MTA informed him that he had two choices: that he could continue working as a train operator only if he wore a cap with MTA's logo, or that he could wear his religiously-mandated turban in the railyard, away from customers. The MTA then told Harrington that he could wear a turban as a train operator only if he attached an MTA logo to it. The MTA apparently explained that the logo was necessary to alert customers and passengers that the person at the helm of the train was indeed an MTA employee -- not, as some would say, a "runaway terrorist." Newsday ran an editorial arguing that "perhaps [the logo] will ward off any biased fears that outsiders have commandeered the system."
The MTA was eventually sued by the Department of Justice, the Center for Constitutional Rights, and the Sikh Coalition, on the theories that the employer's generally applicable uniform policy was being selectively enforced against Sikhs and Muslims, including Harrington, and that the out-of-customer-view option was impermissible under Title VII. A CCR attorney, for example, stated that the MTA engaged in "a calculated attempt" to hide certain workers "on the grounds that they 'look Muslim' and might alarm the public for that reason." Yesterday, the MTA settled the case, agreeing to permit employees to wear religious headgear without the logo and to pay $184,500 to eight current and former MTA employees.
This case also lends support to the suggestion that the Department of Justice has taken great interest in religious liberty issues. (Though, in fairness, I should note that an astute reader has expressed to me the concern that the Department may be conflicted or divided as to the extent to which it is willing to robustly enforce statutes safeguarding religous liberty, including RLUIPA. The reader points specifically to the Solicitor General's position recommending that cert in a case involving a RLUIPA circuit split be denied or granted and summarily reversed. )
The title of this post is taken from a Sikh Coalition attorney's comment that the MTA's initial choice to Harrington was a "back-of-the-bus solution."
Sunday, May 20, 2012
On the Alleged Cultural Insensitivity of the Fojol Bros.
The Fojol Bros. is one of the most popular food trucks in Washington, DC and is partly responsible for the popularity of food trucks in the nation's capital more generally. It is also at the heart of a recent and growing controversy about race and culture. The Fojol Bros. -- a self-described "traveling culinary carnival" that offers Indian, Ethiopian, and Thai food -- has come under fire for the manner in which they sell their food. In particular, the food truck purveyors, who are all said to be white, wear turbans and fake novelty mustaches, and play Indian music in the background (see this Travel Channel spotlight of the food truck).
This led DC local Drew Franklin to issue an "Open Letter to the 'Fojol' Bro-dawgs" on Facebook, in which he charged that those behind the food truck are "brazenly insulting of others' cultures," "over-the-top racist," "worthy ambassadors of poor taste," "faux-mustachioed goons," and "well-meaning (if woefully misguided) white boys with a contemptible sense of humor." Franklin determines that the Fojol Bros. approach is "not cool," "decidedly uncool," "unacceptable," and "an embarrassment to my city." An online petition subsequently emerged, declaring that the purveyors' presentation amounts to a "stereotype and mockery," and imploring visitors to make clear that they "are not OK with their Orientalist and racist appropriation of South Asian and East African cultures." As of today, the petition has been signed by over 1,000 people -- a not insignificant number. A writer with the Washington City Paper -- which I read regularly when I lived in DC -- agrees with the critics, calling the ethnic aesthetic of the Fojol Bros. "unsettling and offensive and lazy all at once."
As a Sikh of Indian descent whose members of my immediate and extended family wear turbans and have beards, as someone whose civil rights work and entry into academia was triggered by post-9/11 discrimination against Muslims, Sikhs and South Asians, and as someone who has written about the post-9/11 experiences of Sikhs in book, journal, and essay formats, I believe I am within the zone of those who are implicated by and can speak to the Fojol Bros. tactics. My preliminary verdict: as with Johnny Carson's Carnac and ESPN's Tony Kornheiser (who both predated the "hipster" fad), I find the Fojol Bros.' schtick tacky, but not offensive or racist.
First, there is the argument, as a Columbia sociology professor told The Washington Post, that the Fojol Bros. "'harken[s] back to a colonial period when it was okay to exoticize' other cultures." Put more directly, angry asian man, a popular blog that provides sharp commentary on racial issues involving Asian-Americans, opines that the Fojol Bros. are "totally colorblind -- and I mean that in the worst way -- of the privilege that makes [them] think this is okay." It seems to me that intent is a relevant, if not important, consideration in weighing the propriety of this food truck's schtick. Whereas colonialists and some whites may have appropriated certain cultural elements in the course of subjugating other people, or based such appropriation on feelings of entitlement or superiority, I do not see any evidence that this is taking place here. Justin Vitarello, one of the food truck's owners, for example, says of turbans: "They're beautiful. They're comfortable. They're colorful." The Fojol Bros. appear to be engaged in an attempt to be whimsical and light, rather than one to belittle or marginalize.
For the same reason, the highly-charged criticism that the Fojol Bros. is participating in a "minstrel act" fails to persuade. Minstrel shows generally portrayed African-Americans in a negative light as slow, lazy, dumb, and incompetent, etc. As far as I can tell, there are no such characterizations by the Fojol Bros. -- there is no "brown-face," "[t]here's no accents" as Vitarello notes, and there are no negative behavioral or mental traits that are stereotyped or caricatured. (These qualities make the food truck distinct from Ashton Kutcher's "brown-face" depiction of "Raj," a generic Bollywood producer). It seems, rather, that the Fojol Bros. act and speak as they normally do, though they happen to wear turbans and fake mustaches, while listening to Indian music.
To be sure, in some instances the wearing of some cultural or ethnic elements may, by itself, give rise to reasonable charges of racism -- even if the wearer does not intend any harm, even if there is no accent, and even if there is no skin alteration or manipulation of facial features. That does not mean, though, that any wearing of certain items automatically supports a charge of racism. In other words, even eschewing an inquiry into the purveyors' subjective intent, it has not been clearly demonstrated that the wearing of the colorful turbans and fake mustaches is objectively racist or improper.
As far as turbans are concerned, I acknowledge that turbans, for some, are sacred pieces of attire that are effectively extensions of one's self. But turbans are not categorically sacred or significant. The religious do not have a monopoly on the use of turbans or their meaning. In fact, turbans are worn by different people (e.g., the religious and non-religious, Sikhs, Muslims, Afghans, Indians, Iranians, Persians, and North Africans) for different reasons (e.g., "to signify their class, caste, profession or religious affiliation," or "to demonstrate their wealth and power"). Indeed, I have attended a number of weddings where white men, who are usually part of the groom's party, wear turbans of the same exact sort worn by the Fojol Bros. Not once did I hear or witness an objection to these individuals' wearing of a turban as part of the wedding events. These individuals, it seems to me, wore the turbans to be festive, and the Fojol Bros. appear to be doing so as well. The only difference, then, is that the individuals at weddings effectively had "our" permission and approval, whereas the Fojol Bros. don't. That difference does not, in my view, justify the view that one is offensive and racist, while the other not. (It is true that the Fojol Bros. are engaged in a commercial enterprise rather than a wedding -- but the underlying festive motivation may be comparable if not identical. Others, such as artists Andre 3000 and Snoop Dogg, have worn turbans as part of their commercial persona, the latter of which was largely celebrated by Indians and Sikhs. The commercial nature of wearing turbans, therefore, does not transform the wearing into something "wrong.")
Thus, it is difficult to contend that the Fojol Bros. are extending colonialist attitudes or ambitions, or are taking advantage of some dominant or exceptionalist mindset that enables them to poke fun at the other with impunity. Moreover, their schtick seems to be qualitatively different than minstrel shows. Nor does the wearing of turbans, on its own, objectively signify disrespect.
Let me be so bold as to suggest that Fojol Bros. may be doing a favor to targeted communities. After 9/11, turbans became equated with terrorism, due to the fact that Osama bin Laden and his cronies wore turbans and their images were broadcast regularly on television. Some Sikh civil rights activists and I used to remark that we have been unable to offer the American public an alternative to the turban-means-terrorism reflex. Perhaps the Fojol Bros. can help diminish the turban's terrorist connotation, if not normalize the turban, such that people will see it as something other than a marker or cue for hatred, anger, and violence.
At bottom, it seems to me that the fuss over the Fojol Bros. amounts to purely subjective instincts or judgments as to what is "offensive," "wrong," or "not cool." As the Supreme Court has said, “[c]onduct that annoys some people does not annoy others.” Coates v. Cincinnati, 402 U.S. 611, 614 (1971), and relatedly “what is contemptuous to one man may be a work of art to another,” Smith v. Goguen, 415 U.S. 566, 573 (1974). Such subjective viewpoints hardly constitute a sound reason to compel the Fojol Bros. to change their ways.
A final note: while I conferred with multiple turbaned Sikhs in writing this post, I do not claim to speak for other Sikhs, Indians, or South Asians on the subject. Of course, individuals within and outside of these groups are free to weigh in on the controversy as they see fit. And whether the Fojol Bros. schtick is a wise business move is beyond the scope of this post. This is to only note that, for my purposes, I do not find the schtick offensive or racist. I honestly commend the critics for expressing themselves in word and in action by refusing to do business with this food truck. The Fojol Bros. may very well go on without the turbans and mustaches -- but I suspect it will be due to the prospect of lost profits, not the force of any critics' advanced principles.
Friday, May 18, 2012
Religion, Hair, and Prisons
This post follows Sam's excellent comments on the Department of Justice's robust enforcement of the Religious Land Use and Institutionalized Persons Act ("RLUIPA") under the Obama Administration. I share Sam's view that the charge that President Obama is "waging a war on religion" is tough to square with his administration's significant RLUIPA enforcement efforts. As religious liberty in the penal context is of particular interest to me, I wanted to add a few items to the conversation that Sam started.
Before doing so, a little background: RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution. . . even if the burden results from a rule of general applicability,” unless the burden (1) “is in furtherance of a compelling governmental interest”; and (2) “is the least restrictive means of furthering that compelling governmental interest.” RLUIPA -- passed after the Supreme Court's decision invalidating the Religious Freedom Restoration Act as it applied to States -- attempts to restore heightened protection for the religious freedom of incarcerated individuals.
The generally applicable prison rules that I'd like to focus on are inmate grooming standards, which, broadly speaking, restrict the ability of prisoners to grow their hair or maintain facial hair. Georgia, for example, requires that inmates' hair must be no longer than three inches in length; mustaches that "extend beyond the edge of the mouth" are prohibited; and beards and goatees are prohibited. Prison officials generally offer four basic justifications for these restrictive grooming policies: they prevent inmates from drastically altering their appearance and thus limit inmates' ability to evade easy identification in the event of an escape or major incident; they are necessary for security purposes in that they make it more difficult for inmates to hide contraband; they ensure good hygiene; and they promote order and discipline.
These rules may conflict, however, with the religious requirements of inmates, such as Muslims, Sikhs, Native Americans, and Rastafarians, who are forbidden from cutting their hair. The question, given this "substantial burden" on these inmates' religious exercise, is whether restrictive inmate grooming policies can survive strict scrutiny. In an article forthcoming in the University of Miami Law Review, I highlight three questions that are relevant for courts asked to resolve this question in particular cases:
First, in defending the restrictive grooming policies, can prison officials rely on generalized statements that the policies further compelling state interests in say identification or security, or, by contrast, must the prison officials put forth particularlized evidence that the specific inmates challenging the rules have given rise to the concerns (e.g., security) that would justify restrictions on their religious freedom? The Department of Justice seems to have taken the latter view, arguing in one case for example that the prison officials have “the burden of showing that security, their asserted compelling interest, is actually furthered by banning . . . specific Plaintiffs from having long hair.” I agree with the Department's take, as such case-by-case adjudication is more consistent with RLUIPA's protections than allowing prisons to avoid meaningful judicial scrutiny by merely reciting their general penological interests.
Second, what is the relevance of medical exemptions to generally-applicable grooming policies under RLUIPA? Some would say there is no relationship between the two. The Eleventh Circuit, for example, stated that, “the existence of the medical exemption does not in any way defeat [the state’s] claimed interests in support of the shaving and hair length regulations.” It seems to me that granting exemptions from grooming standards to inmates with medical issues undermines the argument that the policies must remain in effect as to those with conflicting religious requirements.
Third, what is the relevance of the fact that most States and the federal Bureau of Prisons do not have restrictive grooming policies, despite possessing the same underlying penological interests? My fantastic research assistants have discovered that thirty-nine States and the federal Bureau of Prisons do not have restrictive inmate grooming policies on the books, leaving only eleven, including Georgia, that do. The scoreboard is in flux, trending towards the thirty-nine. In one of the cases that Sam links to, Basra v. Cate, the Department of Justice challenged California's restrictive grooming policies, leading California to settle the case -- it will allow inmates to maintain beards and long hair for religious reasons. California houses approximately 144,000 prisoners; the federal Bureau of Prisons about 208,000. It seems to me that States with restrictive inmate grooming standards must explain why it is necessary for them to maintain such requirements, even though most jurisdictions are able to satisfy the same penological interests without resorting to restrictions on inmates' religious exercise.
At the end of the day, I call for a framework in which restrictive inmate grooming policies may not be imposed on inmates with religious beliefs that require followers to wear beards or have long hair, unless the prison officials offer evidence of actual or threatened risks to compelling penological interests as to the specific plaintiffs or inmates in question. The Fourth, Fifth, and Eleventh circuits, at present, have upheld restrictive grooming codes. (Justice O'Connor is sitting by designation in a pending Fourth Circuit case, Couch v. Jabe, that involves a RLUIPA challenge to Virginia's restrictive inmate grooming policies; the Department of Justice has intervened in a pending Fifth Circuit case; and my article focuses on the Eleventh Circuit.)
The Department deserves a lot of credit for dedicating itself to this area of law, which does not get a lot of press or attention, and for seeking to expand the religious rights of inmates to their statutory maximum.
Friday, May 11, 2012
App Enables Users to File Complaints of Airport Profiling
Following the terrorist attacks of September 11, 2001, Muslims and those perceived to be Muslim in the United States have been subjected to public and private acts of discrimination and hate violence. Sikhs -- members of a distinct monotheistic religion founded in 15th century India -- have suffered the "disproportionate brunt" of this post-9/11 backlash. There generally are two reasons for this. The first concerns appearance: Sikh males wear turbans and beards, and this visual similiarity to Osama bin Laden and his associates made Sikhs an accessible and superficial target for post-9/11 emotion and scrutiny. The second relates to ignorance: many Americans are unaware of Sikhism and of Sikh identity in particular.
Accordingly, after 9/11, Sikhs in the United States have been murdered, stabbed, assaulted, and harassed; they also have faced discrimination in various contexts, including airports, the physical space where post-9/11 sensitivities are likely and understandably most acute. The Sikh Coalition, an organization founded in the hours after 9/11 to advocate on behalf of Sikh-Americans, reported that 64% of Sikh-Americans felt that they had been singled-out for additional screening in airports and, at one major airport (San Francisco International), nearly 100% of turbaned Sikhs received additional screening. (A t-shirt, modeled here by Sikh actor Waris Ahluwalia and created by a Sikh-owned company, makes light of this phenomenon.)
In response to such "airport profiling," the Sikh Coalition announced the launch of a new app (Apple, Android), which "allows users to report instances of airport profiling [to the Transportation Security Administration (TSA)] in real time." The Coalition states that the app, called "FlyRights," is the "first mobile app to combat racial profiling." The TSA has indicated that grievances sent to the agency by way of the app will be treated as official complaints.News of the app's release has generated significant press coverage. For example, the New York Times, ABC, Washington Post, and CNN picked up the app's announcement. (Unfortunately, multiple outlets could not resist the predictable line, 'Profiled at the airport? There’s an app for that.') Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund, tweeted, "#FlyRights is a vanguard in civil and human rights."
It will be interesting to see whether this app will increase TSA accountability, quell profiling in the airport setting, and, more broadly, trigger other technological advances in the civil rights arena.
Wednesday, March 14, 2012
"Federal Arbitration Act, Meet Church Autonomy"
Last week, a Florida Circuit court addressed the enforceability of the arbitration agreement used by the Church of Scientology when enrolling new members. The battle over the arbitration agreement arose as part of a suit filed by two former members of the Church of Scientology, where the plaintiffs alleged that the Church of Scientology had wrongfully retained over $27,000 that should have been refunded to them.
At issue was whether the agreement was enforceable given that the selected arbitrators all had to be "Scientologists in good standing with the Mother Church." According to the plaintiffs, this amounted to requiring arbitration proceedings so unfair that the court could not compel arbitration.
So far this debate is relatively standard. The court compelled arbitration although the plaintiffs will presumably appeal - and they appear to have pretty good grounds for the appeal (this case, in many ways resembles, Hooters of America v. Phillips, 173 F.3d 933 (4th Cir. 1999), where the court invalidated an arbitration agreement because, among other issues, "the employee's arbitrator and the third arbitrator [had to] be selected from a list of arbitrators created exclusively by Hooters"). If the plaintiffs successfully demonstrate on appeal that the arbitrator elegibility rules - as required by the contract - so unduly prejudice the process in favor of the Church of Scientology, then the plaintiffs have a good shot at rendering the agreement unenforceable.
But that's where the case gets interesting. The Church of Scientology's primary defense in its court filings was not based on arbitration law; it was based on First Amendment doctrine.
According to the the Church of Scientology, the court had to abstain from intervening in the dispute because doing so would impermissibly trespass on the Church of Scientology's religious institutional rights - often termed the "church autonomy doctrine" (think here, the long line of church property cases and the Supreme Court's recent decision in Hosanna Tabor). Indeed, the Church of Scientology even incorporated this argument into the arbitration agreement itself, which states:
"I understand and acknowledge that because of constituional prohibitions which forbid governmental interference with religious services or dispute resolution procedures, that in the event I have a dispute . . . resolution of that dispute . . . may be pursued solely through the internal procedures of the Church's Ethics, Justice and Binding Religious Arbitration System."
And here's the challenge for cases where the Federal Arbitration Act meets the church autonomy doctrine. While the FAA has grounds for voiding arbitration agreements and vacating arbitration awards that include fraud, misconduct and collusion, the church autonomy doctrine does not. In fact, while the Supreme Court originally held in its 1929 decision Gonzalez v. Roman Catholic Archbishop that it would consider the decisions of “the proper church tribunals . . . as conclusive” only in the absence of “fraud, collusion, or arbitrariness,” the Supreme Court all-but rejected these exceptions in its 1976 decision Serbian E. Orthodox Diocese v. Milivojevich. The Court's refusal to use review religious institutional decisions for fraud, collusion or arbitrariness flowed from an oft-cited constitutional proposition: courts cannot adjudicate claims that turn on religious doctrine or practice. And to evaluate claims of fraud, collusion or arbitrariness would inevitably lead courts to engage in that precise type of inquiry.
All this leaves former-members of the Church of Scientology with two hoops to jump through. First, they would have to successfully claim that the arbitrator-selection process is so grossly biased that it should render the arbitration agreement unenforceable. Second, they would have to circumvent the church autonomy doctrine and, at least under current constitutional doctrine, I'm not sure they can.
So where does this leave us? One of the aims of my current project - an article titled Litigating Religion - is to bring back the old constitutional regime of Gonzalez and thereby harmonize how the First Amendment treats religious disputes with how the FAA treats religious disputes - and to do this all in the name of religious institutional autonomy. But an explanation for why will have to wait until the next post.
Tuesday, November 22, 2011
Religion Meets Commerce
I'm in the midst of preparations (along with Bob Cochran) for the upcoming Third Annual Religious Legal Theory Conference, "The Competing Claims of Law & Religion: Who Should Influence Whom," which will be hosted by Pepperdine Law School on February 23-25. We're anticipating over 70 speakers, including Prawfs Rick Garnett and Paul Horwitz.
Putting together the panels for the conference has been an extraordinary treat - although at times it feels like one of those LSAT logic games - with so many amazing speakers joining us for the conference. As should be expected, many of the submitted proposals bring new perspectives to some of the classic constitutional law & religion topics: religious accommodation, neutrality towards religion, questions of conscience etc.
But one of the interesting trends I noticed was an increasing number of papers addressing what I would term "religion meets commerce." For example, presentations at the conference are slated to include Barak Richman's paper on the impact of the Sherman Anti-Trust Act on hiring within religious organizations, Lyman Johnson's paper the role of religious norms in constructing fiduciary obligations, and Todd Williams' paper addressing sharia compliant finance. Of course, such topics frequently incorporate questions of constitutional law. But importantly, such topics also push law & religion beyond the confines of constitutional law and into the sphere of private law.
I've previously expressed (or maybe implied) here on Prawfs my enthusiasm for law & religion breaking out of its constitutional law mold and engaging more questions of private law. In my recent article Religious Arbitration and the New Multiculturalism, I try to highlight how thinking critically about contract doctrines like public policy and unconscionability will play a major role in shaping the extent of authority and autonomy experienced by religious groups. And, to the extent questions revolving around the Free Exercise and Establishment Clauses get caught in a doctrinal logjam, there seems to be any number of fruitful lines of inquiry open where law & religion intersects with private law.
For those of you able to make it, please join is this February for the conference. It should be quite an event!
Friday, November 18, 2011
Impact of Hosanna-Tabor?
A friend sent me this link about a Fair Labor Standards Act case recently filed against the National Council of Synagogue Youth (NCSY). I haven't seen the complaint, but the news blurb says the plaintiff was a youth group advisor and her responsibilities included "teaching classes, meeting with students and co-workers, cooking for holiday meals and running programs, . . . and she worked around the clock while chaperoning [weekend religious retreats] and trips."
When I saw the story, it struck me that the claims would pretty clearly run up against the "ministerial exception." On its webpage, NCSY describes itself as "the premier organization dedicated to connect, inspire and empower Jewish teens and encourage passionate Judaism through Torah and Tradition." The plaintiff appears to have been a youth advisor for events aimed at the religious "inspiration" of teens (religious teaching, coordinating religious events and holidays etc.). So it seemed to me that pre-Hosanna-Tabor precedent (see, e.g., Schleicher v. Salvation Army, 518 F.3d 472 (7th Cir. 2008); Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299 (4th Cir. 2004)) would likely counsel dismissal of the case.
And so the following question struck me. Has there been a visible uptick in complaints with claims implicating the ministerial exception with an eye towards that Supreme Court's decision in Hossana-Tabor? I might have thought parties would wait to see the Supreme Court's decision, but maybe the uncertainty itself is enough to trigger a wave of new litigation.
Tuesday, November 15, 2011
Online Symposium: Shapiro and Hathaway on Outcasting
Opinio Juris is coducting an online symposium addressing Oona Hathaway and Scott Shapiro's recent article in the Yale Law Journal titled Outcasting. Both the article and the symposium are great contributions to recent discussions on non-state governance (one of my other favorites is the Utah Law Review's 2010 symposium on non-state governance). I've contributed my own thoughts in a post to the online symposium here.
Wednesday, November 02, 2011
Stem Cells, IVF, and Abortion: Is There a Right and Left Position?
This is my third post inspired by the Mississippi Personhood Amendment, and this one turns to the normative issues.
Many people who identify as pro-life as to abortion, oppose stem cell derivation involving the destruction of pre-embryos (or “embryos” simpliciter if you prefer, language is power), and often discard of embryos as part of IVF. Many people who are pro-choice by contrast oppose prohibitions on abortion, stem cell derivation, or IVF embryo discard. What I try to show my students in the classes I teach, and I want to argue here, the three issues do not necessarily go together and the terrain is more complicated than the way it is usually presented.
First, for the left. As Judith Jarvis Thompson most famously tried to show in her (still quite controversial) work, support for an abortion right is not necessarily inconsistent with recognition of fetal personhood. That is, even if one believes fetuses are full persons, one can still support a right not to be a gestational parent (to use my terminology) for women that stems from bodily integrity or perhaps autonomy. As I have argued, as a normative and as a constitutional matter recognition of a right not to be a gestational parent does not necessarily imply recognition of a right not to be a genetic parent, which suggests that the abortion right and the right to engage in IVF discard are quite severable because prohibiting the destruction of excess IVF embryos does not require forcing unwanted gestational duties on anyone. The disconnect is even stronger when it comes to stem cell derivation, where none of the “rights not to procreate” is involved. That means that one can very happily be pro-choice as to abortion, and prohibit embryo discard or destruction via stem cell derivation.
Second, as to the right....Let us assume the pro-life position on abortion depends on the view that fetuses are persons or close enough to persons that their protection trumps the interests in avoiding gestational parenthood of pregnant mothers. That position does not imply that the destruction of embryos at all stages of development is also equally problematic. A lot depends on one’s theory of why fetuses should be given personhood or rights claims against destruction (on this issue I highly recommend Cynthia Cohen’s chapter on personhood in her book on stem cells). If your theory of personhood is about the actual possession of criteria X, on some ways to fill in “X” – such as fetal pain, which I have written about here – fetuses late in gestation may possess the criteria but not embryos as the stage they are discarded/destroyed as part of IVF or stem cell derivation. Similarly, many have defended a 14-day or later view of personhood, where personhood begins on the 14th day after fertilization where embryonic twinning – the potential for an embryo to become monozygotic twins – ends. This argument is usually premised on problems with numerical identity. If the embryo was a person before day 14, but twins into two people, which one was it – person A or person B? Many find this argument persuasive, although certainly there are objectors (for example, those who say that if a stick is broken into two that does not mean it wasn't originally one stick, though others doubt the analogy). For present purposes all I want to suggest is someone who opposes abortion can thus fairly easily consistently oppose prohibition on destruction of early embryos.
None of that means that zealots on either side are capable of being nuanced here. The cultural cognition project, if anything, suggests the opposite. Still I hope that judges and academics are better poised to see the nuances here.
Friday, October 28, 2011
The Pope reads Paul Horwitz
At the recent interfaith gathering and conference in Assisi, Pope Benedict XVI said something that made me wonder if he's been reading Paul Horwitz ("The Agnostic Age") up at his place in Castel Gandolfo:
In addition to the two phenomena of religion and anti-religion, a further basic orientation is found in the growing world of agnosticism: people to whom the gift of faith has not been given, but who are nevertheless on the lookout for truth, searching for God. Such people do not simply assert: “There is no God.” They suffer from his absence and yet are inwardly making their way towards him, inasmuch as they seek truth and goodness. They are “pilgrims of truth, pilgrims of peace.” They ask questions of both sides. They take away from militant atheists the false certainty by which these claim to know that there is no God and they invite them to leave polemics aside and to become seekers who do not give up hope in the existence of truth and in the possibility and necessity of living by it. But they also challenge the followers of religions not to consider God as their own property, as if he belonged to them, in such a way that they feel vindicated in using force against others.
These people are seeking the truth, they are seeking the true God, whose image is frequently concealed in the religions because of the ways in which they are often practised. Their inability to find God is partly the responsibility of believers with a limited or even falsified image of God. So all their struggling and questioning is in part an appeal to believers to purify their faith, so that God, the true God, becomes accessible. Therefore I have consciously invited delegates of this third group to our meeting in Assisi, which does not simply bring together representatives of religious institutions. Rather it is a case of being together on a journey towards truth, a case of taking a decisive stand for human dignity and a case of common engagement for peace against every form of destructive force.
Prawfs get results!
Friday, August 12, 2011
Earlier this year, the ABC News show, "What Would You Do?," aired a segment in which three job applicants – a Jewish man with a yarmulke, a Muslim woman with a headscarf, and a Sikh man with a turban – were denied employment at a restaurant, in front of and within earshot of customers, specifically because the applicants’ religious attire did not conform to the employer’s dress code policy. The purpose of this hidden camera show is to ascertain how unsuspecting members of the public will respond to an underlying problematic situation played out by actors. In this case, the objectionable situation designed to illicit a public reaction was the fact that the applicants were rejected solely because of their religious appearance. For example, the restaurant manager informed the Sikh applicant that he could not be hired “looking the way you look” because the turban could be considered “threatening to anyone sitting here eating.”
Some patrons took the bait -- they voiced concern that the restaurant manager’s decision was discriminatory and unlawful. One witness, for example, likened the treatment of the Sikh applicant to discrimination on the basis of race -- can the manager “say the same to me about my color or my religious beliefs, it’s the same thing.” Another troubled witness told the manager, “I’m not sure you’re aware how illegal this is…. You’re lucky there are no lawyers around."
As it turns out, the assumption that such conduct is inconsistent with the law is a mistake. For years, federal courts have enabled employers to engage in the behavior depicted in this broadcast.Where, as with the above scenario, there is a conflict between an employee’s religiously-mandated appearance and an employer’s interest in avoiding possible negative customer reactions to the religious employee’s identity, federal courts are allowing employers to resolve this conflict by placing the religious employee out of public view or by refusing to hire him or her altogether. In legal terms, courts faced with Title VII claims are reasoning that placing an employee with religious attire in the back is an acceptable “reasonable accommodation” of the employee’s religion or that to hire such an employee may result in economic costs that amount to an “undue burden.”
My recent research argues that these courts have it wrong. It seems to me that the text of Title VII forbids such employer action and that this conduct reinforces majoritarian norms and perpetuates harmful stereotypes as to who the public wants to interact with. Reserving social spaces for the familiar or likeable religions is problematic. Moreover, other contexts, particularly principles from the civil rights movement, also point to the discriminatory nature of this employer conduct.
While this position may not be controversial, what may serve as a lightning rod is how the aforementioned employer conduct is being described. In particular, if an employer places in the back an employee who looks different on account of his religious attire, or refuses to hire such an individual, can this be fairly termed "segregation"? In other words, it seems, the employer is segregating an employer in the workplace (by placing him or her away from the public) and from the workplace (by refusing to hire him or her). Title VII expressly prohibits "segregation" and language in the latest Workplace Freedom Restoration Act refers to this conduct as "segregation." The term is charged, but the question is whether its use is accurate or prudent in this context.
Wednesday, July 27, 2011
Amicus Support Requested: Hosanna-Tabor
Leslie C.Griffin and Caroline Mala Corbin have drafted an amicus brief in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination. They are asking interested law professors, particularly First Amendment Law professors and Employment Law professors, to join them in supporting the brief. Here's their description of the case and the issues, which I am happy to pass along:
Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired. Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.
Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister. If she is not a minister, she will probably win. After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.
The ministerial exception grants religious organizations immunity from employment discrimination suits brought by "ministerial" employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination. The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it
The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.
We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply. Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.
As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes. In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.
If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us at the following e-mail addresses:
Leslie C. Griffin & Caroline Mala Corbin
Monday, July 25, 2011
Will Ireland compel Catholic priests to reveal what they hear in Confession?
The Catholic Herald is reporting that the Irish government is seeking to compel Catholic priests to break the seal of confession. The debate will sound familiar to all American lawyers familiar with our Free Exercise and religious-exemptions cases and arguments:
. . . Irish Children’s Minister Frances Fitzgerald said: “The point is, if there is a law in the land, it has to be followed by everybody. There are no exceptions, there are no exemptions.”
Fr PJ Madden, spokesman for the Association of Catholic Priests, insisted that the sacramental seal of confession is “above and beyond all else” and should not be broken even if a penitent confesses to a crime. . . .
I doubt that Minister Fitzgerald believes, as a general matter, that "if there is a law in the land, it has to be followed by everybody", or would want to live in a community where this was true. In any event, this might be a good occasion to take advantage (?) of the oppressive heat and watch the old Montgomery Clift film, I Confess.
Wednesday, July 13, 2011
Victory for Pastafarians Everywhere!
I'm not one of the law and religion folks, so I'll refrain from legal commentary. But, I couldn't resist using the Prawfs platform to pass this gem along: Austrian Man Wins Right To Wear Pasta Strainer in License Photo.
As NPR reports:
In Austria one of the strangest fights for religious freedom has come to an end: Niko Alm, a self-described "Pastafarian," fought for three years for the right to wear a pasta strainer on his head in his driver's license photo.
His argument? Alm claimed he belonged to the Church of the Flying Spaghetti Monster and wearing the strainer was part of his religion.
Wednesday, April 20, 2011
"God's Partisans": secularization, stability, and religious freedom
Here is a short piece, in The Chronicle, by my friend and colleague Dan Philpott (Pol. Sci., Notre Dame) and others, about the failure of the "secularization" thesis to explain what's happening in the world around us.
But if American foreign-policy makers want to promote democracy and stability, they must come to realize that secularism is a poor analytical tool. The great surprise of the past generation has been the resurgence of religion's influence. Despite a powerful array of secularizing regimes, ideologies, and social trends, religion has not only outlasted its most ferocious 20th-century rivals, but in many cases, it also appears poised to supplant them.
Among other things, the piece suggests that religious freedom is a "critical [factor] when assessing whether religion is more likely, on balance, to yield peace or terrorism, democracy or authoritarianism, reconciliation or civil war."
The piece is based on the authors' excellent new book, God's Century. Well worth a read, I think.
Monday, April 04, 2011
Some Thoughts in Defense of the Ministerial Exception
The short of it is that the federal courts of appeals have all recognized a “ministerial exception,” which exempts religious organizations from the anti-discrimination laws when it comes to their “ministers” (however defined). The Supreme Court has never had a ministerial exception case. Until last week that is, when it granted certiorari in EEOC v. Hosanna-Tabor. The case involves the question of whether the ministerial exception really exists and, if so, what it covers.
People understand the ministerial exception pretty well when it’s about following religious doctrine. Even if they disagree, people get the reasons why we would want to exempt the Catholic Church’s priesthood from the sex-discrimination laws. But people have a harder time understanding why we would have a ministerial exception going beyond religious doctrine—they don’t see, for example, why we would ever exempt the United Methodist Church (which officially ordains women) from sex discrimination claims by their ministers.
It’s a good question.I’ve been working recently on a paper about the ministerial exception. And I’ve been trying to explain this particular point recently in conversation both to some friends and my parents (who have mostly rejected what I’m about to say). So it might be garbage. I’ll leave that to you. But below are three reasons why courts might want to adopt this sort of broad ministerial exception. So if the Supreme Court ends up going this way, here are three reasons not to freak out.
1. The Remedial Problem. Reinstatement is the preferred remedy under our anti-discrimination laws. In the context of ministers, this means forcing a minister on a church, against its will and over its objections. Choosing a leader is obviously an essential component of religious life: We call them “Christians” because they follow Christ; we call them “Buddhists” because they follow Buddha. Forcing religious leaders on people is thus a classic free exercise problem. But it’s also a classic establishment problem; one key part of the established church was that the state chose the ministers (consider, for example, why Henry VIII came to create the Anglican Church). Some have suggested just giving damages rather than reinstatement. But this still functions as government control over the church’s clergy, just in a different way: Appoint this minister or pay a fine. (And surely a tax on religious exercise should be treated like an outright prohibition.) The essence of the Establishment Clause was that people should not have to pay for a minister that is not their minister. But that is what the damage remedy here essentially does.
There’s also a macroscopic remedial problem here. The Protestant and Jewish denominations who officially ordain women have massive gender imbalances. There’s real potential here for large-scale, industrial-strength class actions. Eliminate the ministerial exception (or reduce it to being about religious doctrine), and we’ll have federal courts restructuring the core of many religious denominations: changing seminary and rabbinical school admission, the ordination process, and the call procedure (i.e., the way congregations select individual ministers). There’s also a delicate point here about affirmative action. Some churches have affirmative action programs for women. I have no idea if they comply with the United Steelworkers v. Weber framework; some at least don’t seem to do so.
2. The Inquiry Problem. When a minister claims to have been fired because of some illicit reason, a church will usually respond by saying what defendants typically say in employment cases—there was something wrong with the minister’s job performance. In the context of religious employment, though, that translates into the church saying she was a bad minister—maybe she was bad in the pulpit, maybe people did not like her bible studies, maybe she was not good at counseling parishioners, whatever. McDonnell Douglas works by having the jury scrutinize the validity of those claims. The jury essentially asks itself—well, was she a bad minister or not? But that can be a difficult question for juries to answer; it requires the jury to pass on quintessentially religious questions.
3. The Control Problem. Part of the ministerial exception is simply the idea that churches should have some sort of basic right to run their own affairs. Many free exercise cases have been cases of conscience objection. The government demands you do one thing; your religion demands that you do another. But religion isn’t just about the ability to obey commands. Probably no one thinks that God requires them to sing in the church choir or attend church on Sunday rather than Wednesday. But surely it would burden religious exercise if the government started forbidding church choirs or Sunday worship. Free exercise isn’t just a right of conscientious objection; it’s a right to practice one’s religion free of intrusive governmental regulation.
If you start from this perspective, you will see a lot of reasons why churches might legitimately object to employment discrimination laws, even when they agree with the principles standing behind those laws. Churches might want to avoid government regulation on principle; they might fear that some regulation now will mean more regulation later. They might agree with the law but fear the enforcement apparatus (depositions, civil trials, etc.) or fear that secular bodies will not enforce the laws fairly—an important Ninth Circuit case involved a female minister suing in federal court for sexual harassment after a church court consisting of 3 women and 2 men dismissed her claims as unsubstantiated.
So these are some basic reasons underlying a strong sort of ministerial exception. Frankly, I’m still figuring out what I think, but those are some arguments I would make in support of it. There’s a wide gap out there between the two sides; I’m hoping to lessen some of that with this post.
Friday, December 10, 2010
Sixth Annual "Conference on Christian Legal Thought" (at AALS)
Details after the jump. The gathering includes our own Paul Horwitz.
The Sixth Annual Conference on Christian Legal Thought
Books on Christianity and the Law
Saturday, January 8, 2011
Friday, November 26, 2010
As part of my recent thinking about the "new multiculturalism," I've been giving some thought to a category of contracts I'd call "religious" contracts (here's an abstract for the project). What I mean by this category is contracts where parties enter some sort of financial arrangement, which also entails or incorporates some religious term or practice into the agreement.
I think most people, when considering this category, typically raise examples related to divorce proceedings (e.g. the Jewish practice of executing a divorce through a get) and some of the challenges courts have faced when addressing agreements to execute a religious divorce. But I've been wondering more about commercial agreements, which are also interwoven with religious practices. Some prominent examples include the enforcement of mahr agreements (entered into within the context of Islamic marriages) and heter iska agreements (entered into to avoid Jewish law's anti-usury laws). I'm curious if there are any other prominent examples of religious contracts that come to mind?
I've been collecting examples to see how courts interpret such agreements as instances of the challenges courts faced when trying to regulate and enforce religious commercial conduct. My own sense, which I sketch after the jump, is that courts have frequently adopted one of two adjudicatory tactics when faced with such conduct.
In some instances, courts – fearful of the Establishment Clause – reflexively refuse to adjudicate cases implicating the enforceability of religious commercial conduct. In so doing, courts often exhibit a hyper-sensitivity to entanglement concerns, without truly considering whether or not the religious overtones of the case actually require dismissal on Establishment Clause grounds. Such a risk-averse approach to constitutionality can leave aggrieved parties without a venue to seek redress of legal wrongs.
Alternatively, some courts embrace adjudication of disputes implicating religious commercial conduct by pushing the religious undercurrents of the case to the margins and focusing instead on the familiar secular features of the case. By so doing, courts can enforce religious agreements and resolve religious disputes under the umbrella of the neutral-principles doctrine, finding increased constitutional comfort in adjudicating cases impacting religious conduct when they can take religion out of the equation.
As courts face more and more cases of religious commercial conduct, my own view is that they'll have to start developing more of a middle-of-the-road approach. Without appreciating the religious beliefs and practices intertwined with religious commercial conduct, courts will be hard pressed to determine whether or not entanglement concerns truly preclude a court from adjudicating a particular claim. Moreover, to enforce an agreement by focusing only on the secular features of a case likely can distort the very terms of the agreement. Instead, I think courts would be better served in educating themselves as to the implicated religious issues - allowing the parties to present evidence to explain the religious aspects of the agreement - in order to accurately determine what a particular contract entails and where commercial conduct ends and religious conduct begins.
Sunday, November 07, 2010
CAIR Challenges Constitutionality of Sharia Ban
For those following the story of Oklahoma's vote last week to ban state courts from "considering" sharia law, these developments are not particularly surprising. CAIR (Council on American-Islamic Relations) announced the filing of a lawsuit seeking a temporary restraining order and a preliminary injunction against implementation of the sharia law ban passed in Oklahoma (see previous post for more info). Here's the brief (and a local article).
It's hard for me to imagine that the state constitutional amendment does not violate both the Establishment and Free Exercise Clauses. First, it would appear to violate the Establishment Clause's own anti-discrimination principle (requiring neutrality between religion and religion, and between religion and nonreligion). Plus the amendment doesn't appear to be facially neutral and generally applicable - and I don't quite see an argument supporting the claim that the amendment is narrowly tailored (let's leave aside the compelling government interest part of the analysis).
But what about the imminent and irreparable harm prong of the TRO/PI analysis? I suspect both sides may take some ironic positions on the topic.
Critics of the amendment have emphasized in recent weeks that there simply haven't been any cases of sharia law in Oklahoma courts. While the current lawsuit seeks a TRO/PI largely on the grounds of immediate stigmatic harms, I wonder how much of a difficulty this might pose in claiming imminent/irreperable harm.
On the flipside, advocates of the amendment have, in the weeks leading up to the referendum, argued that there's an immediate need for the amendment - presumably to thwart an impending threat. If there's a claim of immediate need, it would sure seem like there's an implicit claim of immediate opportunities for application. Any thoughts?
Monday, July 26, 2010
Kagan, the Court, and Religious Liberty
Here is an op-ed of mine, which appeared in today's edition of USA Today, about the Court's recent (and upcoming) religious-liberty decisions, and about the way that a Justice Kagan should approach such cases. A bit:
. . . What does Kagan's embrace of both judicial responsibility and restraint tell us about how she would have approached, or will approach, such cases? We know that she will, in general, be a reliably "liberal" or "progressive" voice on the court, but will she follow in Justice Stevens' footsteps when it comes to religious liberty?
As she told the Judiciary Committee, the First Amendment ensures that religion "never functions as a way to put people, because of their religious belief or because of their religious practice, at some disadvantage with respect to any of the rights of American citizenship." "You are a part of this country," she insisted, "no matter what your religion is." She was right. Our Constitution protects religious liberty and welcomes religion in public life, but the criteria for membership in our political community are secular. Clearly, courts have a role to play in policing these criteria and making sure that "rights of American citizenship" are never made to depend on religious professions or practices.
But what is that role, and how should it be exercised? The ability of unelected judges to identify those government actions that actually "establish" religion is limited, and so is their authority to second-guess others' policy decisions. It is not just the responsibility of judges, but also of legislators, public officials and voters, to be good stewards of our "blessings of liberty" and to guard against political exclusions on religious grounds. . ..
I'd welcome your thoughts.
Monday, July 05, 2010
History of U.S. Executive Policy Since WWII
My first post focused on the most recent Nazi-looted art appeal in the United States, which was filed in the United States Court of Appeals for the Second Circuit. To put this appeal into context, an analysis of federal court cases adjudicating Nazi-looted art claims since 2004 demonstrates a de facto presumption against the legitimacy of these claims. I will lay out a summary of the other cases in question in my next (third) post.
This post will focus on the history of U.S. executive policy. Dismissing such claims without reference to the complex historical factors delaying assertion of owners’ claims violates foreign policy goals pursued by the United States and the Allies during and immediately after World War II, and in recent diplomatic breakthroughs in 1998, 2000, and 2009. This executive policy is the subject of this post. Historical context dating back to 1933 will be provided in my fourth post.
In the normal course of judicial administration touching on foreign policy, federal judges typically defer to determinations of policy matters by the executive branch. For example, in 1949 this Court ruled inadmissible the statements of a Jewish victim of Nazi persecution describing his brutal imprisonment by the Nazis that led him to “transfer” major assets under duress, on the ground that to do so would denigrate a foreign country. Bernstein v. N. V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 173 F.2d 71 (2d Cir. 1949). In 1952, however, as will be familiar to any international law professor, Jack B. Tate, Acting Legal Advisor in the Department of State, clarified:
[The U.S.] Government’s opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls . . . [and] the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.
26 Dept. St. Bull. 984-85 (1952) (the “Tate letter”). Once the Second Court was fully informed of the government’s views of coerced “transactions” during the Nazi era in Germany, it promptly reversed its previous ruling in the same case. Bernstein v. N.V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375, 376 (2d Cir. 1954).
U.S. diplomats led efforts to warn other countries against looting in the landmark London Declaration of January 5, 1943, 8 Dept. St. Bull. 21 (1952), which “declare[d] invalid any [coerced] transfers of, or dealings with, property . . . whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.” Immediately after the war, the Nuremberg Tribunal evaluated detailed evidence of coerced sales, and the plunder of art was declared a war crime and is so recognized today. At Nuremberg, it was perfectly clear to the fact finders who had done what and to whom. For example, Alfred Rosenberg, head of infamous Einsatzstab Reichsleiter Rosenberg (“ERR”) art looting unit, was convicted and sentenced to death by hanging.
Shortly thereafter in Bonn and Vienna it was equally clear that, in order to rejoin the human family, Germany and Austria had to repudiate all spurious “transactions” of the entire Nazi era, including art “deals” that were really seizures. E.g., Restitution of Identifiable Property; Law No. 59, 12 Fed. Reg. 7983 (Nov. 29, 1947) (Military Government Law 59). Thus, the model chosen was a restitution model for individual claims, and these claims were not subsumed in reparations paid after the war, which were limited as we made room for the Marshall Plan.
Current foreign policy requires deference like this Court gave to the Tate letter. Diplomats from the State Department, particularly Ambassador Stuart Eizenstat, played a leading role in securing public commitment by the forty-four nations that adopted the Washington Conference Principles on Nazi-Confiscated Art and the Terezín Declaration, which emerged from the international conference hosted by the Czech Republic in June 2009. These declarations call for effective, fact-based resolution of Nazi-looted art claims. Principle eleven of the Washington Principles encourages nations “to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.” The Terezín Declaration states in its principles under the heading “Nazi-Confiscated and Looted Art”:
3. . . . [W]e urge all stakeholders to ensure that their legal systems or alternative processes . . . facilitate just and fair solutions with regard to Nazi-confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law. (Emphasis added)
To give credit when due, this development in foreign policy was sparked in no small measure by Guidelines issued by the Association of American Museum Directors (“AAMD”) in June 1998. Thus, it is quite shocking that U.S. museums are asserting statute of limitations and laches defenses, often as plaintiffs, and distorting the historical record and law in the process.
My next post will lay out the progression of cases since the 2004 Altmann victory in the United States Supreme Court and subsequent restitution of the Gustav Klimt Adele Bloch-Buaer II, a portrait of a relative of the claimant formerly known as Austria’s Mona Lisa. This progression shows that federal courts do not seem to be giving Nazi-looted art cases the fair assessment they deserve.
Friday, March 12, 2010
"The End of Endorsement"?
Steve Smith asks, over at the new Law, Religion, Ethics blog, whether we are seeing, in the Ninth Circuit's decisions rejecting First Amendment challenges to the Pledge and to the National Motto, the "end" of the Court's "endorsement test." (I note, by the way, that among the virtues of Law, Religion, Ethics is that it has resulted in more things to read by Prof. Smith.) He writes:
I wonder whether this decision is a manifestation of the end of the “no endorsement” doctrine– a doctrine that originated in the mid-80s and that, while attractive on one level, is just so manifestly incongruent with so much in the American political tradition (including much that is revered, such as Jefferson’s Virginia Bill for Religious Freedom, the Declaration of Independence, Lincoln’s magnificent Second Inaugural Address, and expressions of probably every President from Washington to Obama) that it just couldn’t be consistently adhered to. Pretending to adhere to it often has led merely to rationalizations that are palpably implausible (such as Justice O’Connor’s explanation at an earlier point in this case of how “under God” really doesn’t send a message endorsing religion). Maybe it’s time for courts to acknowledge that the “no endorsement” experiment, though well intentioned, just hasn’t worked out, and it should be abandoned. We can hope– I can, anyway– that yesterday’s decision is a step in that direction.
My own view, for what it's worth, is that the reason why it is (or, at least, should be) constitutionally permissible to include the words "under God" in the Pledge is not because the Pledge (with these words included) does not involve any "religious" affirmations or claims, and is not because the government may be deemed to stand at a sufficiently ironic or neutral distance from such affirmations or claims, but is because whatever religious affirmations or claims the Pledge (with these words included) involves are ones that our Constitution permits the government -- that is, the political community -- to "endorse."
Saturday, March 06, 2010
"Laica" in Mexico
A worth-reading piece by the Becket Fund's Luke Goodrich in the Wall Street Journal:
. . . Last week, Mexico's lower house of Congress began the process of amending the Mexican Constitution to formally declare the country to be "laica"—meaning "lay" or "secular." Supporters say the amendment merely codifies Mexico's commitment to the separation of church and state. But the term "laica," like the term "separation of church and state," means different things to different people. In fact, Mexico has been fighting over the meaning of church–state separation for over a century, with pro-church factions seeking greater political control for the Catholic Church, anti-clerical factions seeking to suppress the church, and few factions willing to agree on government neutrality towards religion. The key question is: What version of the separation of church and state will this amendment embody?
Unfortunately, the context surrounding the amendment suggests that it might be a step backwards for religious liberty and true separation of church and state. . . .
"Mexico should take care when defining its version of separation of church and state. Separation is good when it means the government is neutral toward religion—neither giving legal privileges to any one religion, nor interfering with the outward expression of religious belief. Separation is a problem when it means the government is hostile to religion—treating it like the "tobacco of the masses" and attempting to eradicate it from the public square. Let's hope that "laica" means the former, not the latter.
Tuesday, January 05, 2010
Laycock on faith-based hiring by publicly funded religious organizations
My friend Tom Berg posted this over at the Mirror of Justice blog:
An important question for both religious-freedom law and civil society is whether religious organizations can receive funding to provide social services without having to compromise their religious character in doing so. The Bush Justice Department issued an opinion concluding that organizations receiving government funding could invoke the Religious Freedom Restoration Act (RFRA) to challenge funding conditions that conflicted with their religious tenets or identity. Now the Obama DOJ has proposed reversing that interpretation. In this memorandum letter, religious-liberty expert Doug Laycock, in his typical incisive way, explains why RFRA should be held to protect the organization.
As (I think) I have said before, I think it is a mistake to conclude that, because the government may not, and should not, take religion into account when staffing its social-welfare programs, religious organizations that receive public funds to assist in their own ("secular") social-welfare work should lose their right to take religion into account when staffing their own programs. It is both a violation of the no-establishment rule (I assume) and inconsistent with the kind of equal-treatment rules we should want to constrain the government for government agencies to take religion into account when hiring and firing; but taking religion into account in this way is not something that is in-and-of-itself bad -- it depends -- and it is not bad (it seems to me) or worrisome when religious organizations do it. Put more simply, the "public funds should not be used to pay for discrimination" claim seems to not quite hit the mark in the context. In any event, see what Doug has to say . . .