Tuesday, December 30, 2008

So help me (fill in the blank)

Michael Newdow has filed a law suit challenging that part of the oath of office to be administered at the presidential inauguration that contains the words "so help me God."

Of course, he will lose. Even if he is found to have standing, this falls into the category of cases that I can be properly dismissed with nothing more than a shrug, grimace and "Dude."

But if one gets past its inveterate silliness, it's hard to deny that the case has doctrinal legs. Either under the Lemon test of Justice O'Connor's endorsement test, it is hardly frivolous to suggest that government communication that acknowledges the existence of a God and the fact that this God can help us might advance religion or endorse it in a way that makes nonadherents feel like disfavored members of the community. While a court might (actually would) dismiss such an argument by invoking the troubling notion of ceremonial deism, there is no reason why this must be so. 

My own view, expressed here and further developed as it pertains to government speech in a forthcoming piece, is that the injury that Newdow seeks to prevent, while certainly real (if not as substantial as is often claimed), cannot be prevented in any type of evenhanded manner. Government inevitably will send messages disfavoring certain religious presuppositions and the common distinction - that these are not theological messages - does not comport with the actual way in which dissenters experience these messages or what theologians and sociologists tell us about religious formation.

While I think that there are non coercive messages that can raise establishment clause concerns, a mere invocation suggesting that the government endorses the existence of a monotheistic God who is somehow active in human affairs is safely on the right side of the line. 

Posted by Richard Esenberg on December 30, 2008 at 11:08 AM in Religion | Permalink | Comments (3) | TrackBack

Fictionalizing the Shoah, or Why tenure remains important

I came late to the story of Herman and Roma Rosenblat, two survivors of the Shoah (he at Schlieben, a sub-camp of Buchenwald, she pretending to be Christian and living on a nearby farm). The tale they told for a decade until last weekend is that during seven months in the winter of 1945, Roma (then nine) met Herman (then a teen) at the camp fence and tossed food to him over the barbed-wire fence. They then met on a blind date in Coney Island in 1957, told their stories of the War and realized who the other was; they fell in love and married and remain together, retired near Miami. This love story landed them two appearances on Oprah and a book contract with Berkley Books (a division of Penguin Group); their story was the subject of a children's book published last fall and of a movie, titled Flower of the Fence, scheduled to go into production in March.

But Ken Waltzer, a Holocaust expert and the director of the Jewish Studies program at Michigan State, looked into the story and began calling it into question. So did Deborah Lipstadt of Emory University, an appointee the United States Holocaust Memorial Council. The New Republic did an extensive investigation, including talking to other Schlieben survivors, some of them members of Rosenblat's family, who denied the story. Last Saturday, Berkley canceled the book after Rosenblat admitted to Harris Salomon (the film producer), his agent, and the press that the story was false. Roma was, in fact, in hiding in a different part of Poland, 200 miles away; Herman did not go to the fence to get food every day for months on end. TNR coverage here, here, here, and here. Comments from Waltzer here and here and from Lipstadt here and here.

I want to touch on two points in this story--one on the merits of the memoir controversy and one closer to the academic focus of this blog.


On the merits, I agree with the argument that falsified stories about the Shoah are troubling. But not because I think that enough small falsifications leave room to deny the entire thing. Rather, my problem is that this event was so horrific and that horror is lost amid false stories that humanize the events and, in the course of humanizing, make them seem more benign. The detail that caused scholars to question the story was that the only space along the fence at Schlieben where such an encounter could have occurred was right by the SS barracks; no prisoner and no Jew in hiding would or could deliberately walk that close to an electrified, barbed-wire fence, much less to the barracks and to the SS on a daily basis. A story, purporting to be true, that suggests otherwise makes the SS, and everyone's situation, appear less dangerous.

Waltzer sharply criticized the "culture makers"--Oprah, Berkley Books, producer Salomon--for failing to investigate or even question the veracity of a story that was on the "far end of implausibility" to begin with. He argues that the willingness to accept the story "shows something about the broad unwillingness in our culture to confront the difficult knowledge of the Holocaust." His suggestion is that the culture makers fail when they try to sugarcoat the Shoah for Middle America, resulting in miseducation rather than education. The flip side, as expressed to TNR by film-producer Salomon, is that the "candy-coated message" gives the story resonance with middle America and "can do more to teach people about the Jewish experience during the Holocaust in a way nothing before has done."

Count me on Waltzer's side of the fence (so to speak) on this one. I do not believe that we can teach about the Jewish experience during the Holocaust (or any experience, frankly) by presenting a story so sanitized that it presents a false (not just fictitious, but false) image of reality. Quite the opposite--we disserve the Jewish experience by giving it an impossibly pleasant veneer. Interestingly, Salomon for now plans to go forward with the movie, which he says was to have been a fictionalized "based on" story, rather than a true-to-life translation of the memoir. Salomon apparently sees this story, fictional though it may be, as much like the recent film The Boy in the Striped Pajamas in depicting a friendship between people on opposite sides of the camp fence. But, as the TNR story pointed out, that at least acknowledged that it was a work of pure fiction. (See here for a taxonomy of Hollywood Holocaust plots).

Now on to the academic point: This story suggests something about the continuing need for tenure. It is quite common to question that institution, given the negative incentives it provides. Or it is used to protect scoundrels, those who use it to write and say outrageous and offensive things (something that I am all for as a general matter, but not all people and not all universities are). But sometimes tenure still is necessary to protect scholars who are doing the right thing.*

As Waltzer's skeptical investigation, and the reportage by TNR, intensified, there was pushback from "culture makers" with a vested interest in this project going forward, most notably from producer Salomon. One move was to contact the dean at Michigan State to question and complain about Weltzer's research. Salomon also called it "bloody repugnant" that Weltzer spoke with TNR. Salomon also went after Lipstadt via e-mail, suggesting that she was slandering Rosenblat by questioning the story, that he (Salomon) knew more about the Shoah than she did, and that her questioning of the story is a "sin to the memory of all those who perished so long ago."

Of course, in neither situation did anything happen beyond sharp criticism of the scholars--which is, of course, completely fair game. And in neither situation did the University decline to support the professor fully and there is no reason to think they would not have done so had it come to that. But a university granting tenure is Ulysses tying himself to the mast--a precommitment that it saves it from even the possibility of its lesser tendencies. Perhaps the University never even will be tempted and perhaps scholars never will "need" to rely on tenure (I frankly never expect to have to). But it continues to serve a purpose, even if it only is wielded in the rarest and most exceptional circumstances. If I am Ken Waltzer, I feel better and safer entering into this fray knowing that I have tenure behind me.


* Yes, I recognize the subjectivity of those last two sentences.

Posted by Howard Wasserman on December 30, 2008 at 09:26 AM in Culture, Current Affairs, Religion, Teaching Law | Permalink | Comments (9) | TrackBack

Monday, December 29, 2008

Carol categories

It's a little late for this post, which also has nothing to do with law or prawfdom, but during this holiday season I've been thinking about how there are different kinds of "Christmas" songs, or how such songs are about "Christmas" in different ways. (I will henceforth use "Xmas" for "Christmas," since it's easier to type. As an aside, why does the "X=Christ" translation only occur here? I'd like to see more references to "Western Xianity," or "Xopher Columbus," or "Jesus X.") I think these songs break down into four meaningfully distinct groups.

Category 1: Winter Songs. Some songs are associated with Xmas and seem to be heard only during "the holidays," but are really about the season of winter, and would be just as appropriate in mid-February as they are in mid-December. These songs include "Jingle Bells," "Jingle Bell Rock," and "Sleigh Ride," all of which are about riding in a sleigh; "Winter Wonderland"; "Frosty the Snowman"; and "Let it Snow, Let it Snow, Let it Snow." None of these have any more relation to Xmas than does, say, "Baby, It's Cold Outside." It's perfectly OK to continue singing or whistling any of these songs for the next two months without feeling odd about it. Really. Go right ahead.

Category 2: "Holiday" Songs. These songs recognize the existence of Xmas, but have no religious content at all. Xmas in these songs has the following features: it's a holiday; it's at the end of the year; and spending it with loved ones is important or desirable. In many cases, "Xmas" could be replaced with Thanksgiving, or a late-year birthday, or Festivus with no real damage to the spirit of the song (though in some cases the song includes certain Xmas-related details, like references to a tree or gifts instead of a pole or the airing of grievances).

These songs don't take any direct positions on matters of faith. They merely note the existence of Xmas (or the "holiday season") and, often, associate it with a positive sentiment we might call "good cheer." Obviously the "holiday season" revolves around a specific holiday which is in fact a religious holiday, but these songs themselves have no religious content. These, then, are the sort of Xmas songs that can most easily be sung by Barbra Streisand, or written by Irving Berlin. Even non-Xians can endorse a day off to spend with your family (though, of course, they might prefer if the day off were not given because of its importance to Xians in particular).

Perhaps the archetypal song in this category is "Home for the Holidays," which doesn't even mention Xmas. But there are lots of others too: "The Most Wonderful Time of the Year"; "Deck the Halls"; "Silver Bells"; "White Xmas" (and, for that matter, "Blue Xmas"); "I'll Be Home for Xmas"; "Have Yourself a Merry Little Xmas," which I find quite moving when sung with the original lyrics, written during WWII (they seem to be making a comeback during the current wartime period). Many of these are among my favorite holiday songs, except "Most Wonderful Time," which is clearly overselling, in my opinion.

Some of the great modern pop songs about Xmas fit into this category too: "Xmas Wrapping" by the Waitresses; "Happy Xmas / War is Over" by John Lennon; "Fairytale of New York" by the Pogues, which is frequently voted the most popular Xmas song in the UK, notwithstanding any controversy about its lyrics.

Category 3: Santa. Too many songs to name, and they're mostly easy to spot, though some are borderline (e.g., I'd put "The Xmas Song" in this category, though its spirit might be more in Category 2). Santa songs are more Xmas-specific than the Category 2 songs, though they're about an independent Xmas mythology of flying reindeer, diligent elves, etc., rather than about the birth of the (alleged) messiah (whose central message, it must be noted, flies in the face of any strict "naughty or nice" accounting scheme). Still, the Santa mythology is quite evidently Xmas-specific and therefore can easily be seen as emitting a pro-Xian, anti-non-Xian vibe -- more so than the Category 2 songs, in my view, though I'd be curious to know what others think. Santa songs might also irritate due to their seeming (or, sometimes, outright) embrace of Xmas-related consumerism, which Xians as well as non-Xians might oppose.

I guess "Father Xmas" by the Kinks, which imagines a department-store Santa getting mugged, would also fall in this category, though it's not exactly pro-consumerism.

Category 4: Baby Jesus. These songs are For Believers Only. Their lyrics contain one or more of the following: a manger; shepherds; three "wise men" and/or "kings" following a star; angels; a baby boy who would grow up to be Our Lord and Savior.

I tend to think Category 4 songs belong in church, or else in the home. Even the ones I like make me feel uncomfortable when they're sung, say, on a usually non-religious TV show. I also tend to think, maybe even more strongly, that only Category 4 songs belong in church. As a child attending Xmas Mass, I always found it inappropriate if Santa showed up at any point, which he sometimes did.

I don't know why I've been thinking about this, except that it's something to do other than grade exams.

Posted by Michael Cahill on December 29, 2008 at 07:15 PM in Culture, Music, Religion | Permalink | Comments (2) | TrackBack

Sunday, December 21, 2008

Is choice free only in a cocoon?

There is much I agree with in Rick Garnett's post about Dahlia Lithwick's concern over what she sees as a selective concern over the rights and autonomy of health care providers, sometimes overweening (the new Bush regulations on conscience protection) and at other times oppressive (mandates to provide certain information to patients seeking abortion), that is, in her view, consistent only in its resistance to the accommodation of the choice to abort.

Let me be deliberately provocative.

So what?


Honesty compels me to admit that, since I first wrote a consideration of the constitutional right to choose an abortion as part of the Harvard Law Review's Developments issue on the constitutionalization of rights loosely affiliated with the family and taught the case on innumerable occasions, I have never found any of the various defenses of Roe v. Wade very convincing. But that's not pertinent here. It is the law and there is a rather broad constitutional right to choose to have an abortion in the United States.

But that does not, it seems to me, imply that the government need adopt policies that will encourage that the right to choose be exercised in any particular way. It is one thing to recognize an individual right to choose to have an abortion and quite another to require that another individual provide one. It is one thing to recognize a right to choose and quite another thing to say that the government may not mandate the provision of certain information that it believes to be pertinent to the exercise of that choice. We have the right to believe and say and even do all manners of things that government nevertheless tries to discourage.

One does not have a right, I think, to be free from challenge to the moral presuppositions underlying abortion rights or to be told that, at least for some people, choosing to abort has adverse consequences. While we can argue about these messages, it is not obvious to me that they are any less tendentious and disputed than messages delivered by the government in a variety of other contexts.

Of course, this does not mean that Lithwick has to support the particular policies that she complains of. She may believe that the state has no business reminding those seeking an abortion of any particular view of the moral stakes of abortion (other than, by silence, to imply that there are none - or at least none with which the larger community need be concerned) or that the view that a decision to abort may have unfavorable consequences is just wrong.

Lithwick sees an inconsistency. She argues that "[t]he freedom and autonomy of doctors who oppose abortion are protected by law" but that "those willing to provide abortions can be forced to deliver a state message with which they completely disagree."

But aren't two different types of rights at stake? The first is the right of a professional to refuse to provide a service that she regards as morally wrong - to refuse, as someone once said of capital punishment, to to be "in on a killing." The second is the right of a professional to be free of regulations that require disclosures which she believes need not be made. The former seems to be a claim to be free from an extraordinary imposition on conscience. The latter is certainly significant but about as unique and extraordinary as package inserts and informed consent laws.

Of course, the questions get more complicated as the conscientious objection is to matters that most of us assume are morally unobjectionable (e.g., birth control) or the right to be asserted is against a private employer rather than universal legal compulsion.

I am sure that the various arguments thought to underly a constitutional right to abort are relevant here. I can imagine this is so, although someone who actually believes that there is such a right could make that case better than I. My point is that the existence of a right, in and of itself, does not imply anything about the propriety of the policies that Lithwick objects to or render them inconsistent.

Posted by Richard Esenberg on December 21, 2008 at 11:41 PM in Religion | Permalink | Comments (9) | TrackBack

Friday, December 12, 2008

A new "hot topics" program at AALS

My colleague Lloyd Mayer -- whose work relating to the constraints on political activity by tax-exempt churches has been mentioned here before -- sent me this announcement about an interesting looking "hot topics" program at the upcoming AALS meeting.  A great line-up of people will be discussing this:

The relationship between church and state has always been fraught with tension, as some advocate a strict separationist approach and others support interaction on various levels. In May 2008, a conservative religious freedom group, the Alliance Defense Fund, launched an organized campaign to challenge one particular flashpoint for disagreement: the extent to which pastors, rabbis, imams, and other religious leaders speaking to their congregations should be able to express views about politics and particularly about candidates for public office. Thanks to a federal tax provision, churches and other houses of worship have in theory had to either restrain their leaders from expressing such views from the pulpit or face the loss of the significant tax benefits they enjoy. The recruitment by the ADF of pastors at more than 30 churches to challenge this restriction on First Amendment grounds, and the demands from supporters of a strong separation between church and state for the IRS to enforce the restriction against these churches have brought this flashpoint to the fore. The panel will discuss the legal and public policy rationales that support and oppose the restriction and also this looming confrontation’s broader ramifications for religious freedom, elections, and federal tax law.

Posted by Rick Garnett on December 12, 2008 at 11:48 AM in Religion | Permalink | Comments (0) | TrackBack

Monday, December 08, 2008

And so this is Christmas ... or not

Since I am spending the holidays here at Prawfs and am about to accede to my wife's insistence that I erect various symbols of the "Winter Solstice" (or at least the Christian and western celebration that occurs about that time) around our house and property -- think of Clark Griswold --  I thought it meet and proper to acknowledge the beginning of the annual "Christmas Wars." This year's Fort Sumter seems to be the Washington state Capitol building

There is, of course, a triviality to all of this. It does not establish religion to place a Nativity scene in front of city hall anymore than the failure to do so plunges us into a Godless abyss. But these battles aren't about mangers and menorahs which is one of the reasons that the Supreme Court's approach to the matter based, as Justice Scalia puts it, in considerations more commonly associated with interior decorating than the judiciary" makes no one happy.

What brings this all to mind is less our December ritual of dueling displays and Holiday reprise of the old Miller lite commercial in which "less filling/great taste" becomes "Happy Holidays/Merry Christmas," than it is a recent decision of the European Court of Human Rights in Dogru v. France and Kervanci v. France upholding the French practice of barring Muslim girls from wearing Islamic head scarves in physical education classes over a claim that it violated the girls' freedom of thought, conscience and religion under Article of the European Convention on Human Rights.

What caught my attention is the court's emphasis on the public secularism upon which the French Republic has been based. As a consequence, the court observed, the "citizen must respect the public arena that is shared by all" and, at least in the public school context, believed that the state could exclude ostentatious and conspicuous religious displays that might create undue pressure and exclusion (although here of the students choosing to adopt the religious display.)

While depending on the particulars, the case might be decided similarly here, the frank embrace of secularism is not as readily reconciled with our tradition. While we certainly have had - and still have - judges and scholars who equate secularity with neutrality, there is also a strong counter tradition, supported, I think, by the postliberal understanding of the nature of religion, i.e., that it is shaped and sustained in communities that are permeable and influenced by the larger culture. It is not simply private and is vulnerable to outside influence. A naked public square is not silent and this is why "Happy Holidays" is not seen by all as a happy resolution.

Of course, most of the Christmas cases seem to turn on whether something is government speech as opposed to private speech in a setting in which attendance is compulsory. That may mandate a different outcome but, as the state has grown larger, the dialectic is the same. Does pluralism require the suppression of points of difference? In a truly pluralistic world, is that even possible?

More, I'm sure, to follow - both in Christmas Present and Christmas Future.

Posted by Richard Esenberg on December 8, 2008 at 11:58 AM in Religion | Permalink | Comments (2) | TrackBack

Monday, December 01, 2008

Responses to "Excluding Religion"

(Prawfsblawg alum) Nelson Tebbe's new paper, "Excluding Religion", is well worth a read.  As are, I hope, the responses to the paper that Tom Berg, Steve Smith, and I have posted at the University of Pennsylvania Law Review's "PENNumbra" site.  Here's the abstract for my own response (available here):

In a thorough and thoughtful article, Excluding Religion, Prof. Nelson Tebbe asks "whether the government may select religious entities for exclusion from its support programs?" and concludes that, sometimes, it may. "The government," he contends, "need not remain neutral toward religion in its support programs[.]"

In this short response to Tebbe's paper, I first suggest that the reasons Tebbe offers for such exclusion - including "promoting equal citizenship for members of minority faiths . . . , fostering community concord, [and] respecting taxpayers' freedom of conscience", are not particularly strong. Next, I turn to the various "limits" that Tebbe imposes on his permissible-exclusion claim, and attempt to show that, in fact, these limits fit uneasily with the claim they constrain. The aim of this attempt is not to cheer state efforts to - in Tebbe's words - "shape the content of citizens' beliefs through government speech and other means," but instead to warn that the inevitability of such efforts poses a real threat to religious freedom, one that is not likely to be repelled with assurances that the state must act nonpreferentially, or must act with a secular purpose, or must not make theological judgments. If we believe, as Tebbe and I do, that there should be limits on the power, and on the ambition, of governments when it comes to the content of citizens' commitments and the objects of their loyalty, it is essential that we think hard not only about the location of these limits, but also about the reasons for them and the worth of what it is that they protect.

Posted by Rick Garnett on December 1, 2008 at 10:52 AM in Religion | Permalink | Comments (0) | TrackBack

Wednesday, November 26, 2008

Prof. Stone, Prop. 8, and church-state separation

An item from the "debates not likely to be resolved anytime soon" file:  In this piece, Prof. Stone contends (among other things) that California's Proposition "was a highly successful effort of a particular religious group to conscript the power of the state to impose their religious beliefs on their fellow citizens, whether or not those citizens share those beliefs", and that "[t]his is a serious threat to a free society committed to the principle of separation of church and state." 

Now, Prof. Stone and I went back and forth on (pretty much) the same question, a year or two ago, in the context of the Supreme Court's decision upholding the ban on partial-birth abortion.  I wrote then that "it is not clear why the claim 'human fetuses are moral subjects and this fact constrains what should be done with and to them' is any more 'religious', or any less 'moral', than the claim 'all human beings are moral equals, regardless of race, and should be treated as such in law.'  What's more, even if it were true that the former claim is 'religious' (certainly, for many, it is religiously motivated or grounded), [it's enactment into law] does not violate . . . the 'separation of church and state' that our Constitution is thought to require."

And, here we are again . . . .   

There is much in Prof. Stone's piece with which I (and, I would think, most reflective religious believers) agree.  For example, we agree -- as it happens, I have good religious reasons for believing -- that, as Greg Kalscheur has put it, there are "moral limits on morals legislation"  We (and Pope Benedict XVI) also agree entirely regarding the importance of the principle of "separation of church and state", properly understood. 

To invoke this principle's importance though, and even to point to the fact that religious believers were much more likely to support Proposition 8 than were non-believers, does not, in my view, establish the point that Prop. 8 is (putting aside other questions about its merits) an effort to (in his words) "conscript the authority of the state to compel those who do not share their religious beliefs to act as if they do." 

As Stone himself writes, "[l]ike other citizens, [religious believers] are free in our society to support laws because they believe those laws serve legitimate ends, including such values as tradition, general conceptions of morality, and family stability."  How do we know that this is not what most of Prop. 8's supporters believe?  Stone insists that religious believers "are not free – not if they are to act as faithful American citizens – to impose their religious views on others", but again, it does not seem to follow from the fact that most of Prop. 8's supporters are religious believers, or even from the fact that their religious beliefs are consonant with Prop. 8, and motivate them to support Prop. 8, that they are trying to "impose their religious views on others."

Let's take it as given that, in a society like ours, citizens should not try to use the law to "impose their religious views on others."  How, exactly, do we decide (a) what counts as an "imposition", and (b) what counts as a distinctly "religious" view?  It seems to me that the question whether Prop. 8 is constitutional, or advisable, or deeply unjust, is not best answered by trying to pin down the nature ("religious" or "moral"?) of the beliefs it represents.

Posted by Rick Garnett on November 26, 2008 at 11:32 AM in Religion | Permalink | Comments (23) | TrackBack

Wednesday, November 19, 2008

Another Legislative Prayer Controversy...

Recent news -- a 70-year old man was arrested Monday night for interrupting a City Council meeting by praying loudly over the Council's moment of silence (HT: Religion Clause).  It's unclear from the story, but the man seems to have been protesting the Mayor's decision to stop having prayer and to go with a moment of silence.  There are a bunch of examples of legislative prayer being interrupted by dissenters; the most striking example was probably what transpired in the U.S. Senate last year. It was the first time the Senate had a Hindu guest chaplain (Rajan Zed).  When Zed began to pray, protesters from the gallery interrupted him. The whole event is here:

The people that interrupted Zed were arrested and charged; I don't know if they were convicted. 

I discuss the Zed incident (and others) in a piece that's coming out in the spring.  The piece addresses the history of legislative prayer in this country; my thesis is that legislative prayer is  more controversial and causes more division than some have believed.  I take a bit of an issue with the history provided by the Court in Marsh v. Chambers, and in particular the Court's statement that legislative prayer is "simply a tolerable acknowledgment of beliefs widely held among the people of this country."  I don't think that's an entirely accurate summary of what legislative prayer has meant for this country.   I spend a lot of time discussing Catholicism.  A fury erupted in 1832 when the first Catholic chaplain was elected.  He resigned less than a year later.  And it wasn't until 2000 that we had the next Catholic chaplain.  During that period, particularly in the 1840s and 1850s, some Protestants worked hard to end the chaplaincies altogether on the fear that Catholics would take them over.  As the incident with Zed indicates, what happened to Catholics then seems to be happening to other religious groups now -- a frequent church/state theme these days.  Anyway, the piece is here.  If you happen to read the piece and have comments, do tell me what you think.

Posted by Chris Lund on November 19, 2008 at 07:42 PM in Religion | Permalink | Comments (1) | TrackBack

Wednesday, November 12, 2008

The Weird Lineup in Pleasant Grove v. Summum

Following up on an earlier post, oral argument in Summum is today.  Pamela Harris (O'Melveny and Lecturer at Harvard) is arguing for Summum; Jay Sekulow (ACLJ) is arguing for the City. 

But the lineup of amici is striking, and it reveals how weird this case is.  Usually, in church-state cases, there's a pattern.  The left files briefs for one side; the right files briefs for the other; and the federalism people and judicial restraint people file briefs for whatever side federalism and judicial restraint are on (not that they always go together).

But Summum is different.  One might expect that the left would file for Summum, while the right would file for the City.  But that hasn't happened.  The City has 16 amici briefs in its favor; poor Summum has only 2.  (I am reminded of Justice Scalia's maxim that when the amici are stacked in one's side favor, be suspicious.)  And many of the briefs from the traditional left (Americans United, The Baptist Joint Committee, the American Humanists) were filed  "in support of neither party."  So what is all that about?  And what do we make of the Rutherford Institute, a right-wingish public interest group, similar in some respects to the ACLJ, filing on Summum's behalf?  What is going on?

What makes Summum so much fun is that it crosses up the usual party lines.  The right has a natural sympathy with Summum's claim here.  For years, they've argued (sucessfully in cases from Widmar to Good News) that it's unconstitutional to exclude religious voices from the public square.  The left doesn't agree, sometimes itself relying on the government-speech doctrine to say that the government can shape its own speech the way it wants. 

Take legislative prayer, for example.  There are a number of modern cases where speakers are alleging constitutional rights to give "sectarian" prayers.  Their claims have some natural force -- if the government requires all prayers to be nonsectarian, it by necessity has to exclude people who would give sectarian prayers.  This means that people who are religiously obligated to pray to Jesus or Allah are simply out.  That's discrimination -- and the right argues that it's unconstitutional.  The left tends to see speakers as simply having no rights in the matter.  The left sees speakers in legislative prayer cases the way the City sees Summum -- as interlopers with no constitutional rights to come in and upset the apple cart.   The Rutherford Institute actually has a cert petition pending in one of these cases.  The institute filed it on behalf of a city councilmen who claimed a constitutional right to refer to Jesus Christ in his legislative prayers.  When Summum (probably) loses, the resulting decision will likely bury the councilman's claim.  That's, in part, what the Rutherford Institute is concerned about. 

So Summum will likely lose.  And its loss looks on the surface, to be a loss for the left.  But I am not so sure it is.  My guess -- and it's only, of course, just a guess -- is that it's Jay Sekulow and the ACLJ that will be the ones really complaining about Summum in years to come.

All for now; more later.  I can't wait for the transcripts.

Posted by Chris Lund on November 12, 2008 at 01:12 PM in Religion | Permalink | Comments (3) | TrackBack

Monday, November 10, 2008

Pleasant Grove City v. Summum

It's been a quiet year for law-and-religion cases at the Supreme Court -- no Free Exercise cases, no Establishment Clause cases, nothing about the meaning of the various federal statutes addressing religious exercise (RFRA, RLUIPA, etc).

The closest thing we have is Pleasant Grove City v. Summum. Summum is a sort of follow-up to Van Orden v. Perry, which held that some government-sponsored Ten Commandments displays were constitutional. Summum was brought by a religious group that wanted to put up its own version of the Ten Commandments (the Seven Aphorisms, which they claim is what God really gave Moses) in a city park that already had a Ten Commandments display (one of a more traditional sort). In the Tenth Circuit, Summum won on its Free Speech claim; the Tenth Circuit found that the city park was a traditional public forum from which the plaintiff could only be excluded upon the showing of a compelling interest. On Wednesday, the Supreme Court will hear oral argument. And an interesting case it will be...

The case involves the government-speech doctrine. The First Amendment forbids government from discriminating against private speech, but it allows the government itself to say what it wants (that's the part that's known as the government-speech doctrine). So this case seems to boil down to whether the Ten Commandments display currently in the park -- which was donated to the City by the Fraternal Order of Eagles in 1971 -- is private or government speech. If it's private speech, Summum is being discriminated against, and it wins. But if it's government speech, Summum loses. (It could also be a hybrid of both governmental and private speech, but I won't go there in this post - and I don't think the Court will need to either.) So anyway, that's what the parties disagree about. Summum conceptualizes the existing Ten Commandments' display as speech of the Eagles; the City emphasizes its own role in approving and maintaining the display.

I think the smart money is on Summum losing, despite their superlative counsel -- the reasons why are perhaps best spelled out in Judge McConnell's dissent from denial of rehearing en banc. It's not that the plaintiffs are wrong, but I don't know if their approach will coincide with that of the Court.

There's a lot to say about Summum. (It will mean a great deal for legislative prayer, and I'll return to that in a bit.) But for right now, I just want to say something about the government-speech doctrine. The rationale behind it -- the reason why government is generally allowed to say what it wants -- lies in the idea of democratic accountability. If you don't like what the government says about, say, beef advertising, you have a remedy. You can vote the relevant government officials out of office. Summum's brief (cited to above) discusses this rationale a bit (see pgs. 37-39 of its brief). It talks about how the City's role in approving displays and the standards it was using were quite opaque. Thus, Summum argues, there's no democratic accountability here, and no justification to give the City the deference provided by the government-speech doctrine. That argument makes a great deal of sense.

But we shouldn't overlook or underestimate how bizarre it is, in general, to apply the government-speech doctrine here. The government-speech doctrine maybe works fine for matters relating to beef, but not so much with matters of religion. Telling Summum that its remedy lies in winning some elections really just leaves Summum without any remedy at all -- it returns Summum to seek redress in the same political process that treated it unequally in the first place. And it is deeply inconsistent with the Court's usual statements about religious liberty -- it turns on its head the Court's famous and longstanding maxim that matters of religion "may not be submitted to vote; they depend on the outcome of no elections." (And there's also the fact that winning elections would probably not do Summum any good anyway -- the existing Ten Commandments display in the city park may be constitutional under Van Orden v. Perry, but their Seven Aphorisms display would likely still be unconstitutional under McCreary County.)

To me, this case illustrates one of the core dangers with allowing the government to speak religiously -- it leads inevitably to a natural and unenviable political fight over what the government's religion will be and who will get to decide the issue. As I'll talk about later, that's exactly what's going on in these legislative prayer cases: Summum is to Van Orden as Pelphrey is to Marsh. But that will have to wait for a subsequent post.

Posted by Chris Lund on November 10, 2008 at 12:06 AM in Religion | Permalink | Comments (2) | TrackBack

Tuesday, November 04, 2008

Churches, Tax-Exempt Status, and Michelle Obama

So Nate Oman won't answer her calls.  And now Americans United has asked the IRS to investigate a church convention because of her appearance there.  Apparently, Michelle Obama spoke before the General Baptist State Convention of North Carolina at the end of October.  AU's letter to the IRS, available here, talks about how her appearance "took on the trappings of a campaign rally" and discusses how she "promoted her husband's candidacy and appealed for votes."  Will the IRS take it further...

Posted by Chris Lund on November 4, 2008 at 05:26 PM in Religion | Permalink | Comments (1) | TrackBack

Monday, November 03, 2008

Pelphrey v. Cobb County: The Newest Round of Legislative Prayer Battles

I've been doing a bit of academic writing about legislative prayer lately, and couldn't resist a short post on the most recent legislative prayer case -- the Eleventh Circuit's decision in Pelphrey v. Cobb County.   It is huge on both of the two major doctrinal issues -- first, whether legislative prayer can be "sectarian" in the sense of using identifiably denominational language (i.e., words like "Jesus" and "Allah"), and second, whether government can pick and choose among prayergivers on the basis of their religious affiliations.   The Eleventh Circuit said yes to #1, and no to #2.  So going forward, Cobb County can have sectarian prayer, but it has to stop having its clerk weed out Islamic, Jewish, Mormon, and Jehovah Witness prayergivers.   (No joke there: The county clerk located prospective prayergivers by going through the phone book.   Her phone book was apparently turned over in discovery, and she had crossed out a number of sections, including "Churches-Islamic," "Churches-Jehovah's Witnesses," "Churches-Jewish," and "Churches-Latter Day Saints."  Those groups just didn't get called.)

So Pelphrey means that there are now two circuit splits on legislative prayer issues.  The Fourth Circuit earlier came to the opposite conclusions on both doctrinal issues -- it held that sectarian prayers are flatly unconstitutional, and that government can indeed select prayergivers by religious affiliations.   (That latter point was made in a startling case where a Wiccan got a letter in the mail saying that she wouldn't be allowed to pray because, well, she was a Wiccan.)  End result: Both the appeal and the cross-appeal here have arguably certworthy issues to raise.  Very interesting times....

Posted by Chris Lund on November 3, 2008 at 05:33 PM in Religion | Permalink | Comments (1) | TrackBack

Same-Sex Marriage and Young Evangelicals

With Florida's Proposition 2,  California's Proposition 8, and Arizona's Proposition 102, my attention was caught by some recent polling data about young evangelicals' position on the subject.  According to this study commissioned by Religion & Ethics NewsWeekly, 26% of young white evangelical Christians support same-sex marriage, and 58% of them support either civil unions or same-sex marriage.   I was a little surprised by how high those numbers were.  Young evangelicals were also noticeably different from older ones in their support of the Republican party -- they were less likely to favor McCain, more likely to have negative impressions of Palin, and more likely to be disenchanted with Bush.  But there was one area covered by the poll where they were solidly in line with older evangelicals -- abortion.

Posted by Chris Lund on November 3, 2008 at 10:35 AM in Religion | Permalink | Comments (5) | TrackBack

Thursday, October 16, 2008

Some thoughts on Greenawalt, judicial review, and underenforcement

As Paul was kind enough to mention, Notre Dame Law School hosted a roundtable conference last week dedicated to Volume II of Kent Greenawalt's "Religion and the Constitution."  (I really like this format, by the way:  No need to worry about having an audience for the various panels -- especially the dreaded last one -- and less of a problem of presentations passing like ships in the night.)

Anyway, my own contribution (we all did short, 3-5 page "admission ticket" reflections on the book) was inspired (I think) by a mix of Thayer, Waldron, Fallon, Berman, and others.  In a nutshell, my reaction to "Kent's accomplishment in dealing in a characteristically sensitive and careful manner with a vast and complicated subject" was, among other things, to wonder if we shouldn't just give up on judicial enforcement of the no-establishment norm, outside the heartland "coercion" cases (which, I would think, Free Exercise can take care of anyway) and entanglement and church-autonomy disputes.  (ed.  Who says that's the "heartland"?  rg:  Me, I guess.)  We could come up with some clear rules -- going, in other words, in the opposite direction Kent takes us -- and even err on the side, perhaps, of over-enforcement in this heartland, where individual and institutional liberties are clearly at stake, and then leave -- as, I suppose, Noah Feldman has suggested -- most of the endorsement and even secular-purpose fights to the political process.

This admittedly tentative suggestion -- I reserve the right to retreat, sniffling, in defeat -- is prompted not so much by a strong view that only the endorsement and secular-purpose fights don't implicate non-establishment values and traditions, but instead by a sense that, in a world where we cannot all be Greenawalts, why should judges bother trying to enforce the full extent of the Clause's meaning -- or, more pointedly, why should we let them decide?  Not an original thought, of course, but it's the one I was turning over most during the conference.  See, by the way, Jeremy Waldron's "Core of the Case Against Judicial Review", here.

Posted by Rick Garnett on October 16, 2008 at 12:03 AM in Religion | Permalink | Comments (2) | TrackBack

Tuesday, September 30, 2008

And now for something completely different . . .

Jonah has the whole financial-crisis thing well in hand, it seems -- lucky for me, since all I have to offer is (a) I doubt Sarkozy's right; (b) I doubt Sen. McCain is more to blame than, say, Rep. Frank; and (c) I'm glad the Dow is up today -- and so I thought I'd register my regret that the intrusion of Serious Events overshadowed the news (or, maybe, "newslet") that I'd been anticipating for several weeks, i.e., "Pulpit Freedom Day" (link).

Anyway, the Washington Post reports, here, more than 30 ministers this past Sunday (intentionally) "[d]ef[ied] a federal law that prohibits U.S. clergy from endorsing political candidates from the pulpit."  (Paul Caron has more, typically thorough, coverage here; I blogged about this general matter a few weeks ago, here; and my colleague, Lloyd Mayer, has a good paper on the religious-freedom issues here.)

So, what will the I.R.S. do?  Stay tuned . . . . 

Posted by Rick Garnett on September 30, 2008 at 03:10 PM in Religion | Permalink | Comments (0) | TrackBack

Tuesday, March 18, 2008

Electing Faith

Alas, this is a post hoc post, as it were.  But I want to thank the wonderful student organizers of today's symposium at Boston College Law School, Electing Faith: The Intersection of Law and Religion in Politics Around the World, for a terrific day.  I think a splendid time was had by all, and I'd especially like to thank my co-panelists, Lloyd Mayer of Notre Dame and Mark Scarberry of Pepperdine, and the moderator, Fr. Greg Kalscheur, for a stimulating talk on religion in American politics.  (Sorry for the absence of the usual links to bios etc., but my hotel computer seems to be eating them for dinner.)  My talk was somewhat more timely than I'd intended: it was a comparison of the remarks of three presidential candidates on the relationship between religion and politics, and one of them happened to be Barack Obama.  (The others were JFK, natch, and Romney.)  I wasn't psychic: I was going on the basis of his 2006 speech, not today's, which I haven't read or watched yet.  In any event, a fine discussion, and thanks to all -- most particularly the students and faculty at BC for their hospitality.  I think the talks will be available online at some point and I'll certainly link to them when they are so you can laugh at me from the comfort of your own home.   

Posted by Paul Horwitz on March 18, 2008 at 10:15 PM in Religion | Permalink | Comments (0) | TrackBack

(Litigation) life imitates Prawfs? More on the Blaine Amendments

A few days ago (see below for links), some of us had a discussion here at Prawfs about, among other things, the Blaine Amendments and federalism.  Then, I received this notice from the religious-liberty litigators at the Becket Fund:

Friday, March 14, the Becket Fund for Religious Liberty is scheduled to present oral argument in St. Louis, MO, in support of Dan and Amy Pucket and their two children who were kicked off of Hot Springs, South Dakota school buses because they attended a religious school.

"The Supreme Court has said that the Blaine Amendments were 'born of bigotry' and should be 'buried now.'  It's time for the states to get out their shovels and start digging.  It is unconscionable that governments are still enforcing discriminatory nineteenth century laws against people of faith," said Roger Severino, legal counsel at the Becket Fund.

Severino will be presenting the argument for the Puckets before the federal 8th Circuit Court of Appeals. The Washington-based Becket Fund is a public interest law firm protecting the free expression of all religious traditions.  It is nonprofit, nonpartisan, and interfaith.

The case of Pucket v. Rounds concerns the right of the Pucket children to be bused from their rural home to a Lutheran elementary school. The state refused citing South Dakota's Blaine Amendments. The Blaine Amendments were passed at the height of
nativist anti-Catholic agitation in the 1880s and are used today to bar religiously-affiliated organizations of all sorts from receiving any form of government aid in South Dakota, and dozens of other states.

Prof. Friedman has a link to the oral argument, hereHere is the Becket Fund's litigation backgrounder on the case.  And, for some earlier discussion among Rick Hills, me, and others, on the Blaine Amendments, judicial review, and federalism, see these posts and the attached comments.

Posted by Rick Garnett on March 18, 2008 at 09:23 AM in Religion | Permalink | Comments (0) | TrackBack

Friday, February 29, 2008

For Our Hanover, New Hampshire-Area Readers...

I'll be speaking later today at a neat-looking conference at Dartmouth College co-sponsored by the Ford Foundation, titled "The Gaze & the Veil: Surveillance and the Legacies of Orientalism." My topic, specifically, is "Hamdan v. Rumsfeld and the Marginalization of Individual Rights," a paper to which I've alluded before, and about which I hope to blog more shortly.

In the meantime, it's frickin' cold here! When I got on the plane this morning, I almost got off when the pilot said it was -12 at our destination (Lebanon Municipal Airport). Fortunately, by the time we landed, it had "warmed up" to -10.

At least there's EBA's!!!

Posted by Steve Vladeck on February 29, 2008 at 02:42 PM in Article Spotlight, Culture, Religion, Steve Vladeck | Permalink | Comments (0) | TrackBack

Monday, February 11, 2008

The Archbishop and Shari'a

In a recent interview, Rowan Williams, the Archbishop of Canterbury, explained his view that, in the interest of "social cohesion", certain aspects of Shari'a, or Islamic law, should be incorporated into British law.  (The suggestion prompted Ruth Gledhill, in The Times, to ask, "Has the Archbishop Gone Bonkers?").  Well, has he?  Or, are his remarks better understood as a cautious and thoughtful reminder about the importance of legal pluralism?  Or, as something else?  What do people think?

In his interview, he elaborated:

It seem unavoidable and indeed as a matter of fact certain provision of Sharia are already recognised in our society and under our law; so it's not as if we're bringing in an alien and rival system; we already have in this country a number of situations in which the law the internal law of religious communities is recognised by the law of the land as justified conscientious objections in certain circumstances in providing certain kinds of social relations, so I think we need to look at this with a clearer eye and not imagine either we know exactly what we mean by Sharia and not just associate it with what we read about Saudi Arabia or wherever. . . .

Commenting on the reaction that such an incorporation is inconsistent with liberalism, he said:

[A] lot of what's written suggests that the ideal situation is one in which there is one law and only one law for everybody; now that principle that there's one law for everybody is an important pillar of our social identity as a Western liberal democracy, but I think it's a misunderstanding to suppose that that means people don't have other affiliations, other loyalties which shape and dictate how they behave in society and the law needs to take some account of that, so an approach to law which simply said, 'There is one law for everybody and that is all there is to be said, and anything else that commands your loyalty or your allegiance is completely irrelevant in the processes of the courts'. I think that's a bit of a danger.

I tend to be sympathetic to the claim that, generally speaking, genuine "social cohesion" is better achieved through pluralism than through an insistence that all sectors of society honor and enforce the (usually liberal) rules that we impose on state action.  Is this all that the Archbishop is saying?  Or, do his remarks suggest a capitulation that goes beyond pluralism?

Posted by Rick Garnett on February 11, 2008 at 09:46 AM in Religion | Permalink | Comments (2) | TrackBack

Sunday, February 10, 2008

"The Things that are not Caesar's"

Here's more information about a conference -- sponsored by The Federalist Society -- on religious freedom and church-autonomy, that might be of interest to Prawfs readers.  The invited presenters include John Garvey, Nick Wolterstorff, Chip Lupu, Bob Tuttle, Doug Laycock, Tom Berg, and others.   Here's a summary of the agenda:

Church autonomy issues are at the forefront of contemporary debates in church/state law.  Such issues arise whenever the government seeks to impose a regulatory burden on a church or any religious organization.  Often the regulatory burden comes in the form of generally applicable legislation that is facially neutral with respect to religion.  The regulation may also take place through developments in the common law, such as claims sounding in tort, contract, trust, or real property.

Some of the pressing topics in the area of church autonomy include ministerial exceptions to employment discrimination claims, IRS tax exempt status and political speech, unconstitutional conditions on public benefits, and bankruptcy litigation.  An older and still important line of cases deals with intra-church disputes in which two factions litigate ownership of church property.  Finally, there is the matter of tort claims against a church for clergy sexual abuse, a particularly difficult area that has arguably eroded the scope of church autonomy in other contexts.

Posted by Rick Garnett on February 10, 2008 at 02:09 PM in Religion | Permalink | Comments (3) | TrackBack

Thursday, February 07, 2008

"Religion and the Constitution" at Princeton

If you are in the area, consider coming to this conference, on "The Contributions of William H. Rehnquist to Constitutional Jurisprudence", tomorrow at Princeton.  The conference is co-sponsored by the James Madison Program there and by the Program in Law and Public Affairs.  I'll be speaking on "Religion and the Constitution"; Kent Greenawalt and Donald Drakeman will be responding.  There are also panels on Federalism and Constitutional Criminal Procedure.

Posted by Rick Garnett on February 7, 2008 at 08:24 AM in Religion | Permalink | Comments (0) | TrackBack

Monday, February 04, 2008

The Giants, Carnival, and Antinomianism

It's good to be back on Prawfsblawg -- thanks to Dan & Co. for inviting me back. I'm a visiting professor at BU law school, teaching law & religion this semester, and a Ph.D candidate in Jewish Thought at Hebrew University. I'm also, like one of my fellow bloggers this month, a lifelong Giants fan who is still in some stage of shock and awe over last night's miracle.

My work these days revolves around antinomianism, and the different reasons people deliberately break the law. Last night, as I celebrated the Giants victory in Union Square with a few hundred other fans, I was reminded of one of the simplest: because of the sheer joy of anarchy, the release of carnival. As many scholars have explored, mostly following the lead of Mikhail Bahktin, European carnivals were times at which all order was deliberately overturned. Structures of gender, class, and religion were all inverted -- an act which, if nothing else, proves that pre-modern and early modern Europeans were quite aware of those structures as structures, contrary to the claims of some naive conservatives today. Social theorists differ on what carnival accomplished. Some believe it was a kind of release valve, actually perpetuating power structures by giving the disadvantaged a relatively harmless way to blow off steam. Others see them as subversive, noting that many authorities tried, but failed, to forbid them.

Last night in Union Square was not so antinomian, but it was a bit. Revelers charged out onto 14th street, stopping traffic -- it reminded me of the Critical Mass bike rides, which do the same thing once a month. A very enthusiastic garbage truck driver, initially stopped in traffic, ended up staying put for half an hour or so, honking his loud horn in the tat... tat... tat-tat-tat rhythm New York sports fans know very well. People climbed up on top of the garbage truck, danced on the hood and the roof of the cab, swung from the poles the garbage workers usually hold onto, banged on the side. (Full disclosure: I banged on the side too. Fun!) It was joyous, not least because the ordinary rules were suspended. The traffic would just have to wait. (Thinking about it, this antinomianism reflects the Giants' victory itself, which surely ran counter to most everyone's expectations of what ought to happen. The game itself was carnival.)

Eventually, of course, the cops came...

Eventually, of course, the cops came and disbursed the crowd.  Thankfully, I didn't see any violence, although there was clearly the potential for it, with some drunken fans and a whole lot of riotous energy swirling around.  (One darkly funny moment came when one African-American fan chanted at the cops, in the "Let's Go Giants" tune, "Go ahead, beat me up...  I need a lawsuit.")  Then again, I left before it got too messy -- which is why I chose Union Square over Times Square in the first place.

Obviously, it's that energy -- wild, joyful, also somewhat dangerous -- that law is meant to contain.  From our founding myths to present-day realities, law is that which allows us to live together withut killing each other.  Of course, I didn't like being on the side, somehow, of the police officers shouting from inside their cars "clear the road immediately!"  I wonder how much we as law professors, by inculcating a certain respect for the law, are spoilsports in the worst sense of the word.  Is the momentum of legal reasoning itself against eros, against Thoreau, against carnival and celebration?  Despite our leather jackets and supposedly cooler demeanors, are we not as distant from the dour, grey flannel suit lawyers as we suppose?

Moreover, since that eros-energy is so close to sexual energy, it's no surprise that any changes in the regulation of sexuality are likened by some conservatives to the very destruction of society itself.  (One of my main areas of interest is the intersection between law, sexuality, and religion.)  Maybe they're right; if this cat (or snake) gets out of the bag, who knows what might result.  

Sure, it's all about balance.  A little Super Bowl celebration, sure; violence or destruction of property no.  But as in all calls for "balance," it's not clear how the line gets drawn, how the balance gets set, and, more importantly, the momentum of "balancing," as we teach law, arguably runs counter to some of the energies of humanity that I, at least, want to celebrate.

Just some antinomian thoughts from a still-glowing Giants fan, suspended between Super Days.

Posted by Jay Michaelson on February 4, 2008 at 10:18 AM in Religion | Permalink | Comments (0) | TrackBack

Thursday, December 13, 2007

"Separation Anxieties: Church and State"

Dan was nice enough, a few weeks ago, to post about my participation in a "Dan Rather Reports" panel discussion, "Separation Anxieties:  Church and State."  If anyone is interested, here's a link to the video of the program.   (I have to say, having gone to college at an institution that is, architecturally, a Princeton knock-off, that the Princeton campus is just great.)

Posted by Rick Garnett on December 13, 2007 at 09:34 AM in Religion | Permalink | Comments (0) | TrackBack

Friday, December 07, 2007

Does "freedom require[] religion"?

In his "Faith in America" speech, Gov. Mitt Romney said, among other things:

Freedom requires religion just as religion requires freedom. Freedom opens the windows of the soul so that man can discover his most profound beliefs and commune with God. Freedom and religion endure together, or perish alone.

Is this true?  Over at Balkinization, Jack Balkin says that this statement (and some others) in the speech "strongly identify Americans and Americanism with belief in God."  Is this true?

For starters, it is (obviously) not the case that only those persons who believe in God (or who, in Gov. Romney's words, "believe that Jesus Christ is the Son of God and the Savior of mankind") are or can be good Americans.  It is certainly not the case that only such persons desire, deserve, and sacrifice for "freedom"; or that only a political community consisting primarily of such persons can be "free."

I do not know exactly what Gov. Romney intended to communicate or claim with the statement that "[f]reedom requires religion".  If he intended to claim with that statement what (it sounds like) Prof. Balkin understands him to have claimed, he was mistaken.  (It seems to me unlikely, though, that Gov. Romney believes that only theists -- or Mormons, for that matter -- are or can be good Americans.)

That said, I believe that it is true -- or, at least, that there is a sense in which it is true -- that political "freedom requires religion."  To be clear:  It is not true that a political community of religious people will, necessarily, be "free"; or that a political community in which most people do not believe in God cannot be "free"; or that religious believers will always cherish, protect, respect, or even understand political freedom.  (I assume that Prof. Balkin and I agree entirely about all this.)

All that said, it seems to me that the existence and maintenance of political freedom does depend on -- i.e., does "require[]" -- "religion" in the sense that political freedom requires not merely constitutional or other legal limits on government power and official action, but also that (and a consensus that) the aims, sphere, authority, purpose, reach, and nature of the state -- of politics -- be limited, by something else.  That is, it is crucial to political freedom that -- in Harold Berman's words -- it not be "for the secular authority alone to decide where its boundaries should be fixed" and that -- as John Courtney Murray put it -- there be "room for the independent exercise of an authority which is not that of the state."  And, it seems to me that "religion" is best, and perhaps only, able to satisfy (even though, of course, it has often failed badly to satisfy) these requirements.  (I tried to flesh out this idea in this short paper.)

What do others think?  Is this, or something like this, plausible?

I cannot emphasize this enough:  To suggest this is not, at all, to say that only religious people understand the value of, and cherish, freedom-under-and-through-limited-government.  None of this is intended to be -- or, objectively, is -- exclusionary, triumphalist, "theocratic", or "Christianist."  Nor am I claiming that these thoughts of mine capture or reflect what Gov. Romney intended to say.  I do not know, exactly, what he indended to say.  (Disclosure:  I am a member the Thompson campaign's Law Professors Committee.)

Posted by Rick Garnett on December 7, 2007 at 10:11 AM in Religion | Permalink | Comments (11) | TrackBack

Wednesday, November 14, 2007

Should I Be Nonplussed by Howard Dean?

In this space a while back, I wrote a post entitled "Should I Be Offended by Ann Coulter?"  It discussed Coulter's apparent assertion that her perfect world would be both all-Republican and all-Christian; she added that Jews were "unperfected" because they denied the divinity of Christ, and suggested that everyone should become Christians.  Coulter's remark recalled the statement of then-candidate Bush that the acceptance of Christ is the sole route to heaven -- a remark that was somewhat misconstrued and misreported, but that occasioned complaints then and still does.  I wrote that Coulter could be criticized on a number of levels, but that "simply to bear witness on a fundamental disagreement about matters of faith is not, I think, offensive in and of itself."  I would say the same thing about Bush's statement about salvation.

All of this comes to mind because Eugene links on the VC today to a report by the Jewish Telegraph Agency on a speech by DNC chair Howard Dean to an assembly of Jewish leaders, in which Dean said:

"This country is not a theocracy . . . .  There are fundamental differences between the Republican Party and the Democratic Party.  The Democratic Party believes that everybody in this room ought to be comfortable being an American Jew, not just an American; that there are no bars to heaven for anybody; that we are not a one-religion nation; and that no child or member of a football team ought to be able to cringe at the last line of a prayer before going onto the field."

Eugene's own comments are worth reading.  Eugene points out that many Democrats do believe  that belief in Christ, or in Allah, or in some other religious doctrine, is necessary for salvation.  He says that Dean "can no more make assurances about the Democratic Party's stand on salvation through works than he can about its stand on transsubstantiation or Papal infallibility."

My take on this is similar but somewhat different in focus.  Of course, the Democratic Party qua political party could adopt a particular religious viewpoint if it wanted, by, for instance, enshrining it in the party platform.  In the real world, however, it would not, and such a plan would be ignored even if it were adopted, so Eugene's conclusion is correct, practically speaking.  Mostly, though, I just find Dean's remarks strange and close to incoherent.  It's not just that plenty of Democrats believe that there are specific bars to heaven for non-believers -- that you have to acknowledge belief in the right god to enter into heaven.  Even if we had a more ecumenical view of the turnstiles at the Pearly Gates, though, surely many if not most religionists (including religionist Democrats) believe there are other potential bars to heaven -- for the wicked, the unrepentant, and so on.

Beyond this, and keeping in mind that Dean was talking to a Jewish audience, one must acknowledge that Dean's Democratic theology is simply inaccessible to some of the very audience he was addressing.  Many Jews don't believe in an afterlife at all, and others don't believe in heaven as such.  What could his statements possibly mean to them?  Would they not be either gibberish or an affront?  For other Jews, heaven exists and is available to people of all faiths.  (For quick-and-dirty Internet info, see this.)  Dean's remarks would indeed resonate with them.  But does that mean that Dean is, in effect, adopting a particularly and peculiarly Jewish theology on behalf of his party?  If so -- or even if Dean is simply shopping a similar, but not specifically Jewish, view of heaven -- shouldn't those Democrats, whether Jewish or otherwise, who adopt a different view of the existence of heaven and the preconditions for salvation be offended by his presumption?

Of course, we can understand what Dean is really trying to say: that the Democratic Party sets no religious preconditions on entry into the democratic sphere, and values all faiths equally.  (I might add that this boilerplate applies equally in principle and, generally, in practice to the Republican Party as well.)  But by trying to merge statements about pluralism in the world, and in ordinary politics, with statements about theology, Dean cooks up a dog's breakfast.  In a religiously plural world, as I wrote earlier, everyone should be equally welcome at the table; but that hardly means we are all obliged to share the view that we are also equally entitled to enter into heaven.  There is nothing wrong, from a secular viewpoint, with holding the belief that, say, acceptance of Jesus is necessary to be saved; or that good works are necessary to be saved; or that belonging to some faith or other is necessary -- although it is true that not all these views can be accurate theologically and one can disagree with them on that basis.  Secular politics can and should demand that we live together and reason together, but it cannot demand that we give up fundamental disagreements of this sort.  Certainly the Democratic Party's writ runs out long before that point.

One last question: Should I, or you, be any more or less offended by Dean's remarks than I was by Coulter's?  I might or might not prefer his theology to hers, or vice versa; but are they really that different?  To the extent that Coulter was offensive because she was trying to impose a particular theological view on the world and on her party, is Dean acting any differently?  To be sure, Coulter is a deliberate provocateuse, and we might say that one difference between the two individuals is that Coulter does not want to shut up, while Dean can't seem to shut up.  Certainly she is a more piquant speaker, and we might find her more objectionable for that reason.  But in substance, aren't their remarks equally offensive?  Aren't they both trying to tell us who gets into heaven, even if Dean's answer happens to be "everyone?"       

Posted by Paul Horwitz on November 14, 2007 at 10:15 AM in Religion | Permalink | Comments (5) | TrackBack

Monday, November 12, 2007

JFK's Houston speech

CSPAN's web site has a link to John F. Kennedy's September 1960 speech to ministers in Houston about his Catholicism.  It's fascinating, especially the Q & A section, which is pretty bruising. 

Relatedly, here's a news story regarding Mitt Romney's decision (for now, anyway) not to give an LDS version of "the Speech."

Posted by Rick Garnett on November 12, 2007 at 11:26 AM in Religion | Permalink | Comments (2) | TrackBack

Thursday, November 08, 2007

The Catholic Recipe for Hamburgers

In blogospheric terms, the discussion of Justice Scalia's statement that there is no such thing as a Catholic judge is long over, so it's a little late to weigh in.  Moreover, I agree generally with Rick's pithy pronouncement on the subject, which he fills in on MoJ and in the comments to his post, so it would seem there is little to add.  But I want to add two comments.  The first is raised by a quote offered up by Judge William Pryor in his article, The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale L. & Pol'y Rev. 347 (2006), which is well worth reading.  In his article, Judge Pryor offers up this quote from the Catholic Catechism:

Human work proceeds directly from persons created in the image of God and called to prolong the work of creation . . . . Work honors the Creator's gifts and the talents received from him.  It can also be redemptive.  By enduring the harship of work in union with Jesus, the carpenter of Nazareth and the one crucified on Calvary, man collaborates in a certain fashion with the Son of God in his redemptive work.  He shows himself to be a disciple of Christ by carrying the cross, daily, in the work he is called to accomplish.  Work can be a means of sanctification and a way of animating earthly realities with the Spirit of Christ.

Obviously, this sentiment does not mandate, or even suggest, a particular jurisprudential view or methodology.  In that sense, a "Catholic Justice" imbued with this belief in work as a duty of faith may be indistinguishable in his or her outward approach or outcome from any other judge; so Scalia is right, in that limited sense, to say there is no such thing as a Catholic Justice.  But in a broader sense, he is wrong: a faithful Catholic Justice brings to his work a sense of the sacredness of all work, of the hope that labor can be a profound and redemptive activity.  Surely that is something distinctive.  "Distinctive," not unique -- it is an outlook that surely is not limited to Catholics, nor, I think, to religious individuals.  But distinctive, nonetheless.

Which leads me to my other comment, and the title for this post.  Justice Scalia said in his remarks that the Catholic faith seems to him to have little effect on his work as a judge, "just as there is no Catholic way to cook a hamburger."  At the risk of straying into an almost self-parodying respect for religion, I take issue with that, and I was disappointed that no one during the first round of discussion of Scalia's comments focused on the mundane act of cooking a hamburger rather than the supposedly exalted act of judging.  Surely the point of a religious life, or of any effort to live a serious and thoughtful life, is that any and every action can be imbued with purpose, meaning, or at least a sense of the fullness of the moment.  If anything, I think the question whether there is a "Catholic [or other] way to cook a hamburger" -- whether, in less risible terms, it's possible to invest mundane acts with meaning -- is of more importance than the comparatively episodic and ephemeral work of judging. 

   

Posted by Paul Horwitz on November 8, 2007 at 05:31 PM in Religion | Permalink | Comments (4) | TrackBack

Thursday, October 18, 2007

Is Justice Scalia a "Catholic" judge?

He says no.  I say, "actually, yes."

Posted by Rick Garnett on October 18, 2007 at 09:16 AM in Religion | Permalink | Comments (6) | TrackBack

Wednesday, October 10, 2007

Voting by the 'Book'

Ramadan draws to a close this week. In the past several days, during this season of sacrifice, I've given considerable thought to the recent comments of John McCain--both his claim that the U.S. is a Christian country and his expressed discomfort with the thought of a Muslim for president. He feels, he said, that his faith likely offers 'better spiritual guidance' than that of a Muslim.

Such a stance may resonate with candidates who seek to gain the confidence of voters by espousing their religious views. Candidates whose beliefs do not mirror those of the American majority, however, may take a different tack (as did Keith Ellison, whose successful Congressional campaign was decidedly not about his adherence to Islam).

Is religious belief a proper decisive factor in determining for whom to vote? Those who answer this question in the affirmative may do so as part of a belief system that equates morality, ethical behaviour, and strength of character, for example, with religious adherence. I am not convinced, however, that such a consideration should be a driving force behind candidate selection in the voting booth (and not only because our moral compass may be a product of evolution). I may be old-fashioned, but I vote based on whether a candidate will uphold the Constitution, and whether, in the case of a president, any Supreme Court justice appointed will refrain from serving as a facilitator for an ideological agenda. And I am curious: If one is moved to vote for a candidate based on religious identity, what is it about that identity that indicates the candidate's willingness to perform, once elected, in a manner Constitutionally mandated?

If one refutes the notion that having a largely Christian population does not mean that a country is in fact Christian, then the response to the question posed above the break is pretty simple. But what of those Americans who are not Christian, but tend to vote with (to the extent possible) the candidates' claimed religion in mind? And what of those--nonbelievers or not--who wish to avoid consideration of a candidate's beliefs, but are nevertheless inundated with the matter?

Of course, this all presupposes that one has made it to the voting booth in the first place--a potentially faulty assumption given the uncertain future of voter ID laws. But more on that in a future post.

Posted by Nadine Farid on October 10, 2007 at 01:25 AM in Religion | Permalink | Comments (12) | TrackBack

Thursday, October 04, 2007

Marci Hamilton on the Red Mass

In a column on FindLaw earlier this week, Professor Marci Hamilton wrote about this year's Red Mass.  This is a traditional event in many places, in which the Catholic Church, as that redoubtable source of Catholic wisdom -- Wikipedia -- puts it, "requests guidance from the Holy Spirit for all who seek justice, and offers the opportunity to reflect on what Catholics believe is the God-given power and responsibility of all in the legal profession."  I've attended the Red Mass in DC a couple of times, and it is, for good or ill, a star-studded event.  Hamilton notes that this year's audience included six Supreme Court Justices -- Roberts, Scalia, Thomas, Kennedy, and Alito, all Catholics, and Justice Breyer, who is Jewish.  At this year's Red Mass, according to one report, the homily "alluded to such issues as abortion, euthanasia, cloning and human sexuality."

Hamilton's column is careful.  She says the Justices "have the right to worship as they choose"; that the archbishop who delivered the homily had every right to "preach his Church's beliefs"; and that "[n]o one is asking the Justices to abandon their faith -- least of all myself."  But Hamilton says "there is reason to feel some unease with respect to their presence at the event."  She suggests that the archbishop's description of the event as an opportunity "to rejoice in a mutually enriching alliance between religion, morality and democracy" meant "that we should rejoice in an alliance between a particular religious denomination, Catholicism, and the government."  She suggests that recent discussion of the relevance of the number of Catholics on the Court "should have put the Justices on notice to tread carefully when it comes to religiously-freighted issues that they have the duty to resolve from a secular, law-based point of view."  And she says that because the Justices have the burden of avoiding even the appearance of impropriety, "their presence at the Mass and its content still should raise questiosn for any number of Americans."  She closes by suggesting that the Justices should "provide the public with greater reassurance that they view their judicial obligations as distinct from their religious obligations.  Taking a pass on the Red Mass might well have done just that."

Is Professor Hamilton right to be concerned?  I think not.   

Part of the problem, I think, is that in some cases Hamilton misreads the homilist, and the meaning of the Red Mass.  Consider again the statement that we should "rejoice in a mutually enriching alliance between religion, morality and democracy," which Hamilton takes as signifying "an alliance between a particular religious denomination, Catholicism, and the government."  Well, it is an alliance of sorts, but not one of merger or capture; and I think it is not one the archbishop is urging on the Justices and other assembled legal professionals, but rather one that he believes is immanent in their work.  To do justice, or to seek to do so, is one among many ways of being called to live well and decently in a world that is imbued with God's presence.  And although the archbishop surely believes that the true path to understanding that presence lies in the Catholic Church, I think he, or many Catholics, also believe that all of us who work in the justice system share in a worthy calling, and all of us deserve prayers that we should do this work with strength and conviction.  In that sense, I'm not sure that Hamilton is right to characterize the Red Mass as "a public affair intended to reinforce the ties between government and the Church" -- although I suspect, having been to this celebrity-rich event a couple of times, that some individuals sometimes take this mistaken lesson from the ceremony.  Rather, I see it as an affair intended to acknowledge the special responsibility of those called to public service or to service to the justice system, to remind them of that responsibility, and to offer them the strength to live up to those responsibilities.

I also think, although she is not entirely clear here, that Hamilton overreads the archbishop's homily as directing these Justices and lawyers to reach particular substantive results in cases involving the hot-button issues he apparently alluded to.  Judges and lawyers have a somewhat unique role in administering our system of law, and their office may not always extend to using their roles to engineer particular results in keeping with the Church's views (or anyone's substantive views).  So I don't think the Justices necessarily understood themselves as being pressed to reach particular results -- although, in fairness, sensitivity to the nuances of the Church's teachings on this point may vary according to the individual homilist.  (I take no position here on whether homilists at Red Masses should tread carefully in discussing particular issues with judges in the audience; I think the most I would say it what I would always say, regardless of the audience -- that one should always speak humbly and with care, and with some thought for the occasion, although without abandoning the heart of one's most deeply held convictions.)

There's a broader point here that bothers, me, though, and that is Hamilton's belief that the Justices are obliged to "provide the public with greater reassurance that they view their judicial obligations as distinct from their religious obligations."  As stated, and at the risk of quibbling, I just don't think that's right.  The Justices, or some of them -- although perhaps this is true of Justice Breyer, too -- attend the mass because they understand that their judicial obligations are not distinct from their religious obligations: that, in faithfully carrying out their judicial obligations, they are, in a deep sense, living out their religious obligations.  For some lawyers, I am sure, the work would lose much of its meaning were it otherwise.  But that is different from saying that their religious obligations are in conflict with their judicial obligations; to the contrary, they may well best understand their religious obligations as demanding that they faithfully and humbly hew closely to their professional obligations as lawyers and judges.

I acknowledge that this is not always a point everyone gets; people may assume that religious judges are obliged to serve their religion over their office, rather than that religious judges serve their faith precisely by honoring the duties of their office.  Perhaps we need to have that conversation more, and more clearly.  But I don't think the Justices need to absent themselves from the Red Mass in the meantime.      

Posted by Paul Horwitz on October 4, 2007 at 06:55 PM in Religion | Permalink | Comments (0) | TrackBack

Thursday, September 27, 2007

"Are Churches (Just) Like the Boy Scouts?"

Here is a new paper of mine, called "Are Churches (Just) Like the Boy Scouts?", which I presented at a (great) law-and-religion conference last Spring at St. John's.  The paper talks about, among other things, the account provided by Professors Eisgruber and Sager of the church-autonomy principle; the idea of the "Freedom of the Church" (which I've tried to engage in more detail here); and an "institutional approach" to the Religion Clauses, about which Paul Horwitz has written so well (and which is also the subject of a paper I'm doing for the Villanova Law Review.)  Here is the abstract:

What role do religious communities, groups, and associations play – and, what role should they play – in our thinking and conversations about religious freedom and church-state relations? These and related questions – that is, questions about the rights and responsibilities of religious institutions – are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if we want to understand well, and to appreciate, the content and implications of our constitutional commitment to religious liberty, we need to broaden our focus, and to ask, as Professors Lupu and Tuttle have put it, about the “distinctive place of religious entities in our constitutional order.” Are religious institutions special? May and should they be treated specially?  If so, how?  Why?

For some other, in-places-different views on the subject, see this new paper by Cass Sunstein, "On the Tension Between Sex Eq uality and Religious Freedom."

Posted by Rick Garnett on September 27, 2007 at 04:22 PM in Religion | Permalink | Comments (1) | TrackBack

Friday, July 20, 2007

Koppelman on "Religion As Conversation-Starter"

May I commend a short but incisive post by Andrew Koppelman over at Balkinization.  Koppelman, who has published wonderful articles on law and religion among other topics, questions the widely shared norm of public reason that holds that "political discourse must rely on arguments that are not sectarian and can be assessed in terms of commitments that all citizens can share."  Noting the "bitter response" that religious individuals have had to this norm, he asks: "[W]hy did the liberals converge on and keep producing new articulations of a proposal, in the name of social unity and comity, that was so widely received as an insult?"  His answer, in short, is that the norm is related to wider norms of civility in American discourse, in which religion is treated as essentially private and disagreement on expressly religious terms is treated as impolite.  What's his solution?

[T]he norm of politeness needs to be revisited. As soon as A invokes religious reasons for his political position, then it has to be OK for B to challenge those reasons. It may be acrimonious, but at least we’ll be talking about what really divides us (and we’ll avoid the strange theoretical pathologies that have plagued modern liberal theory, though that seems to be a disease mainly confined to the academy). It’s more respectful to just tell each other what we think and talk about it.

I agree with him, and can't resist flacking this paper, in which I argued that religion ought to be a welcome part of public discourse, but that any genuine respect for religion and its role in public discourse compels the conclusion that religion ought to be equally subject to open criticism and attack, just as any other set of public reasons is.  Any rule in which religion is permitted in public discourse but also immunized from criticism fails to accord religion genuine respect.  Like Koppelman, I agree that the light will be worth the heat.

Anyway, read the whole thing.  Some of the comments are chaff, but others provide decent opposing views.  And if you like these sorts of discussions, note that Koppelman's article is a tip of the hat to a wonderful piece by the late Richard Rorty, "Religion as Conversation Stopper." 

 

Posted by Paul Horwitz on July 20, 2007 at 09:58 AM in Religion | Permalink | Comments (3) | TrackBack

Tuesday, June 19, 2007

Chicken Soup For the VC Soul

The other day Eugene Volokh had a post discussing news coverage of the President's recent speech at the National Hispanic Prayer Breakfast.  A typical passage -- this one from the Washington Post -- ran: "Casting his appeal in religious terms, Bush said, 'We must meet our moral obligation to treat newcomers with decency and show compassion to the vulnerable and exploited, because we're called to answer both the demands of justice and the call for mercy.'"  Volokh asked:  "Is it really quite accurate to describe this as 'us[ing] religious terms'? I would think that nonreligious people would rightly bristle at the implication [that] 'moral,' 'decency,' 'compassion,' 'justice,' or 'mercy' are inherently 'religious terms.'"

Today Eugene writes about the Vatican's issuance of a document discussing "Guidelines for the Pastoral Care of the Road," which, among other, more stereotypically "religious" issues, such as the pastoral care of street children, addressess, yes, questions such as road and highway safety.  Eugene suggests that this seems "a little more mundane than I'd expect," although he adds, "[M]aybe I'm taking too narrow a view of the role of the spiritual in daily life."

I don't mean to pick on Eugene.  Of course the President's remarks would seem unremarkable if uttered by a non-religious person, so that the reporters' description seems forced.  And of course no one expects the Vatican to address road safety at length.  (Of course, that may be why it did so!  Remember, surprise is among its chief weapons.)  So I get what he's saying.  But it seems to me that he may indeed be taking too narrow a view of the role of the spiritual in daily life.  It is entirely accurate (although, as I'll suggest in a moment, somewhat misleading) to describe the President as having used religious terms in his speech, and terms such as "moral," "compassion," and "mercy" are inherently religious terms.  For that matter, in a world in which everything is imbued with God's presence, if you see it that way -- and I think both the President and the Vatican do -- matters such as "road safety" are also inherently religious!  In a sense, whether something, or everything, is "mundane" or "inherently religious" depends on your perspective, and I take it that to the Vatican very little is mundane -- not even road safety.

Again, I'm not trying to pick a fight with Eugene.  I get what he's saying, and of course there's something to it.  (Although I think his point about the Prayer Breakfast coverage could be restated more accurately: the words the President used are inherently religious; they're just not exclusively or uniquely religous.)  I just think his two posts are complementary, in ways I wasn't sure he recognized.  They rather put me in mind of these lines from Franny and Zooey, which, as a recipient of many a bowl of holy chicken soup, I have always loved:

"If it's the religious life you want, you ought to know right now that you're missing out on every single goddam religious action that's going on around this house. You don't even have sense enough to drink when somebody brings you a cup of consecrated chicken soup—which is the only kind of chicken soup Bessie ever brings to anybody around this madhouse."

Posted by Paul Horwitz on June 19, 2007 at 10:55 PM in Religion | Permalink | Comments (1) | TrackBack

Monday, May 21, 2007

Islamic Law and Public Reason

Mohammad Fadel recently made two outstanding articles available discussing the compatibility of Islamic law with a Rawlsian conception of political liberalism that is based on the idea of public reason. In The True, the Good and the Reasonable, Fadel shows how the constitutional essentials of a liberal state can be endorsed from within a comprehensive Islamic view of the good; especially in religiously diverse societies, such a view can contribute to an overlapping consensus supporting that basic structure. Fadel argues that freedom of conscience is necessary to accommodate long-standing epistemological skepticism regarding our ability to know the content of divine law as well as to protect free theological inquiry and the doctrinal pluralism that inevitably results. Moreover, Fadel argues that juridical concepts such as the universal human goods and ‘public policy’ should be understood as intellectual precursors to the idea of public reason.

Fadel’s presentation is learned and important, though there are a few junctures at which I would take the discussion in a different direction. Fadel says that his analysis is aimed at Western countries with significant Muslim populations and not at Muslim-majority jurisdictions adapting Islamic teaching to modern conditions. I was surprised that Fadel would cast his piece in this light without engaging more with the old and vast literature devoted to the propriety of living as a Muslim in non-Muslim lands. Alternatively, his analysis seems very relevant to secular regimes in the Muslim world itself whose legitimacy is challenged by religious conservatives as well as to Muslim-majority countries which contain substantial intra- and inter-religious diversity. More broadly, I wonder whether Fadel has selected the right theoretical framework within which to analyze the issue. It seems to me that the conceptual structure of Islamic political thought is not liberal but republican, built around ideals of nondomination, civic virtue, and the public good. Republican and liberal regimes tend to converge on similar constitutional structures—separation of powers, constitutional constraints, public accountability—so if one can reflectively endorse the former one can generally endorse the latter as well. But there are important conceptual differences between the two political theories, and if one theory provides a more direct explanation of the compatibility of Islamic teaching with constitutional democracy then those differences are worth exploring.

In Public Reason as a Strategy for Principled Reconciliation, Fadel argues that, to the extent that rules of Islamic law cannot be justified through public reason, the state may require or prohibit what Islamic law permits, or permit what Islamic law requires or forbids, without substantially infringing on religious freedom. Religious freedom does impose limits, however, on the state’s ability to require what Islamic law forbids or forbid what Islamic law requires. Requirements of Islamic law that are unsupported by public reason can be applied to those who voluntarily submit to its norms, for instance through alternative criminal sentencing or a form of ADR for commercial and family disputes. Although I find Fadel’s analysis of the three primary normative modalities— prohibition, permission, obligation—illuminating, I feel he does not give sufficient effect to the distinction among permissible acts between those that are encouraged, discouraged, and neutral from a religious perspective. Say that the beard and the headscarf are encouraged but not required by Islamic teaching or are neutral from a doctrinal perspective but are recognized symbols of religious identity. Legal prohibitions on these expressions of religious belief still seem to infringe rights of religious freedom. By contrast, Fadel argues that polygamy may be prohibited by the state simply because it is not supported by public reason and not required by Islam. Fadel observes that polygamy is permitted but discouraged within Islam, but does so not to justify the legal prohibition but only to point out that polygamy presents a relatively easy case of legally prohibiting what religion merely permits. I think Fadel’s argument would be stronger if he explored the possibility that the justification for legally prohibiting practices that are permitted but not required by religious teachings depends in part on whether those practices are encouraged, discouraged, or neutral within the religion itself. In any case, Fadel’s argument suggests that we cannot adjudicate the compatibility of a legal prohibition with rights of religious freedom without first understanding the normative status of the underlying activity within the religion itself. And adoption of that position by constitutional courts may thrust the judiciary into deeply controversial religious debates.

Posted by Adil Haque on May 21, 2007 at 09:02 AM in Constitutional thoughts, Criminal Law, First Amendment, Religion | Permalink | Comments (1) | TrackBack

Friday, May 18, 2007

Christopher Hitchens: God? Feh!

Last night, one of my favorite intellectual pugilists, Christopher Hitchens, came to town to perform his enfant terrible show.  This time the subject was Hitchens' new book,  God Is Not Great: How Religion Poisons Everything.  Speaking at Temple Judea(!), Hitchens drew a packed house (maybe a 1000 people).  So much so, Rabbi Goldberg, who was moderating Hitchens' talk,  had to restrain himself: it's hard to see the place so crowded, the rabbi lamented, and not get to launch into a High Holy Day sermon, even in May. (Rabbi Goldberg has a blog post about this himself. Worth checking out.)

Hitchens was not the only draw, however. Also invited to the event were Lama Karma Chotso, a Buddhist nun who is now president of the Interfaith Council of Greater Hollywood (FL) and several scholars from FIU's Center for the Study of Spirituality, including: Prof. Daniel J. Alvarez (torn between evangelical and faithlessness), Prof. Nathan Katz (Orthodox Jew who's a buddy of the Dalai Lama), and Prof. Aisha Musa (Muslim). What follows after the jump is my recollection of the gist of the exchanges but is not to be relied upon as an accurate transcription. If there are corrections that need to be made, I will speedily oblige.

Hitchens began provocatively. 

Speaking briefly but passionately, Hitchens thrust forward with the claim that religious faith is corrupt and absurd: he drew on two examples to spark debate: the Akedah (near-sacrificial binding) of Isaac, and the practice of circumcision. What kind of world do we want to live in where parents are ready to both kill their children to mollify a divine request and mutilate their children (whether boy or girl) to show their faithfulness?

Unfortunately, the respondents did not parry Hitchens' initial provocations during the talk, instead raising the problems they saw with the facts in the book. (To be fair, they weren't told what Hitchens was going to say that evening, so they read the book and gave their reactions.)  Thus, for example, Katz, in his response, pointed out that Hitchens had fallen for the claim that Orthodox Jews make love through a sheet with a hole in it.  The claim is an arrant myth.  And Katz rightly tweaked Hitchens for not having done his homework.  But in the course of making his rebuke, Katz said that telling such a story was effectively only a few degrees less bad than raising the canard of the blood-libel.  Katz also contested CH's claim that religion mucks everything up by invoking some of the empirical data suggesting that religious people recover from surgery because of prayer, are more likely to give to charity, and that circumcision is a good preventive tool against HIV transmission. 

When it was Hitchens' turn to speak, true to form, he went apeshit upon Katz's comparison of what he wrote to the blood-libel, saying, essentially, that if Katz hadn't been his invited guest at this house of worship, he would go outside and beat him senseless.  So much for that burgeoning friendship...  On the merits, Hitchens said, look, if I'm wrong about the sheets with holes, then so be it; I'll happily remove it. It doesn't hurt my overall claim that religious practice denigrates women and is afraid of the female birth canal.  As to the empirical claims that religion has a healing effect, Hitchens said, why do we need medicine at all then? And if religious people are to be praised for their charity, doesn't it undermine the goodness of such a charitable impulse if it's done for fear of powers invisible, as Hobbes would put it?  The larger claim that we need God to be good is patently false, says Hitchens. 

Professor Musa took Hitchens to task about which translation of the Koran he was purporting to use in the book, and the one he actually used, and then made a larger point: the Koran is a wonderful book demonstrating that Islam is a religion of peace, and Islam is being corrupted in some places by the human element.  Showing he was not afraid, as he put it, to attack the ideas of a Muslim woman in a wheelchair, Hitchens called bollocks: why is it that not a single Muslim authority issued a Fatwa against Saddam's genocide against the Kurdish Mulsim population? Why does the Koran call for death to infidels in this and that sura? And on. 

Prof. Alvarez, meanwhile, chastized Hitchens for having evinced no empathy for the religious worldview in his book, and more sharply, contended that Hitchens' preferred secular humanism and scientism led to the Nazi and fascist worldviews.  Hitchens responded with a learned disquisition on the Catholic Church's ties to fascism throughout Europe, and how the Church during WWII asked its priests to say prayers for the Nazi regime.  Alvarez responded: Albert Speer once wrote that the Germans weren't better killers because of their Christian conscience.  Hitchens: 25% of the German killing machine were practicing Catholics. Not one got excommunicated.  Know who got excommunicated? Goebbels.  Know why? He married a Protestant.  Game over.

Even the gracious Buddhist nun got her drubbing from Hitchens.  Sure, everyone thinks Buddhists are such lovely people.  And you're no different. But Zen Buddhism was the religious motivation for the Japanese suicide bombers during WWII and much of the ongoing violence in Sri Lanka is inspired by Buddhists  too. So, how do we know, Hitchens asks, which Buddhism is right? The cheery one or the deathly one? Isn't there a danger to the surrender of reason to religion?

As he wrapped up, just before questions from the audience, Hitchens quoted from memory much of the following often distorted passage of Marx from his Contribution to "Critique of Hegel's Philosophy of Right."

Religious suffering is, at one and the same time, the expression of real suffering and a protest against real suffering. Religion is the sigh of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions. It is the opium of the people.  The abolition of religion as the illusory happiness of the people is the demand for their real happiness. To call on them to give up their illusions about their condition is to call on them to give up a condition that requires illusions. The criticism of religion is, therefore, in embryo, the criticism of that vale of tears of which religion is the halo.

Though the rhetoric of the passage is quite lovely, the allusion to Marx made me wonder how Hitchens proposed reason would better adjudicate the claims among varying secular worldviews.

If Hitchens criticizes the books in light of the practices done in their name, then citing Marx is problematic, right? Hitchens knows full well of the many millions of people slaughtered under Communism. Indeed today, various people believe the wars in Iraq and Afghanistan (which Hitchens robustly supported) involve crimes against good sense if not humanity.  In light of the crimes of communism (and, to some, the crimes of quasi-liberal imperialism), can Hitchens simply say, ain't no flies on us? What method or assurances can Hitchens promise? 

It may be that Hitchens is saying: look, there are two horses running, and I'm ready to ride this one and not the other, to take my chances, in other words, with the horse of anti-theism.  But that's a mightily more modest tone than the one struck last night and in his writings.

Update: A comment below indicates that I likely erred in recalling Hitchens' point about Buddhism's role in religious violence today in Sri Lanka, so I've amended the post somewhat. Thanks Patrick.

Posted by Administrators on May 18, 2007 at 11:18 AM in Books, Current Affairs, Dan Markel, Religion | Permalink | Comments (6) | TrackBack

Thursday, May 17, 2007

Falwell, (King,) and Law and Religion

Jerry Falwell's death has, naturally, occasioned some discussion by lawprof types, including James's post below and this post on Balkinization about the roots of the Moral Majority.  Of course, much of this discussion has devolved into an unfortunate debate over whether Falwell himself was a good or bad man, or over the political views of the Moral Majority.  It's not surprising, but it's hardly conducive to much besides the trading of barbs.   

That doesn't mean one couldn't use Falwell's passing as an occasion for the discussion of issues that more deeply touch on questions of law and religion.  Here are a few. 
First, and per the post on Balkinization, what was more relevant to the growth of the movement that Falwell spearheaded: the Court's rulings in cases such as Roe v. Wade, or its rulings in cases involving the application of antidiscrimination laws to private schools and universities?  Was the broader moral component of the MM, including advocacy on issues like abortion, its wellspring, or was it simply part of a decision to focus on issues that best conduced to coalition-building among disparate religious and ideological groups?  I'm not saying, incidentally, that there are not good reasons to question the application of antidiscrimination laws to religious schools and associations; whatever the ultimate outcome of such cases should be, I think they raise serious questions.  But does it matter if those kinds of cases, and not the kinds of cases we now associate with the MM, were the real first movers in the rise of this movement? 

Second, and I think related to the first question, is this: For a time in the 1970s, Falwell advocated that fundamentalist Christians retire from the political fray and concentrate on prayer and the formation of a more perfect religious community. That position has its roots as far back as Roger Williams' concern that the garden of religion would be corrupted by the wilderness of politics: not that separation (voluntary or legal) was necessary to protect politics from religion, but in order to protect religion from politics, in the sense that religious involvement in politics would corrupt the religious participants.  It continues to find occasional echoes in calls for religious retirement from active involvement in politics from folks like David Kuo. Falwell obviously ultimately took a different route.  But which was the right route?  Were the MM and other such groups salutary for both religion and politics, or is there a genuine spiritual concern about the corrupting effects on religion of political involvement?  And even so, is that longstanding concern one that has mandatory implications for the Establishment Clause, or is it merely a statement about the risks of voluntary participation in politics by religious individuals, and one that perforce is for religious individuals to decide for themselves without any threat of legal enforcement?  Even if that's so, is it not cause for deep reflection by the religious individuals themselves, and does one run any risks in the religious/political community for saying so?


Third, one might more provocatively note the parallel between the death of Falwell and the contemporaneous death of Yolanda King, daughter of Martin Luther King, Jr., whose own involvement in politics was both profound and profoundly motivated by religious concerns.  Aside from the possibility that many of our readers might praise King's positions and condemn Falwell's positions, is it not the case that both deaths are reminders of the salutary, emancipating effect of two leaders who gave voice to, and helped others find a voice for, the view that religious individuals can be paradigm-shifters when they are fully entitled to participate in political discussion?  And is it a meaningful or relevant distinction, or even true, that the civil rights movement succeeded more deeply than the MM, in part because it found ways to translate its concerns into secular as well as religious language?  Whatever the answer to that question, is it fair to say that, however different their positions might have been, we can see deep linkages between Falwell's death and the death of a member of the King family?

Finally, one might note that Falwell was responsible for the rise of what might be a distinctly new and influential creature, although others might offer earlier examples: the genuinely and openly religious law school and, more to the point, the genuinely and openly religious lawyer, at least of the fundamentalist variety.  One might fairly ask what deep conflicts face the person who wishes to be both a good lawyer and a good Christian, or Jew, or what have you: what conflicts there are between serving one's client, or one's political mission, and serving a higher duty; whether all the tools available to cunning lawyers, in both the judicial and the political process, are appropriate tools for the religious lawyer; or whether the deeply religious lawyer is bound by obligations of integrity and ethics that necessarily hobble him or her as a lawyer.  This, it seems to me, is the interesting question surrounding figures such as Monica Goodling, and I've already written here that while I have absolutely no problem with the mission of Regent Law School to place its graduates in positions of power, such schools, rather than boasting about the positions of influence its graduates have reached, ought to ask whether they are graduating enough whistle-blowers, enough individuals who were willing to sacrifice their influence for the higher good of demanding integrity in the performance of public office.

I think these are all useful questions, and I welcome your comments on any or all of them.  I doubt, though, that we can have useful discussions of this sort in a context in which we are simply asking: Falwell -- good or bad?

Posted by Paul Horwitz on May 17, 2007 at 09:45 AM in Religion | Permalink | Comments (6) | TrackBack

Sunday, May 06, 2007

Religious-freedom infrastructure: Balkin responds

A few days ago, in this post, I commented on Jack Balkin's recent speech, "Two Ideas for Access to Knowledge– The Infrastructure of Free Expression and Margins of Appreciation," and asked:

What if we substituted "religious freedom" for "free expression"?  Does religious freedom require an infrastructure?  If so, "[w]hat is in that infrastructure"? 

Here are Balkin's thoughts, in response.

Balkin notes that the "infrastructures of religious freedom" include "a wide range of private institutions-- churches, educational institutions, and charities. They also include many of the same structures and technologies that undergird freedom of speech, because religions are usually perpetuated through communication and education, just as cultures and ideologies are."

He adds, though -- quite correctly -- that:

Religious freedom faces a special problem, however, because the U.S. Constitution limits the forms of infrastructure that the government can provide. . . .

Therefore, government can play somewhat less of a role in providing the infrastructure of religious freedom than it can in the case of free expression. Much of the slack will have to be made up for by private action, including private charity. With respect to the latter, however, government can play and has traditionally played an important role[, for example, through tax policy]. . . .

Thus, although the Establishment Clause prevents the government from singling out religion for special benefits to create an infrastructure of religious freedom, it does not prohibit the government from creating infrastructural elements that benefit both religious and nonreligious expression alike.

I don't agree here, I think.  Sometimes, the government may single out religion for special treatment -- i.e., because it is religion -- without "establishing" religion or violating the freedom of religious conscience.  In any event, I am intrigued by, and attracted to, Balkin's "infrastructure" suggestions.  Any thoughts?

Posted by Rick Garnett on May 6, 2007 at 03:08 PM in Religion | Permalink | Comments (0) | TrackBack

Tuesday, May 01, 2007

"Church, State, and the Practice of Love"

Last fall, I presented a paper at a conference, held at Villanova, about law, culture, and the work and thought of Pope Benedict XVI.  The paper is now up at SSRN (and out in the Villanova Law Review) and called "Church, State, and the Practice of Love."  It's kind of a weird paper, but some readers might be interested.  Here's the abstract:

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a “community of love.” In this letter, he explores the “organized practice” love by and through the Church, and the relationship between this practice, on the one hand, and the Church's “commitment to the just ordering of the State and society,” on the other. “God is love,” he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order. . . .

Posted by Rick Garnett on May 1, 2007 at 02:08 PM in Religion | Permalink | Comments (1) | TrackBack

Wednesday, April 11, 2007

Religious freedom conference in Portland

This conference might be of interest:  This weekend (Thurs-Sat), the University of Portland's Garaventa Center for Catholic Intellectual Life and Culture is hosting a conference, "The American Experiment in Religious Freedom."  Justice Scalia is delivering the keynote address, and presenters include:  Judge John Noonan, Kevin Hasson, Judge Diarmuid O'Scannlain, Sen. Patrick Leahy, Jean Bethke Elshtain, the lovely and talented Nicole Stelle Garnett, and many others.  Check it out.

Posted by Rick Garnett on April 11, 2007 at 11:48 PM in Religion | Permalink | Comments (8) | TrackBack

Monday, March 26, 2007

Chinese bishops and religious freedom

Shameless self-promotion time:  In today's issue of USA Today, I have this op-ed, "China's lesson on religious freedom," which is about the Holy See's resistance to China's efforts to select Catholic bishops.  Here's a bit:

Although its government likes to claim otherwise, and apparently hopes people won't notice, meaningful religious freedom does not exist in China.  . . .

And so, it was probably more disappointing than surprising when the government-controlled puppet church, the Chinese Patriotic Catholic Association, late last year purported to ordain a new bishop for Roman Catholics in the Xuzhou Diocese, about 400 miles south of Beijing, over the objections of the Holy See.

Why should we care? . . . [I]s there any reason, really, why Americans should worry much about which of these two bureaucratic adversaries — the Holy See or the People's Republic — picks Chinese bishops? . . .

The struggle for the church's freedom in China reminds us that what the separation of church and state calls for is not a public conversation or social landscape from which God is absent or banished. The point of separation is not to prevent religious believers from addressing political questions or to block laws that reflect moral commitments. Instead, "separation" refers to an institutional arrangement, and a constitutional order, in which religious institutions are free and self-governing — neither above and controlling, or beneath and subordinate to, the state. This freedom limits the state and so safeguards the freedom of all — believers and non-believers alike.

Posted by Rick Garnett on March 26, 2007 at 11:22 AM in Religion | Permalink | Comments (1) | TrackBack

Tuesday, March 20, 2007

Law and Religion at St. John's

If you are in or near New York City, here is an event that might be of interest:  On Friday, March 23, from 9:00-3:00, St. John's University School of Law is hosting a symposium (CLE available!) on "Law and Religion in the Public Square."  Noah Feldman is the keynote speaker, and presenters include Chris Eberle, Philip Hamburger, John McGreevy, Kent Greenawalt, Leslie Griffin, Bernadette Myler, and -- well, me.  "My" panel is on "religion and group rights": 

Conventionally, the free exercise of religion is thought to protect individuals.  Recently, however, courts and commentators have asked anew whether our constitutional commitments also protect the rights of religious institutions or groups.  Courts have debated, for instance, the supervision of diocesan finances by a bankruptcy court or administrative agency, the requirement thatreligiously affiliated organizations pay for employees’ contraception and churches’ decisions about the hiring and firing of clergy. Arguing from history and doctrine, panel participants will consider the concept of church autonomy in American law.

Posted by Rick Garnett on March 20, 2007 at 02:54 PM in Religion | Permalink | Comments (0) | TrackBack

Wednesday, March 07, 2007

What's the harm in religious establishments?

Jack Balkin in this post neatly cuts right to what I think is the interesting question at the heart of the Court's pending Establishment Clause case, Hein v. Freedom from Religion Foundation.  He writes:

Standing to sue should depend on the nature of the underlying substantive right. In my opinion, the Establishment Clause does not simply protect citizens from certain spending decisions (although it does do that). It protects them from certain dignitary harms caused by the government's endorsement of one religion over another, of religion in general over non-religion, or of atheism over religion. In other words, the Establishment Clause requires the government to give equal respect to its citizens with respect to religious questions, both in its symbolic activities as well as in its expenditures of money. Thus, if the Government were to erect a large sign from general appropriations stating "There is no God," this would violate the Establishment Clause because it imposes a dignitary harm on religious citizens. . . .

If my substantive theory of the Establishment Clause is correct-- and it is more or less the theory that the Court currently holds-- then then any citizen of the U.S. who suffers a dignitary harm by reason of endorsement in violation of the Establishment Clause has standing to sue, and any citizen of a state who suffers dignitary harm by reason of endorsement by a state has standing to sue. A person's status as a taxpayer is irrelevant because it has nothing to do with the underlying nature of the substantive right.

It seems right to me that our discussion about "standing" to bring Establishment Clause claims has to include claims about what, in fact, is the harm in establishments of religion and on the nature of the underlying "substantive right" protected or conferred by that provision.  The question, of course, is whether Prof. Balkin is right about the "nature" of that right, or indeed whether the Establishment Clause creates and / or protects individual "substantive" rights at all.  (Some have suggested, after all, that it is more of a "structural" provision.)

That said, it is not clear to me why or how religion-related spending decisions inflict a dignitary harm on those who object to them.  (Which is not to say such decisions are permissible, or wise.)  Is it because the government's decision to spend, over my objection, on a religion-related project to which I object insults my dignity? Is the relevant injury the painful experience of having my objection go unheeded?  Or, is it because the spending decision (to which I object) expresses a claim about me, and my worth, that insults my dignity?  Something else?  (Maybe these questions just reflect the fact that I am not convinced by the Memorial and Remonstrance-type argument that such spending decisions burden the conscience of those who object.)

Posted by Rick Garnett on March 7, 2007 at 03:23 PM in Religion | Permalink | Comments (3) | TrackBack

Wednesday, February 28, 2007

China's bishops and church-state separation

(Re-posted from the University of Chicago Law Faculty Blog):

Although its government likes to claim otherwise, and hopes we won't notice, meaningful religious freedom does not exist in China. Quite the contrary: As the United States Commission on Religious Freedom stated, in its 2006 Annual Report, “The Chinese government continues to engage in systematic and egregious violations of freedom of religion or belief." And so, it was probably more disappointing than surprising when the government-controlled puppet-church, the "Chinese Patriotic Catholic Association," last November purported to ordain a new bishop for Catholics in the Xuzhou Diocese, about 400 miles south of Beijing.

Why should we care? Is there any reason, really, why Americans should worry much about which of these two bureaucratic adversaries  - the Holy See and the People's Republic - picks Chinese bishops?

Yes, there is.

First, the Catholic Church's resistance to China's efforts to control the flock by picking the shepherds is a reminder that free and independent non-state institutions - for example, political parties, labor unions, social clubs, and churches - are essential to the development and survival of civil society and political freedom. It might not be easy to appreciate, given how used we've become to thinking of "the Vatican" as hide-bound and authoritarian, but the Holy See is waging a crucial fight for freedom. What's more, China's heavy-handed hostility to independent institutions highlights the importance, and real meaning, of the "separation of church and state."

Thomas Jefferson's famous image of a "wall of separation" between church and state does not appear in the text of our Constitution. Still, the idea of church-state "separation" is at the heart of how we Americans think about religious freedom. Indeed, as Columbia University’s Professor Philip Hamburger has observed, the "wall of separation" metaphor is, for most of us, "more familiar than the words of the First Amendment itself."

And so, while we probably cringed, we probably also nodded, when former president George H.W. Bush recalled being shot down over the South Pacific in World War II and spoke of the "fundamental values" that sustained him during the ordeal: "Mother and Dad and the strength I got from them, and God and faith - and the separation of church and state."

Unfortunately, the "separation of church and state" is widely misunderstood, by critics and defenders alike. Activists and litigants deploy the idea as a slogan, as a mantra or mandate for a faith-free public square. In some quarters, "separation" serves as a rallying cry, not for the distinctiveness and freedom of religious institutions, but for the marginalization and privatization of religious faith. And, of course, such distortions can trigger misguided overreactions, as when former congresswoman Katherine Harris of Florida announced last August that the separation of church and state is a "lie we have been told" to keep religious believers out of politics and public life.

But here is where we can learn from the persecution of the churches in China. It is precisely by failing to respect the "separation of church and state," and by trying to co-opt and domesticate what the government regards as a dangerous rival, that China is trampling on religious freedom. In a way, China and the Holy See are replaying one of the oldest and most fundamental religious-liberty scripts. Today, many regard church-state "separation" as a reaction to church control of government. In fact, though, it was for a millennium the ambition of kings to expand their power, and keep down their rivals, by controlling the church and its affairs. And, by resisting, the medieval church affirmed the foundational and still-fundamental principle that the state and its power are limited.

It should not have raised eyebrows, then, when Pope Benedict XVI recently emphasized a point that he has made often and forcefully in his writings: The "distinction between what belongs to Caesar and what belongs to God" - in other words, "the distinction between Church and State" - is not anti-religious, but is, in fact, "fundamental to Christianity." As the famous American Jesuit, John Courtney Murray, once wrote, separation is not secularism but is instead a "means, a technique, (and) a policy to implement the principle of religious freedom."

The struggle for the churches' freedom in China reminds us that what the "separation of church and state" calls for is not a public conversation or social landscape from which God is absent or banished. The point of separation is not so much to prevent religious believers from addressing political questions, to block laws that reflect moral commitments, or to tear down Ten Commandments monuments. Instead, "separation" refers to an institutional arrangement, and a constitutional order, in which religious institutions are free and self-governing - neither controlling nor controlled by the state. This freedom limits the state and so safeguards the freedom and consciences of all -  believers and non-believers alike.

Posted by Rick Garnett on February 28, 2007 at 06:28 PM in Religion | Permalink | Comments (1) | TrackBack

Friday, January 26, 2007

Teaching the "Mormon" Cases

A slightly more academic post than usual:  I'm teaching Law & Religion before a wonderful group of students this semester at Notre Dame, and have just gotten through teaching the so-called "Mormon" cases -- Reynolds, Davis v. Beason, etc.  Reynolds, especially, is useful as an introduction to the belief-conduct distinction, the question of constitutionally compelled exemptions under the Free Exercise Clause, and so on.  But these cases also raise a host of fascinating bigger-picture questions about the relationship between religion and politics, or between the "religious" and "secular" realms, both from the secular perspective and from the religious perspective.

That is especially so if one takes the time to read the 1890 Revelation from Wilford Woodruff, then-President of the Church of Jesus Christ of Latter-Day Saints, which led to the end of polygamy as a distinctive practice of the Saints.  (This is a decidedly generalized description, and none of the terms used therein are meant to be unduly conclusory or suggestive.)  In a recent paper, I wrote that one ought not casually describe the abandonment of the practice as a simple secular response to state pressure, since the Church itself describes the doctrinal shift as a product of religious revelation.  (To be clear, this was said by way of defense of the Church, not as an argument that since the change was religious, we shouldn't care that the state helped bring the Church to this pass.)  That is true, but also a little too simple.  What is striking about the Revelation is the extent to which the Revelation is an effort to grapple religiously with a set of secular facts.  Woodruff describes the Lord as having asked the Saints the following question:

Which is the wisest course for the Latter-day Saints to pursue—to continue to attempt to practice plural marriage, with the laws of the nation against it and the opposition of sixty millions of people, and at the cost of the confiscation and loss of all the Temples, and the stopping of all the ordinances therein, . . . and the imprisonment of the First Presidency and Twelve and the heads of families in the Church, and the confiscation of personal property of the people (all of which of themselves would stop the practice); or, after doing and suffering what we have through our adherence to this principle to cease the practice and submit to the law, and through doing so leave the Prophets, Apostles and fathers at home, so that they can instruct the people and attend to the duties of the Church, and also leave the Temples in the hands of the Saints . . . ?

It seems to me that professors who teach law and religion ought to include the Revelation in their reading materials. 

Of course Reynolds is useful for doctrinal reasons, but adding this material opens up a far broader set of questions, many of which have broader resonance both for the question of Free Exercise accommodation and for the relationship between religion and the state in general.  Surely our thoughts on those issues will be influenced by our sense of what it means for the state to wrong religion, whether we should speak in terms of a state altering religious practices, and so on; and from the other side, our sense of what religions should or should not seek from the state may depend on our sense of how doctrine is formed, what it means to have a "religious" as opposed to a "secular" response to events in the world, and more.  It seems to me that many of the religiously oriented legal writings on the relationship between religion and the state depend on two assumptions about religion that may be widely shared among members of many "traditional" faiths, but not by others: 1) that most or all of God's communications to man have already occurred, and therefore that religion's response to the conditions of the secular world is in some sense fixed by what has gone before; and that 2) purity of faith depends on believers making a strong distinction between religious and temporal authority and following only or primarily the former, even to the point of martyrdom.  One such set of arguments are put usefully in a paper by Mark Tushnet called In Praise of Martyrdom; but a different perspective is available in a short and remarkable paper by Frederick Mark Gedicks titled "The Integrity of Survival: A Mormon Response to Stanley Hauerwas," 42 DePaul L. Rev. 167 (1992).  I think Gedicks's wonderful paper complicates the picture painted by Tushnet substantially.

Of course this post has only raised questions, and that but generally, and hasn't even attempted to answer them.  I'm not sure that any definitive answers are available, or if they are, that they wouldn't have to proceed on a faith-by-faith basis.  And to be sure, much more (and more informed) things could and have been said about the LDS experience in American legal history (among them, this fine paper by blogger/lawprof Nathan Oman).  My point is not to settle these questions, but to encourage law & religion profs (and students!) to include the 1890 Revelation in their must-read material, and to treat Reynolds and its sequelae as raising a host of productive broader questions for the relationship between law and religion, and not just as a minor and historically quaint signpost on the road to the dreaded Employment Division v. Smith.  

Posted by Paul Horwitz on January 26, 2007 at 02:36 PM in Religion | Permalink | Comments (14) | TrackBack

Friday, January 12, 2007

Blood Transfusions and the Law -- Times Six

From the Globe and Mail comes this interesting story highlighting a standard law and religion issue: the conflict between the law's protection of the best interests of the child and the spiritual interests of some religionists -- in this case, and most commonly, Jehovah's Witnesses -- for whom blood transfusions are unacceptable for religious reasons.  In this case, the conflict is made more palpable, and poignant, by the circumstances: the story involves sextuplets, born prematurely at low birth weights.  From the story:

VANCOUVER -- While the parents of sextuplets born this week in B.C. Children's Hospital are striving to keep a low profile, the health of their babies could propel them into a courtroom and a very public clash over medical responsibilities and religious rights.

The British Columbia ministry responsible for the welfare of children confirmed yesterday that it is prepared to make the babies wards of the state, if necessary, to ensure their safety.

The parents, who have remained anonymous despite massive media attention, are Jehovah's Witnesses, members of a faith that forbids members to accept blood transfusions....

An official with the B.C. Ministry of Children and Family Development, speaking on a background basis, said the government is very much aware of the situation and is prepared to act, if necessary....

"If a health practitioner is aware of a case where a child, including a newborn, may be at risk as a result of a parent refusing to consent with a recommended treatment, the health practitioner has a legal duty to report that matter to a child-protection worker. And we would then assess and take appropriate steps to ensure the child's safety," the official said.

"In cases where treatment is deemed to be necessary to preserve a child's life, or prevent serious or permanent impairment to a child's health, it may be necessary to seek a court order - and that's what we would do."

Speaking from personal experience, I can certainly attest that transfusions are common in the treatment of premature children.  A representative for the Jehovah's Witnesses quoted in the story suggests that there are potential alternatives to blood transfusions.  I can't speak to the efficacy of those treatments.

The courts generally treat these cases as easy cases, and no doubt so would most folks.  No doubt there is about as significant a compelling government interest here as you could ask for.  My own view, nonetheless, is that courts should, to some degree and in some sense, treat cases like this as among the hardest.  Just as the government's interest is at its highest level, so the stakes are especially high for the religionists involved in the case.  As Kent Greenawalt notes in volume 1 of his recently published treatise, the religionists may "believe that their souls and the souls of their children will be jeopardized if the children receive a transfusion.  Someone might argue that the state should defer to the parents . . . . Certainly it is better to lose one's life on this earth than to suffer eternal damnation, if that is the choice."  (emphasis in original)

Should the heavy weight of the prospect of damnation shift the balance dramatically enough to change the outcome?  Ultimately, no, at least in cases involving infant children.  In such circumstances, as Greenawalt writes, it should still be the case that the courts "properly require[ ] medical treatment that is essential for life, even against a parental claim that the treatment is harmful religiously."  But courts, in their rhetoric, might at least honor the significance and poignance of such religious claims, even in cases involving children, and even if the outcome still favors the state.  Serious recognition of the weight of the religious claims involved in such cases, rather than an air of dismissiveness, might at least show respect for the religious objectors in such cases, and draw them more fully into the broader community and the legal and medical decision-making process, regardless of the outcome.  Judges certainly should give due consideration to the availability of medical alternatives in such cases, at least where they are not pressed by the genuine urgency of the situation.  And they ought to give far greater weight to such claims the more the individual involved reaches the capacity to claim the right to refuse medical treatment for him- or herself, even at a relatively young age.   In this case, as I have already suggested, given the age of the children, I certainly believe the outcome must favor the state's interest in medical treatment, even against the parents' wishes, unless genuinely credible medical alternatives exist.  But the court facing such a situation might at least treat the religious claims involved with the weight and dignity they deserve, even as it rules for the state.

I will be curious to see what my law & religion students this semester think of such a situation.  I don't doubt they'll teach me as much as I teach them.

Posted by Paul Horwitz on January 12, 2007 at 11:19 AM in Religion | Permalink | Comments (4) | TrackBack

Thursday, January 04, 2007

Taking Religion Seriously

Damon Linker has an article about Mass. Gov. Mitt Romney’s religion (“The Big Test: Taking Religion Seriously”) and why voters might want to worry about it in the Jan. 1-15, 2007 issue of The New Republic.

I am not, I admit, impressed with Linker's overheated take-down of his one-time mentor, in The Theocons.  In “The Big Test,” though, I think he makes an important point (though not, maybe, the one he intended to make).

Linker’s argument, in a nutshell – it is fleshed out a bit, here, in an online debate with Richard Lyman Bushman – is that treating Mormonism and Gov. Romney's embrace of that faith with the seriousness they deserve requires us to take seriously the possibility that Mormonism does not have the doctrinal and traditional resources capable of supporting and sustaining what Linker regards as the necessary wall between a Mormon political leader’s own “conscience,” on the one hand, and “church policy,” on the other.

Now, let's put aside, for now, the question whether Linker is right -- since I think he tends to miss the ball about things Catholic, there is no reason to think he's on target here -- about Mormonism and its resources.  (I note that Richard Lyman Bushman contends, in his contribution to the online debate with Linker, that, in fact, “Mitt Romney's insistence that he will follow his own conscience rather than church dictates is not only a personal view; it is church policy.”)  Whatever else he might be wrong about, he is right, it seems to me, to resist the suggestion -- offered by David Gergen, for example -- that Romney’s (or any other political leader’s professed religious commitments) are entirely “private” and therefore are or should be irrelevant to voters.  Religion does and should matter, and according religious freedom and individual conscience appropriate respect does not require us to act as if religious commitments lack content -- as if they are, in Stephen Carter's words, mere "hobbies" -- and have no implications for believers’ actions and policies.  They do, and they should.  And what exactly these implications are is something that, it seems to me, believers and non-believers alike should think hard -- and fairly and honestly -- about.

Posted by Rick Garnett on January 4, 2007 at 08:35 PM in Religion | Permalink | Comments (4) | TrackBack

Sunday, November 19, 2006

Finnis on "Religion and State"

Anyone interested in law-and-religion or church-state work will probably want to check out this new paper, "Religion and State:  Some Main Issues and Sources," by my colleague, John Finnis.  (Thanks to Larry Solum for the link.)  Here is a bit:

Any discussion of religion and state derails from the outset if it presumes that, as Brian Leiter puts it, “religion is contrasted with reason” – a theory for which Leiter, if he felt inclined, might summon as a supporting witness the first definition of “religion” in Webster’s New Universal Unabridged Dictionary (New York 1992). And the discussion equally derails if it presumes that no religion’s claims about God and man, world and society are reasonable, or that no religion’s claims are even discussable within the domain of public reason, that is, of the discourse that one should find in universities, schools, and legislative and other political assemblies, including discourse about what laws and public policies to adopt.  The discussion derails, again, if it presumes that the philosophically neutral, default, baseline or otherwise presumptively appropriate framework or basis for the discussion of religion and state is that no religious claims add anything -- whether content, certitude, or probability -- to what is established in moral or political philosophy, or in natural or social science or social theory.

It derails, too, if it holds or presumes that religion’s status is nothing more than one way of exercising the “right” proclaimed as fundamental and “at the heart of liberty”, in Planned Parenthood v Casey (1992): “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  Or again if, as Ronald Dworkin says, the basis of the First Amendment’s guarantee of religious freedom is simply that “no one can regard himself as a free and equal member of an organized venture that claims authority to decide for him what he thinks self-respect requires him to decide for himself.”  These celebrations of the right to “decide for oneself” and “define one’s own concept” trade, as we shall see, on an important truth.  But they abandon reason when they assert that the relevant intelligible and basic good in issue is not the good of aligning oneself with a transcendent intelligence and will whose activity makes possible one’s own intellect and will, nor even the good of discovering the truth about some meaningful and weighty questions, but rather the good of self-determination or self-respect.  For these are no true goods unless the goods around which one determines oneself deserve the respect due to what is true, rather than self-interested make-believe.

By the way, it seems to me that the paper's opening sections work as -- even if they are not billed explicitly as -- a response to Brian Leiter's recent essay, "Why Tolerate Religion?"

Posted by Rick Garnett on November 19, 2006 at 04:20 PM in Religion | Permalink | Comments (8) | TrackBack

Tuesday, November 07, 2006

The Right Time for an Introduction

So Dan Markel and I are sitting around a table in Falls Village, Connecticut, and I'm telling him how I admire his work, but wonder if my own isn't too esoteric -- after all, while I study and write about the intersection of law and religion, I do so not from the constitutional or civil libertarian perspective,  but from the quasi-Levinsonian perspective of seeing law as religion, as reflecting religious concerns even as it denies them.   I'm interested in how religious debates are reflected and replicated in ostensibly secular legal ones.   I enjoy quoting John Chrysostom, the Midrash, and of course the antinomian heretic Jacob Frank.   And, yes, I have another couple of careers as a writer on contemplative practice and emerging spiritualities.  All that's well and good, but are questions like the drama of sin and expiation -- and how it's reflected in our legal culture -- really ripe for Prawfsblawg?

And then came the Ted Haggard crisis.

I guess we're never as far from the Apostle Paul as we think we are.  The timing was perfect -- I'd just presented a paper at a conference at Cardozo Law School on "Jews in the Legal Profession," making fairly broad claims about how America's Protestant heritage causes many Americans to have deep, ontologically-rooted doubts about the law, even as we trump the "Rule of Law" all the time.  (This is one reason I'm interested in Dan's work - I've never felt his theories are quite frum enough to capture what punishment is really about.)  Our popular culture prizes confession, not process; conscience, not codes.

And here it is in high relief, Haggard finding a middle ground between Jimmy Swaggart's tearful confession and Bill Clinton's "legalistic" semi-denials.  Watching Evangelical figures respond to the Haggard revelations has been, itself, a revelation to me.  Not just for the prurient thrill of watching yet another soft-spoken, somehow pasty leader on the Christian Right (you know the type - Ralph Reed, Rick Santorum, Gary Bauer...) be revealed as what we in the gay community say we "knew all along" him to be -- although sure, that plays a role.  But rather for watching the pull between the drama of sin and forgiveness on the one hand, and contemporary concerns -- political and otherwise -- on the other.  It was interesting, for example, to see how the New Life Church has grown up, juxtaposing Haggard's New Testament confessional with a more Old Testament (and bureaucratic state) set of policies and procedures in cases of misconduct.   I noticed, too, how the whole confession bit left me cold -- but the process working gave me a sense of hope.

There's also an element of sympathy. When Ted Haggard says "There is a part of my life that is so repulsive and dark that I've been warring against it all of my adult life," I know exactly what he means.  I spent a decade in the closet, hating myself, repressing myself, all in the name of the same internal jihad.  But then again, I don't externalize the battle as Haggard does.  Theoretically, Pauline Christianity internalizes, rather than externalizes, the drama of law: Haggard's battle is supposed to take place inside his soul.  But with temporal power necessarily comes the pull of public law -- and so Haggard the self-hating gay man turns into Haggard the gay-hater, perpetuating the policies and social norms that cause kids to hate themselves all over again.  Rather Pharisaic, really, trying to encode in legislation what God is meant to engrave on our hearts -- and hypocritically so, to boot.

Thus religious and legal/political questions are again intermingled.  In addition, as America heads to the polls, one wonders if the marriage of convenience between the Christian Right and the Rational Right might begin to have some adverse consequences for the rationalists.   Paul Horwitz's critique of Wills, a few posts ago, seems right on - but does minimize how the tactics of those Evangelicals "at the table" allow everyone else to sit there too.  For a decade now, the Christian  Right has used gay-bashing as a way to get people to vote Republican, and the Rational Right has sat idly by, happy to remain in power and pursue its policies.  I wonder if, along with Iraq, this harsh reminder that even within the most devout of Protestants can be a "whitewashed tomb" (Matthew 23) might lead to a rethinking of the romance.

So: thanks to Dan for inviting this not-yet-prawf to join the fray.  (More about me can be found on my website and a magazine I edit.)  As some commenters noted, I do have a fairly wide range of interests, legal, literary, religious, and otherwise, which I'm happy to talk about as they come up.  Replying to those commenters while standing on one metaphorical foot, I find the important overarching concern is to keep an integral approach (as in Ken Wilber's use of the term), developing mind, body, heart, and spirit all along their various paths, finding what technologies work where -- since no idea is likely to be 100% wrong, the task is more finding out where it fits into the larger scheme, what it adds, what it misses.  When on retreat, sit and walk. When in the marketplace, sell.  When in the classroom, debate.  It's good to be thinking law with you.

Posted by Jay Michaelson on November 7, 2006 at 07:18 AM in Religion | Permalink | Comments (4) | TrackBack

Monday, November 06, 2006

Law and Religion at Emory

I am just back from a roundtable conference -- the third annual meeting of a five-year project on Christian Jurisprudence -- at Emory's excellent Center for the Study of Law and Religion.  It was a great time, and I learned a lot.

In a nutshell, the project convenes two dozen or so scholars -- lawyers, historians, theologians, philosophers, and political scientists -- from the Orthodox, Protestant, and Catholic Christian traditions for meetings and workshops aimed at, eventually, producting two dozen or so new monographs on "the contributions of modern Catholic, Protestant, and Orthodox figures to fundamental questions of law, politics, and society."  (Emory's John Witte is the ringleader for the project.  He is, of course, a force of nature.)

I enjoyed very much working and talking with the non-lawyers, particularly those from the other religious traditions.  At the same time, I was struck by something, which I have noticed in several other "Law and . . . "-type settings in which the focus is law and things legal:  I seems to me that the lawyers were expected by the non-lawyers to know the non-lawyers' disciplines, arguments, and central texts much better than the non-lawyers were expected to know the lawyers'.  (I do not mean this as a criticism, only as an observation.)  I'm curious . . . does this ring true with anyone else's experiences?  If so, what does it suggest about the value and future of interdisciplinary work?   

In any event, I presented this paper, on the Freedom of the Church, which will -- I hope -- eventually be part of a book about religious freedom and the separation of church and state, properly understood.  It received a helpfully, but quite forcefully, critical response.

Posted by Rick Garnett on November 6, 2006 at 05:32 PM in Religion | Permalink | Comments (3) | TrackBack