Concurring Opinions » Religion

Employment Division v. Smith is Wrong

Gerard Magliocca — Wed, 08 Feb 2012 20:53:18 +0000

I’ve never been a fan of the Court’s holding that a neutral statute of general application is constitutional even if it imposes a significant burden on a religion. There is decent evidence that this was contrary to the original understanding of the Fourteenth Amendment, Michael McConnell wrote a terrific article making the case against the decision when it first came out, and others have offered plenty of criticisms.

Recent events, though, show why Smith rests on a questionable understanding of the First Amendment. When a neutral and generally applicable employment discrimination statute was applied to churches, the Court adopted a “ministerial exception” and distinguished Smith. When HHS adopted a rule about contraceptives and made no exception for Catholic institutions, howls went up that this violates religious freedom. And those howls are right. Now I’ll grant that you could say that this is just a matter for Congress or state legislatures. (In other words, religious freedom could mean more than what the Court says is constitutionally required, though that doesn’t explain the “ministerial exception” case.) But I think that the Catholic organizations upset about the new regulation ought to have a constitutional claim. But they don’t.

Pope Benedict’s Message on Peace, Justice, and Wealth Redistribution

Frank Pasquale — Fri, 23 Dec 2011 20:44:29 +0000

Pope Benedict’s interpretations of Catholic Social Thought have been consistently inspiring. His recent message on the World Day of Justice and Peace focused on the material foundations of a just and well-ordered society.

“Blessed are the peacemakers, for they shall be called sons of God”, as Jesus says in the Sermon on the Mount (Mt 5:9). Peace for all is the fruit of justice for all, and no one can shirk this essential task of promoting justice, according to one’s particular areas of competence and responsibility. . . .

Peace . . . is not merely a gift to be received: it is also a task to be undertaken. In order to be true peacemakers, we must educate ourselves in compassion, solidarity, working together, fraternity, in being active within the community and concerned to raise awareness about national and international issues and the importance of seeking adequate mechanisms for the redistribution of wealth, the promotion of growth, cooperation for development and conflict resolution.

This position confirms a long line of encyclicals urging the fair distribution of global resources. As Pope Benedict earlier stated in Caritas in Veritate, “Without internal forms of solidarity and mutual trust, the market cannot completely fulfil its proper economic function.”

While Catholic Social Thoughts acknowledges the innovation that capitalism sparks, Caritas in Veritate also judged that “[o]n the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care.” The Vatican has long demanded that the basic needs of all be met. As Leo XIII put it in Rerum Novarum,

Justice . . .demands that the interests of the working classes should be carefully watched over by the administration, so that they who contribute so largely to the advantage of the community may themselves share in the benefits which they create—–that being housed, clothed, and bodily fit, they may find their life less hard and more endurable.

This language insists on the importance of basic human needs as a reflection of a deeply incarnational religion. In contrast with economists’ efforts to fragment reality into more tractable units of analysis, a holistic, synthetic vision drives Catholic Social Thought. The encyclicals articulate a vision of global justice, based on an account of the nature and destiny of humankind as a whole. As Caritas in Veritate puts it:

In an increasingly globalized society, the common good and the effort to obtain it cannot fail to assume the dimensions of the whole human family, that is to say, the community of peoples and nations, in such a way as to shape the earthly city in unity and peace, rendering it to some degree an anticipation and a prefiguration of the undivided city of God.

Traditional economic goals of maximizing efficiency (at the micro-level) and gross domestic product (at the macro-level) do not necessarily create an “earthly city in unity and peace.” Indeed, when the lion’s share of growth is taken by the top 1%, such growth can merely reinforce conditions of exploitation. While contemporary economists resort to complex mathematics to model production and measure aggregate well-being, Catholic Social Thought is concerned with the basic conditions for human dignity and flourishing. Since its inception, it has been willing to challenge economic precepts in order to advance that vision.

Does this create a new conflict between science and religion—the rigor of economics, and the emotion of faith? Not really. As thinkers ranging from Mirowski to McCloskey to Roberts to Klein have demonstrated, the economic crisis has ripped the veil of scientism from the rather pedestrian interest-advocacy embedded in dominant strands of contemporary economic thought. It will fall to thinkers of good will of diverse perspectives to put real human needs back at the center of policymaking.

This task is particularly urgent in the field of financial and monetary systems. The Pontifical Council for Justice and Peace’s document, “Towards Reforming The International Financial And Monetary Systems In The Context Of Global Public Authority,” is a worthy contribution to this emerging dialogue. As the Council states, “The economic and financial crisis which the world is going through calls everyone, individuals and peoples, to examine in depth the principles and the cultural and moral values at the basis of social coexistence.” Here are some of their conclusions:

[T]he crisis has revealed behaviours like selfishness, collective greed and the hoarding of goods on a great scale. No one can be content with seeing man live like “a wolf to his fellow man”, according to the concept expounded by Hobbes. No one can in conscience accept the development of some countries to the detriment of others. If no solutions are found to the various forms of injustice, the negative effects that will follow on the social, political and economic level will be destined to create a climate of growing hostility and even violence, and ultimately undermine the very foundations of democratic institutions, even the ones considered most solid. . . .

On the way to building a more fraternal and just human family and, even before that, a new humanism open to transcendence, Blessed John XXIII’s teaching seems especially timely. In the prophetic Encyclical Pacem in Terris of 1963, he observed that the world was heading towards ever greater unification. He then acknowledged the fact that a correspondence was lacking in the human community between the political organization “on a world level and the objective needs of the universal common good”. He also expressed the hope that one day “a true world political authority” would be created. In view of the unification of the world engendered by the complex phenomenon of globalization, and of the importance of guaranteeing, in addition to other collective goods, the good of a free, stable world economic and financial system at the service of the real economy, today the teaching of Pacem in Terris appears to be even more vital and worthy of urgent implementation.

There are many paths to establishing a “financial system at the service of the real economy.” A Tobin Tax appears to be an obvious first step; David Graeber’s work on debt presents other, more radical approaches (such as jubilees, another concept with religious resonance). Whatever path policymakers take, I hope they pay more attention to the deep wisdom and insight reflected in Catholic Social Thought, and the NGO’s like Global Financial Integrity and the Tax Justice Network that help to put it into action.

Image Credit: Parable of Dives and Lazarus, retold in economic terms here.

Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

Leslie Griffin — Wed, 12 Oct 2011 01:59:09 +0000

JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.

Both the priest’s and the nun’s lawsuits depend on whether they were fired for discriminatory or nondiscriminatory reasons. As Judge Posner has explained, “the question in a discrimination case is not whether the employer’s stated nondiscriminatory ground for the action of which the plaintiff is complaining is correct but whether it is the true ground of the employer’s action rather than being a pretext for a decision based on some other, undisclosed ground. … If it is the true ground and not a pretext, the case is over.”

A similar distinction between what is true and what the individual believes to be true is also a crucial component of First Amendment analysis. Under a long line of Supreme Court cases beginning with Ballard v. United States, courts and juries are free to decide whether an individual’s religious beliefs are sincerely held but not whether they are true. Soldiers are routinely subjected to court analysis of whether their religious beliefs are sincerely held before they receive conscientious objector status. Unemployment compensation benefits may be withheld or granted based on whether an applicant’s religion is sincerely held. Prisoners’ religious beliefs are regularly subjected to sincerity review when they request accommodations of their religious practices. Plaintiffs must hold a sincere religious belief in order to win a religious discrimination lawsuit under Title VII. Legislators are usually subjected to a court determination whether they acted with a secular purpose; the Establishment Clause invalidates their legislation if they acted with a religious purpose or a sham secular purpose.

In the employment discrimination context, it should be appropriate for courts to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge, i.e., whether the priest was fired in retaliation and the nun denied tenure on the basis of gender. Courts should be able to determine the sincerity of the employer’s motivation without intruding upon religious truth. Was it disabilities or religion that motivated the firing? Race or religion? Gender or religion? Age or religion? And so forth.

Justice Antonin Scalia parsed pretexts when he asked the church’s lawyer if a sham is different from a pretext. Scalia asked if the church’s position

would allow the government courts to probe behind the church’s assertion that this person is a minister? You would allow that, right? But once it is determined that the person is a minister, you would not allow the government to decide whether the firing was a pretext?”

The church’s lawyer, Douglas Laycock, said yes to probing the church’s sham assertion that this person is a minister and no to deciding whether the firing was a pretext.

But the question of who is a minister is much more theological than determining whether a firing was pretextual. Perhaps it is the justifications for the ministerial exception that are a sham?

Reviewing The Oral Argument in Hosanna-Tabor (Part Two)

Leslie Griffin — Mon, 10 Oct 2011 20:07:57 +0000

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.

Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”

Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”

The serious problem with Alito’s question and Laycock’s answer is that we do not know the facts of Weishuhn or most cases dismissed under the ministerial exception. Ministerial exception cases are dismissed without trial; the facts are never developed. In Weishuhn the Michigan Court of Appeals spent the bulk of its opinion reviewing the facts of the workplace that determined whether schoolteacher Weishuhn was a minister. Indeed, the Michigan opinions merely record that Weishuhn was fired “[a]fter a series of employment-related incidents, none of which involved the subject of religion.” To find more facts about the case, you have to search other court documents and Michigan news accounts.

Like any plaintiff, Weishuhn could lose her case on the facts. But the ministerial exception doesn’t allow her a day in court to win or lose her lawsuit. It dismisses her lawsuit before it can be litigated.

What is the answer to Justice Alito’s question? Justice Alito should be “rightly concerned about” the numerous retaliation cases similar to Hosanna-Tabor in which ministers alleged they were fired or demoted for registering employment complaints with the EEOC. Or the hostile work environment, sexual harassment and disabilities lawsuits that did not make it to court. Other cases are factually closer to Alito’s question. State and federal courts have relied on the ministerial exception to dismiss cases in which a Catholic school principal lost her job after complaining to church authorities that her priest-supervisor had assaulted and battered her; a minister reported his bishops’ conversion of church funds and failure to pay income taxes to state authorities; two church staff members consulted with an attorney about their employer’s possible violations of sex discrimination laws; a university chaplain complained about her school’s sexual harassment policy; another university chaplain reported student complaints of faculty sexual harassment to administrators; and a minister told church authorities that her stepfather, a fellow minister, had sexually abused her as a child.

In each case we do not know who would win or lose. What we do know is that the ministerial exception kept the plaintiffs from having their day in court, or as Justice Kennedy said soon after Laycock answered Alito’s question, “you’re asking for an exemption so these issues can’t even be tried.”

That is how the ministerial exception has worked since its inception.

__________________________________________

Leslie Griffin holds the Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center and is author of Law and Religion: Cases and Materials (Foundation 2d ed. 2010).

Reviewing the Oral Argument in Hosanna-Tabor (Part One)

Leslie Griffin — Sun, 09 Oct 2011 12:18:21 +0000

Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?

The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.

Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, “doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?” That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?

Justice Sotomayor was concerned about “a church whose religious beliefs centered around sexually exploiting women and children,” which Laycock did not defend. But how can courts determine which laws must be obeyed and which may be flouted? In the past, lower courts have held that Baptist churches’ religious, Scripture-based belief that men are heads of households and therefore entitled to higher pay than women did not allow them to violate the equal pay laws; that the Shiloh True Light Church of Christ’s religious belief in children’s vocational training did not permit it to violate the child labor laws; and that the Quaker tradition of hospitality to the stranger did not allow Quakers to ignore the alien worker requirements of the immigration laws. Those cases focused on how strong the government’s interest was in enforcing the laws. The courts concluded that the government’s interest in enforcing the equal pay, child labor and immigration laws was strong enough to overcome important religious beliefs.

In Hosanna-Tabor, Assistant Solicitor General Leondra Kruger tried valiantly to focus the Court’s attention on the government’s strong interest in enforcing the antiretaliation laws. She explained that the Court would have to apply a balancing test between the government’s interest and the Lutheran Church’s religious beliefs in order to determine whether Hosanna-Tabor should be required to obey the antidiscrimination laws.

Several justices immediately and repeatedly challenged that argument, insisting that Kruger’s position favored Catholic theology over Lutheranism. No one, including Kruger, argues that the Roman Catholic Church can be forced to ordain women. Once Kruger conceded that point, some justices could not be distracted from the potential Lutheran v. Catholic battle that would erupt without a broad ministerial exception:

JUSTICE ALITO: … are you not implicitly making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts? I don’t see any distinction between — I can’t reconcile your position on those two issues without coming to the conclusion that you think that the Catholic doctrine is older, stronger and entitled to more respect than the Lutheran doctrine.

CHIEF JUSTICE ROBERTS: You’re making — you’re making a judgment about how important a particular religious belief is to a church. You’re saying — this may just be the same question Justice Alito asked — but you’re saying: We don’t believe the Lutheran Church when it says that this is an important and central tenet of our faith.

On the other hand, the — the belief of the Catholic Church that priests should be male only, you do defer to that, even if the Lutherans say, look, our dispute resolution belief is just as important to a Lutheran as the all-male clergy is to a Catholic.

JUSTICE SCALIA: I think that’s saying nothing different than what the Chief Justice suggests, that you think the one is more — is more important to — to Catholics than the other is to Lutherans.

Although Justice Breyer understood that Kruger was focused on the strength of the government’s interest and not on the nuances of Lutheran and Catholic theology, he was self-describedly “stuck” because he couldn’t figure out why “going to court is a more fundamental interest than a woman obtaining the job she wants.” Breyer had a point; Kruger’s position that the government’s interest in antiretaliation law is stronger than its interest in antidiscrimination law is not evidently based in constitutional or statutory law. All she could say is that “the contours of the First Amendment doctrine at issue here will depend on a balancing of interests.”

That balancing is the whole problem with the ministerial exception. It leaves courts choosing which religions are acceptable and unacceptable based on vague balancing tests. The Baptists, the Shiloh True Light Church of Christ, the Quakers and (potentially) the Lutherans should be angry if their beliefs are subordinated to the government’s interests while Catholic beliefs prevail.

Petitioner Hosanna-Tabor would solve this problem by exempting religions from all the laws whenever religions assert ministerial performance is involved. Justice Scalia’s questions suggested the Establishment Clause requires that outcome. That solution is exactly backwards. The starting point should be a rule that requires religions to obey the law. The Establishment Clause should be violated by a rule that lets courts determine which theologies override government interests and which do not.

The Court should be wary of issuing an opinion holding that religions are free to disobey the law.

____________________________________________

Leslie Griffin holds the Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center and is author of Law and Religion: Cases and Materials (Foundation Press 2d ed. 2010).

Does Satan Deserve a Lawyer?

Gerard Magliocca — Mon, 19 Sep 2011 22:31:23 +0000

In 1587, the Catholic Church established the office of Promoter of the Faith, which was commonly known as the Devil’s Advocate. This position was occupied by a canon lawyer who was charged with presenting the case against a candidate for sainthood. (The case for sainthood was presented by the Promoter of the Cause, or God’s Advocate.)

In 1983, Pope John Paul II changed the canonization process from adversarial to inquisitorial. The job of Devil’s Advocate was abolished and a new official called the Promoter of Justice was created to investigate and decide on holiness claims. As one might expect, this procedural reform led to a sharp increase in the number of saints. (About 500 during John Paul II’s reign as opposed to about 100 in the previous eighty years.)

My conclusion: Satan is an underserved client. I leave it to legal ethicists to determine whether he is entitled to pro bono assistance.

Critical Jewish Studies?

David Schraub — Fri, 12 Aug 2011 04:30:19 +0000

The first two areas I could say I had an actual scholarly interest in were Church/State law and Critical Race Theory. This wasn’t an accident — I got interest in CRT because the method of analysis it used really spoke to me as a Jew. It seemed to do a better job of capturing the various problems and barriers faced by members of marginalized groups beyond the standard, thin liberal story.

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a “Critical Jewish Theory”. And I came up with … virtually nothing. With one very notable exception — Stephen Feldman at the University of Wyoming (I know, I know: Jewish studies in Wyoming — could it get any more cliched?) — it was a virtual dead-end. Even Professor Feldman’s work, which I admire and has influenced me greatly, focuses primarily on the American Church/State context. An important topic, to be sure, but hardly the only one which intersects with Jewish lives and areas of concern (international law, in particular, seems like a gimme).

This absence struck me as very strange. In general, the CRT movement has been pretty good about extending itself to a variety of different identities. Though the original works focused primarily on African-Americans (and really, African-American men), we now have Critical Race Feminism, LatCrit, Asian-American themed CRT, Queer Studies, and a host of others. The lack of an analogous school of discourse applied to the Jewish experience is not a function of disciplinary narrowness.

So what gives? I have some thoughts, but I don’t find any of them particularly satisfactory. The cheap answer is that CRT is a “left” movement and contemporary anti-Semitism is primarily a leftist project. I reject that for two reasons: first, because I don’t think right-wing anti-Semitism is as dormant as conservatives like to claim, and second, because the various crit movements have never really shied away from “friendly fire”. There have been some particular points of tension between CRT writers and the Jewish community — Mari Matsuda’s famous hate speech article in the Michigan Law Review strongly considered the possibility of labeling Zionism “hate speech”, one of Daniel Farber & Suzanna Sherry’s critiques of CRT was entitled Is the Radical Critique of Merit Anti-Semitic? (83 Calif. L. Rev. 853 (1995)) — but nothing severe enough to force a permanent fissure.

Possibly the best answer I have relies on the particular form in which anti-Semitism is often instantiated in the modern world. Most other -isms are predicated on inferiorizing their targets. This can be done contemptuously (as often is the case in racism), or clothed as paternalism (as often is sexism). Modern anti-Semitism, by contrast, does not treat Jews as incompetent or inferior at all. Much the opposite — it views them as hyper-powerful; a conspiratorial, parochial sect whose tentacles control the government, the media, and the banks, but whose loyalty lies only with themselves. There’s often a grudging respect to it, but the respect one gives to a particularly dangerous villain. It’s easy to see these tropes popping up again and again in “anti-Zionist” discourse worldwide, where accusations of dual loyalty are very much part of the discussion and standard Jewish interest-group lobbying is seen as uniquely nefarious and abusive. Still, the crits, focused on groups whose problem is that they don’t have enough voice or sway, are ill-equipped to talk about a group whose “problem” is that they are seen in the popular eye as being too influential. Couple this with the fact that Jews, as a group, are relatively well-off (though this flattens distinctions within Jewish subgroups) and it can be hard to see them as suffering from an “oppression” worth analyzing.

But obviously, economic wherewithal is not the alpha and omega of CRT-style analysis (after all, a considerable portion of the movement’s energy is dedicated to refuting the idea that “it’s not race, it’s class!”). And Jewish history in particular is replete with instances of Jews being placed in the role of the “buffer”, given a fair amount of influence but designed to be the targets of popular resentment. Simply taking at face value that Jews have it all and that prejudice against them has been relegated to sporadic acts of rabid hate by Klansmen is precisely the sort of quiescence that Crits tend to rebel against.

Indeed, the fact that the mechanics of anti-Semitism in particular are not adequately captured by contemporary stories of oppression is all the more reason why it desperately needs analysis akin to what CRT has provided in the context of race. And I do believe a similar approach has a lot to offer in the Jewish context. The allegedly pervasive presence of the “race card” is the old nemesis of anti-racist workers everywhere, but of late the “anti-Semitism card” has been an increasingly prominent method of dismissing claims by Jews of unfair treatment. The myth of the “Judeo-Christian” tradition (which, as a political trope, is invariably 100% Christian) acts to sublimate an independent Jewish political voice — while there are many Jews in politics, there are very few who speak “as Jews”, particularly when doing so would seriously challenge dominant conceptions of the Jewish role or place. It is highly notable, in my view, that “Judeo-Christian morality” is seen as a deeply conservative normative commitment, despite Jews being among the most socially liberal denominations in America today. That Christians politicians have appropriated Jewish experience in ways foreign to the actual Jewish political and theological tradition is an example of the boundaries on the “love” they have for us; that Jews have been unable to effectively resist is an example of our marked political limitations. And while Israel certainly has its fair share of sins, the massively disproportionate vitriol and condemnation directed its way (indeed, directed to the very concept of it existing) by international legal actors clearly implicates anti-Semitic norms (and the fact that I, an early supporter of J Street and a strong critic of the Netanyahu administration, feel compelled to verify that “yes, I can tolerate criticisms of Israel without labeling them anti-Semitic” is itself symptomatic of a discourse gone badly awry).

It’s not the case that nobody has done any writing on these topics. In addition to Feldman, Albert Memmi’s The Liberation of the Jew would have to be considered a foundational text in any “CJT” movement, and David Hirsh has recently written a stellar paper entitled Anti-Zionism and Antisemitism: Cosmopolitan Reflections (Hirsh also writes often for the Engage blog, which is essential reading for anyone interested in this subject). But there’s a lot more to be done, and I still find it odd that the disciplinary gap has persisted for this long.

Constitutional Protestantism or Constitutional Televangelism

Joey Fishkin — Wed, 03 Aug 2011 01:21:10 +0000

I appreciate Doug taking up questions from my earlier post and I think he’s right about the central role elites play in interpreting constitutional texts.

I think this is yet another area where Jack’s analogy (or really, Sandy Levinson’s analogy, which Jack credits generously) between constitutional faith and religious faith, between the Bible and the Constitution, is highly instructive. The Protestant idea that we all can read and interpret the Word for ourselves is just that—an idea. It is an important idea for reasons I’ll say something about in a second, but it’s somewhat aspirational. One can, and some people do, believe in the authority or even the inerrancy of the Bible without reading it much (or at all). It is also possible to read it without understanding it very well. Most people today report that they find Biblical text hard to understand (although the irony is not lost on me that the survey I just linked to saying so was conducted by the Vatican).

Luckily, if you have a hard time reading or understanding your Bible or your Constitution, help is on the way! Many experts and leaders—elites, as Doug says—stand ready to help by offering interpretations, often complete with textual citations, that ordinary people can understand (and there is no need for most people to actually go look up the citations). Very often these authorities offer their interpretations in a manner that is charismatic, memorable, and convincing. Their interpretations are all the more convincing when they happen to square with one’s own pre-existing beliefs about what the Bible or Constitution ought to say or mean.

So does all this mean the Protestant idea has no practical effect? Quite the contrary. The Protestant idea has an extremely important effect. The normative premise that we all are able to read and interpret the text for ourselves means that we do not have to trust the priests in the temple; we do not have to trust the Justices who emerge from behind the curtain of the Court. We get to decide for ourselves who to trust, whose interpretive authority to respect. This is, as Jack says, a great theology for dissent. We can decide we agree with people who say that on a particular question, all nine Justices got it wrong.

This is why Jack’s conception of constitutional Protestantism is linked in a such a deep way with his account of the role social movements play in constitutional change. But in my view, the mechanism by which constitutional Protestantism empowers social movements to make constitutional changes has little to do with ordinary people literally reading the constitutional text and coming up with their own interpretations of its meaning.

Jack notes that people generally cannot name Supreme Court decisions (245); he contrasts the case law, the work of “We the Judges,” with the text that belongs to We the People. I am somewhat skeptical of the strength of this contrast. I doubt most people would do much better naming important Amendments or clauses of constitutional text than they would do identifying important cases. And yet I still think there is something to what Jack says, that the very fact that the Constitution is an open, public text “authorizes people from all walks of life to claim the right to interpret it.” (237) I’d put the emphasis on “right.” Most people do not actually do this interpretive work for themselves, literally reading the words and trying to determine their meaning. And they need not. In our pluralistic, Protestant polity, many different interpretive views are being articulated all the time, not only in editorials and blogs but also at political rallies, in sermons, on TV, on the radio. All we have to do is listen and decide who is right.

But how do we decide that?

In part, we decide whose answers we like best. That’s not all, of course. We also decide whose ways of speaking and reasoning about the Constitution appeal to us. And here I think the analogy between religion and law, between the Bible and the Constitution, is more than an analogy. Anecdotal evidence strongly suggests, and I would be very surprised if it were not the case, that people who interpret their Bible as literally true and inerrant are also likely to prefer discourses about the Constitution that emphasize its unchanging character, reverence for its origins, its authority over us, and the limits of our role as interpreters. On the other hand, I strongly suspect that people who view their Bible as a source of meaning to be re-interpreted with new glosses and layers of commentary in each generation are likelier to be comfortable with theories about the Constitution that do the same. But all that said, I really doubt that most people choose which elite interpreters of the Constitution sound the most correct and plausible to them primarily on the basis of interpretive methodology. It has to be mostly about substance—not necessarily results in particular cases, but which substantive visions, which constitutional narratives, each of us finds more compelling. It probably also has quite a bit to do with the the speaker’s affiliations—specifically, whether the speaker is connected to a group, a social movement, a political party we respect or identify with.

And that is where I think Jack’s theory (with Sandy Levinson) of partisan entrenchment, and the connected idea of a link between what Jack elsewhere calls “high politics” and “low politics,” comes into play. Constitutional questions are not simply political questions. But neither are they extricable from politics. Our jurisprudential views are never fully separable from our political and moral views, any more than our theological views can be completely separated from our moral views. (In one of the most striking sections of Constitutional Redemption, Jack cautions readers not to let our jurisprudential views reshape our moral views and constrain our moral imaginations, but instead to retain a sense of morality independent of our sense of what the Constitution requires.) If constitutional debates are a special kind of politics (“high politics”), our decisions about which elites to trust, and who to credential as an authority to speak about the Constitution, are political decisions of a special kind. We make constitutional changes in part by voting elites with particular constitutional views into high office (especially the office of President, who appoints Supreme Court justices), but also by providing popular support that enhances the stature of other elites who may never hold any public office. On this picture of things, We the People may not be in the driver’s seat of constitutional interpretation, but constitutional Protestantism gives us power to decide to whom we hand the keys.

If this positive account is right, there are a number of real problems with this state of affairs. Most obviously, all of the distortions of normal politics will tend to flow into, and shape, constitutional politics as well. Any entity with substantial political power, whether or not that power is democratically legitimate, also has significant power over the trajectory of our constitutional law.

In the end, to return to the topic of my earlier post, I am not sure that the democratic character of this kind of constitutionalism is compatible with a constitutionalism that maintains a close tie to text. Elites who go to law school can be socialized into a world where particular bits of text matter. But for most people, it’s hard to see how that could occur. We do not have Vacation Constitution Schools in which we have children memorize passages of Constitutional text, nor do we have Constitution Mitzvahs in which we showcase our young teenagers’ newfound and perhaps fleeting ability to read and explain a passage in the original 1787 language… and really, thank goodness. Instead we have something much simpler: a system in which people, very few of whom have probably ever read most of the text of the Constitution, listen for authorities who talk about the Constitution in a way that speaks to them. We listen for authorities who speak in a way that makes sense to us in terms of the rest of the nomos we inhabit. Jack’s own narrative of constitutional redemption, like Martin Luther King Jr.’s great narrative of the Declaration as a promissory note, speaks to us not because it’s such a close exegesis of the Declaration’s text, but because it’s a compelling narrative that resonates with deep American themes of progress and renewal. It speaks to us. Maybe that is enough?

A Bill To Ban Kosher Slaughtering Practices

Dave Hoffman — Wed, 29 Jun 2011 00:01:33 +0000

The Netherlands is poised to vote to require animals to be stunned before they are killed, which would prohibit the sale of meat by Muslim and Jewish butchers who follow traditional slaughtering practices. Muslim and Jewish leaders have wrung an amendment from the bill’s sponsors that would permit a five year grace period if the butcher can show that the “religious … method of slaughter causes no more pain than industrial slaughtering.” The Netherlands would join a handful of other countries which prohibit the ritual slaughter of animals.

Matt Yglesias, whose blogging brought this to my attention, thinks that although “our political culture is hardly unaffected by bigotry or oft-violent nationalism, I’m pretty confident this would never fly here.” I agree – at a national level – but am not so sure at a local or regional level. As excitement about the destined-to-be-defeated circumcision ban in San Francisco illustrated, astute commentators think that the courts might not distinguish jewish or muslim claims for religious “exceptions” from generally applicable rules from previous precedents that ruled on the rights of Native Americans and Amish citizens. (This strikes me as inaccurate – though, of course, it’s what would happen if Judges didn’t permit their biases influence their perceptions of risks and facts.) Moreover, mainstream acceptance of foreign religious or cultural practices is (forgive the pun) skin deep – as illustrated by this disturbing comment thread at Prawfsblawg.

Yglesias is right that there’s zero likelihood of federal action motivated by vegan interest groups. That said, I can imagine some crunchy and “progressive” American town passing an ordinance exactly like this one, and thereby prohibiting Halal or Kosher butchers from operating within the city’s limits. (Call it the Portland-Stunning-Mandate.) Would the PSM pass constitutional review or RFRA? Dorf’s analysis of the circumcision ban, here, suggests that the answer is “probably not.” But maybe the analysis is different, as practicing jews and muslims don’t need to be carnivores.

(For more on kosher slaughter & whether it produces more suffering than ordinary slaughter, read Dorf. Actually, you should probably do that even if you don’t much care about this topic. It’s like reading Volokh, only without the turing tests.)

The Ministerial Exception Part III

Caroline Mala Corbin — Tue, 12 Apr 2011 20:53:18 +0000

In my previous blogs, I explained the basics of this judicially-created doctrine, and argued that the ministerial exception can’t really be justified by either the Free Exercise or the Establishment Clause. The main Establishment Clause justification for the ministerial exception is the fear that in adjudicating discrimination claims, courts will become entangled with theological questions or endorse one religious vision over another. In this last post, I want to argue that application of the ministerial exception can entangle a court in religious doctrine more than application of anti-discrimination law.

For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: is a teacher at a religious school who mostly teaches secular subjects but also leads students in prayer and teaches a religion class a ministerial employee? Courts do not simply defer to a religious organization’s characterization of a position, as it could insist that all its employees were ministers. Instead, courts have taken a functional approach, looking at the main duties of the employee, and essentially asking whether plaintiff’s job “is important to the spiritual and pastoral mission of the church.”

In order to decide whether a position is “important to the spiritual and pastoral mission of the church,” however, a court might have to delve into the religious beliefs of a particular religion. In ruling that a church’s music director was a minister, for example, the Fourth Circuit analyzed the religious significance of music. The plaintiff argued that she was not a ministerial employee because she merely taught people to sing and perform music. The court disagreed, noting that “music serves a unique function in worship” and concluding that the music director’s job was “an integral part of Catholic worship and belief.” In reaching this determination, the court did exactly what the Establishment Clause forbids: choose between competing religious visions. In the plaintiff’s vision of the Roman Catholic faith, music’s significance did not rise to the level of ministry, such that teaching it made her a minister. In the defendant’s vision, it did. The court essentially resolved a religious dispute about the role of music. Hosanna-Tabor potentially presents a similar risk. In determining whether Perich is a minister or not, the Supreme Court may end up resolving a religious dispute about the role of school teachers in Evangelical Lutheran Church schools.

In contrast, application of anti-discrimination laws like the ADA never requires that kind of direct grappling with religious doctrine or beliefs. Indeed, anti-discrimination cases may present no religious issues at all. To the extent they might, courts need not resolve theological disputes such as what role music or schoolteachers play in the church. Instead, they would be deciding whether a legitimate religious reason or an illegitimate secular reason (discrimination) motivated an employment decision. For example, imagine a church fires a teacher who has an extramarital affair, arguing that she violated the church’s proscription against sex outside marriage. In a sex discrimination case, the issue of whether sex discrimination has occurred depends on whether the school applies the religious policy equally to male and female teachers. The court will not have to resolve any doctrinal dispute or otherwise evaluate the religious merit of the proffered reason: no one questions the school’s religious belief that sex outside of marriage is forbidden. The court need not evaluate the plaintiff’s spirituality because no one disputes she engaged in forbidden conduct. The only question to be decided falls well within the court’s competence: determining whether the plaintiff’s evidence establishes that men and women were treated the same on this issue. In other words, the court judges the credibility of a religious reason, rather than whether something is religiously true. Judging the credibility of a proffered reason is within the court’s role and expertise. Resolving religious questions is not.

Ministerial Exception Part II

Caroline Mala Corbin — Wed, 06 Apr 2011 22:02:19 +0000

In my previous blog on the ministerial exception, I explained the basics of this judicially-created exception. In this blog, I take a more partisan view, and argue that the religion clauses do not justify the ministerial exception. To the extent that church-clergy relations are protected, they should be protected under the freedom of association guaranteed by the Free Speech Clause.

Does the Free Exercise Clause require the ministerial exception?

The simple answer is: not after Employment Division v. Smith. Employment Division v. Smith held that as long as a law is neutral and generally applicable, it does not violate the Free Exercise Clause even if it imposes a substantial burden on religion. Smith itself upheld a law that made illegal a religious sacrament. Since few would dispute that anti-discrimination laws such as the Americans with Disabilities Act are both neutral and generally applicable, Smith should defeat any free exercise justification.

Nonetheless, lower courts have uniformly argued that Smith only applies to individual free exercise claims and not institutional free exercise claims. The arguments for this distinction are not persuasive, and they can be understood as the lower courts’ attempt to limit the impact of the unpopular Smith decision. For example, courts cite to a line of Supreme Court cases addressing church property disputes as precedent for church autonomy. Yet they overlook the Supreme Court’s most recent church property case, Jones v. Wolf, which actually applies a “neutral principles of law” approach more in line with Smith than the older cases that deferred to church hierarchies.

Doesn’t the potential entanglement with religion mean the Establishment Clause requires the ministerial exception?

The Establishment Clause may be violated if a court were to independently evaluate a minister’s spiritual or theological qualifications. For example, the court would act beyond its competence if it were to hold that a church was wrong to fire a choir director for her choice of music because the music chosen was in fact perfectly suitable for Sunday services. However, it is a mistake to assume that resolving anti-discrimination cases will lead courts to substitute their judgment for that of the religious institution on spiritual and theological matters. To start, many discrimination suits do not present any religious questions. In addition, this fear overlooks a substantial body of anti-discrimination law that ensures that courts assess only matters well within their competence. In other words, when evaluating a claim that a professor was wrongfully denied tenure, courts will consider objective data, but they will not second-guess the employer about subjective professional qualifications.

Take the retaliation claim at issue in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In terminating Cheryl Perich, Hosanna-Tabor cited issues related to her health and its disability leave policy. No mention was made of any spiritual shortcomings. Therefore, as the Sixth Circuit concluded: “a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”

Are churches never immune from anti-discrimination suits?

Even though the religion clauses may not justify the ministerial exception, the freedom of association might shield religious organizations from some anti-discrimination claims brought by ministers. Proponents of the ministerial exception argue that religious organizations must be able to freely select their ministers and religious leaders. The freedom of association protects that choice: especially after Boy Scouts of American v. Dale, the freedom of association protects the right of all associations, religious and nonreligious, to choose leaders who will properly represent and convey the association’s message, even if it means violating anti-discrimination law. In Dale, the Supreme Court allowed the Boy Scouts to discriminate on the basis of sexual orientation on the grounds that gay Scoutmasters would undermine the Boy Scouts’ anti-homosexuality message.

At the same time, Dale makes clear that an association seeking immunity from a discrimination claim must have a message that would in some way be impaired by compliance with that anti-discrimination law. Thus, a church may assert immunity from a minister’s discrimination suit only if it first argues that its religious tenets require that discrimination. Religious organizations whose beliefs are consistent with anti-discrimination law cannot complain that compliance interferes with their expression. Unless Tabor-Hosanna argues that a disabled minister will undermine its religious message, Perich should be able to sue the religious school for violating the American with Disabilities Act.

Corbin on The Ministerial Exception, Part I

Danielle Citron — Wed, 30 Mar 2011 21:49:48 +0000

Professor Caroline Mala Corbin has kindly agreed to shed light on the ministerial exception raised by an upcoming Supreme Court case. She brings significant expertise to the issue: see her excellent Fordham Law Review article Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law. Her insights will appear in three parts; the first appears below. Our readers know Professor Corbin from her enlightening guest visit, and we are grateful to her for sharing her thoughts with us.

Earlier this week, the Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case involving the ministerial exception (also known as the ministerial exemption). In this blog, I thought I would answer some basic questions about the ministerial exemption. In later blogs, I want to suggest that the religion clauses don’t really justify it, and that furthermore, application of the ministerial exception can cause more Establishment Clause problems than resolution of a discrimination claim.

What is the ministerial exception?

The ministerial exception is a judicially-created doctrine that grants religious employers immunity from discrimination claims brought by their ministers. While anti-discrimination laws like Title VII and the Americans with Disabilities Act allow religious employers to discriminate on the basis of religion in employment decisions, these statutes make it illegal for religious employers to discriminate on the basis of race, sex (Title VII), or disability (ADA). In other words, under these statutes, a Lutheran school may refuse to hire someone because she is not Lutheran, but it cannot refuse to hire her because of her disability.

Lower courts, however, have held that it would violate the religion clauses to allow ministers to sue their religious employers, and therefore created the “ministerial exception” to antidiscrimination laws. Notably, the ministerial exception applies regardless of whether or not the alleged discrimination was religiously motivated. As a result, a minister cannot sue for race, sex, or disability discrimination even if her employers’ own religious tenets forbid discrimination on these grounds.

When does it apply?

The ministerial exception does not preclude all employees of religious organizations from bring employment discrimination claims, only employees who are considered “ministers.” “Ministers” are not limited to ordained clergy. Instead, the courts have taken a functional approach to determining who counts as a minister. If an employee’s “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered clergy.” Under this test, courts have found that school principals, schoolteachers, music teachers, choir directors and press secretaries, among others, are ministers.

The plaintiff in Hosanna-Tabor Evangelical Church and School v. EEOC was a teacher at a religious school who brought an ADA retaliation claim. At issue in the case is whether she should be considered a minister or not. While she spent most of her day teaching secular subjects, including math, language arts, social studies, science, gym, art, and music, she also taught a religious class and led her class in daily prayers.

What justifies the ministerial exception?

Courts have variously identified the Free Exercise Clause, the Establishment Clause, church autonomy or the religion clauses together as necessitating the ministerial exception. In deciding EEOC v. Hosanna-Tabor Evangelical Church and School, for example, the Sixth Circuit wrote that “the ministerial exception is rooted in the First Amendment’s guarantees of religious freedom.”

When the ministerial exception was first articulated, the Free Exercise Clause prohibited any substantial burdens on religious practices unless strict scrutiny was satisfied. As a result, Title VII’s ban on sex discrimination, which would outlaw a church’s practice of limiting its clergy to men, might well have violated the Free Exercise Clause, assuming the burden of having women clergy was substantial, and the state interest in eliminating discrimination was not compelling enough and tailored narrowly enough to justify this burden.

This argument is not actually the major Free Exercise Clause argument espoused in favor of the ministerial exception. (Almost no plaintiffs challenge religiously-required discrimination.) Instead, courts have relied on the notion of “church autonomy.” The idea is that the government should not intrude on internal church matters. In particular, the government should not interfere with the church-clergy relations. Ministers—“the lifeblood” of the church—represent and speak for the church. Consequently, the selection of spiritual leaders is a crucial internal decision, and one secular courts are not competent to make.

While often framed as a Free Exercise right, these church autonomy concerns might be more comfortably housed under the Establishment Clause. The Establishment Clause forbids the government from resolving theological disputes or endorsing one religious vision over another. In theory, adjudicating discrimination claims risk exactly this type of entanglement with religion if the court evaluates a ministerial employee’s spiritual qualifications or determines whether the ministerial employee sufficiently embodies the church and its teachings—a decision only the church is competent to make. Consequently, it could be argued that the ministerial exception is necessary to avoid Establishment Clause violations.

In fact, as I will argue in my next post, neither the Free Exercise Clause nor the Establishment Clause actually mandates the ministerial exception.

Employment Division v. Smith

Gerard Magliocca — Mon, 07 Mar 2011 14:37:59 +0000

There was a story yesterday about an effort to put a proposition on the San Francisco ballot that would ban male circumcision of children. Advocates of the ordinance consider the practice a form of child abuse. Jewish groups, naturally, are opposed.

If such an ordinance were approved, it seems clear that it would be constitutional under the Supreme Court’s analysis in Employment Div. v. Smith. Smith held that “the right to free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” In other words, the fact that the circumcision of infant boys is central to the Jewish faith does not create a constitutional privilege from a local ordinance banning the practice (unless you could show that the law was intended as an attack on Jews).

I think that Smith was wrongly decided. The reason it has stood for as long as it has is that only unpopular religions have been impacted by the case. A neutral law that hurts a more popular faith (e.g., a total alcohol ban in a town that made holding Catholic Mass impossible) such as the proposed SF ordinance would, I think, lead to a swift about-face by the Court.

My book on Jacksonian Democracy discusses Smith because “disparate impact” and religion was raised during the Cherokee Removal crisis, though the Court was evidently unaware of this precedent when it decided Smith. Georgia passed a statute that required all whites who wanted to enter the tribal area within the state to swear a loyalty oath to the State. The Protestant missionaries who wanted to work with the Tribe refused and some were prosecuted and sent to jail. Their supporters claimed that the Georgia law violated the freedom of religion (not as a federal constitutional matter, but in general). The Georgia legislature issued a report that essentially advanced the Smith rationale:

“The law which has excited so much feeling among our brethren of the eastern states is not partial or exclusive in its operation. . . . Our law in this, as well as other cases, aims at no individuals, and recognizes no exemptions. Your committee therefore declare that no objection can be urged against the State, with any propriety, upon the score of its inequality, for the State made all men ‘equal under the law.’”

Overall, the debate about the imprisonment of the missionaries tends to undermine Smith, but I can’t do justice to that in a post.

Book Review: Hirschl’s Constitutional Theocracy

Anna Su — Mon, 06 Dec 2010 20:51:52 +0000

Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010), pp.249, $45.00

Religion-state relations have always been a staple topic in comparative constitutional law scholarship. This is, however, the first work that takes a broad and comprehensive overview of a not-so-new but largely ignored landscape which Ran Hirschl calls “constitutional theocracy.” This term describes and at the same time, zeroes in on the basic issue that form part of every dilemma with regard to the proper relationship between religion and state. How does one reconcile divine and man-made law?

In this counterintuitive, rich and fascinating book, Hirschl identifies the prevalence of a new form of political phenomenon called a constitutional theocracy which he situates at the intersection between a pure theocracy and a liberal constitutional democracy. According to him, constitutional theocracy has four elements: first, it adheres to elements of modern constitutionalism including judicial review, second, there is usually an established state religion, third, the religion and its corresponding texts are considered sources of state legislation, and lastly, parallel religious tribunals exist alongside the civil adjudication system.

The conventional understanding is that we should view this development with caution. Hirschl identifies that view with local secular elites who see religion with disdain, both for its seeming irrationality and its propensity for unpredictability. Paradoxically, the solution that secular elites came up with is to embrace this development. To constitutionally incorporate religious symbols and directives is ultimately the most prudent and rational response to the pressures brought about by the rise of political religion. For one, it facilitates the deployment of various means of political control, such as delegation and cooptation. To get from one to the other, Hirschl’s previous work on the origins and consequences of new constitutionalism offers a clue.

In Towards Juristocracy, Hirschl advanced the hegemonic preservation thesis in which threatened political elites who seek to preserve or enhance their hegemony empowered the judiciary to decide even highly political matters in order to insulate policy-making processes from the vicissitudes of democratic politics. One can see similar themes at play in his new book, particularly the divide between secular elites and the religious masses, and the peculiar role of constitutional courts in managing political hot potatoes, which, in this setting, refers to religion.

Religion, however, is a special kind of political hot potato. For one, it goes right at the heart of the collective existential narrative. There cannot be a single formula then on how to contain it without taking into account the historical and political accidents that are peculiar to particular societies. No matter what form that formula may take however, the result is that bringing religion within the constitutional ambit achieves the twin goals of appealing to popular pressures but at the same time keeping those pressures in check by ensuring state involvement in its interpretation, and consequently, bringing it under state control and supervision.

Drawing from a broad array of interdisciplinary sources, Hirschl deftly surveys a wide-ranging trend on containing the radical possibilities of a constitutionally-enshrined religion. The case studies in this book are divided largely between two camps: the first focuses on how constitutional courts contain religious law in the largely religion-suffused world of Egypt, Kuwait, Pakistan, Malaysia, Nigeria, Israel and Turkey while the second focuses on how courts function as secularizing agents in the pluralistic liberal societies of Western Europe, Latin America, South Africa and Canada. The wealth of detailed and updated information in these chapters alone makes the book worth the read. And if these examples are not enough, Hirschl’s claim also gains currency in what is happening right now in Iraq. As Haider Hamoudi recently observed, the Federal Supreme Court of Iraq has yet to issue any ruling which utilizes the non-repugnancy clause present in Article 2 of the Iraqi Constitution which mandates that laws cannot contradict the tenets of the Sharia. Hamoudi argues that Iraqis appear to have reached a consensus that the judiciary is not the best institution equipped to address questions of whether a law is “Islamic” enough, consigning Article 2 to symbolic oblivion. But this proves Hirschl’s point – Article 2 was included because it had such a broad appeal but the secular elites who are in charge of the Iraqi government at present would rather not resort to it because it does not serve their interests at the moment, and especially because they still have a strong base of power in the legislature.

Another interesting part of the book is the author’s exposition on the parallels between constitutional law and religious law in the last chapter. Enumerating the surprising affinities between the two, Hirschl posits that constitutionalism and religion often fail to get along not because they are different but because they are similar. He injects a realist perspective on these clashes between the two realms, claiming that the divide between secular and religious powers is not motivated by ideological or existential worldviews alone, if even principally, but also by material factors, such as economics and politics. The implication of this is that by broadening the frame of analysis beyond the seemingly insurmountable clash of basic philosophies, bridging the divide does not seem so impossible after all. One can draw on human tools even as one tries to address the challenges posed by divine imperatives.

While this is a very persuasive realist account of comparative constitutional law and politics, one must also wonder about some of its premises, chief of which is that there is such a clear-cut divide between secular elites and religious masses. The Iranian example, not discussed in the book but which has all the elements of a constitutional theocracy, seems to show the opposite. At the very least, the Iranian elite are a mix of religious and secular. Moreover, if this was all power and class, one should also be able to explain how religion gets enshrined in the constitution in the first place. The elites might resort to tools of constitutionalism to keep theocracy in check successfully when it is already established, but his thesis does not explain why they cannot prevent its rise in the first place.

These questions however do not detract from the value of the book. It is very well-researched and offers an original and bold thesis. It should be a must-read for enthusiasts and students not only of comparative constitutional law but also religion and politics in general.

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Anna Su is a currently an SJD candidate at Harvard Law School.

Charismatic Megafauna Take the Fall

Frank Pasquale — Tue, 09 Nov 2010 21:10:36 +0000

Recently American thought on ecology has taken a turn in a religious direction. And it’s not toward that boring old talk about a sustainable creation. Rather, a contender for the House Energy and Commerce Committee chair has “maintain[ed] that we do not have to worry about climate change because God promised in the Bible not to destroy the world again after Noah’s flood.” Glad that’s settled.

But nature does still pose a few threats to us. Reacting to a recent bear attack in Yellowstone, the American Family Association’s Director of Issues Analysis has stated that “there is no number of live grizzlies worth one dead human being. If it’s a choice between grizzlies and humans, the grizzlies have to go. And it’s time.” Sharks, rattlesnakes, scorpions, pit bulls, and even golden retrievers had better watch out!

Perhaps Werner Herzog’s film Grizzly Bear shaped Fischer’s imagination. As Herzog stated in the film:

And what haunts me, is that in all the faces of all the bears that [the protagonist of Grizzly Bear] ever filmed, I discover no kinship, no understanding, no mercy. I see only the overwhelming indifference of nature. To me, there is no such thing as a secret world of the bears. And this blank stare speaks only of a half-bored interest in food. . . . I believe the common character of the universe is not harmony, but chaos, hostility, and murder.”

Perhaps Fischer is just throwing back at the universe its nasty tendency to disregard us.

Photo Credit: Joseph Wu Origami.

The Texas Pledge of Allegiance

Caroline Mala Corbin — Mon, 18 Oct 2010 16:38:11 +0000

A few days ago, the Fifth Circuit Court of Appeals rejected an Establishment Clause challenge to the Texas pledge of allegiance. In 2007, the Texas legislative added the words “under God” to the state’s pledge. In evaluating the Establishment Clause claim, the court relied in part on the endorsement test, which asks whether a reasonable person, aware of the history and context of the challenged practice, would conclude that the government was endorsing religion. The Fifth Circuit held that a reasonable person would “conclude that the pledge remains a patriotic exercise” and that the new version “acknowledges but does not endorse religious belief.” Most courts to decide the issue have agreed with the Fifth Circuit.

I do not. Am I an unreasonable person? Before you answer, consider some feminist critiques of another reasonable person standard – specifically the reasonable person standard in Title VII sexual harassment cases. Early sexual harassment plaintiffs would have their claims dismissed when courts held that a reasonable person would not find that the work environment was hostile or abusive. For example, a court dismissed a claim even though it conceded that the humor in the workplace was “rough-hewn and vulgar” and that sexual jokes and “girlie magazines” were plentiful.

Feminist commentators identified three problems with these early sexual harassment decisions. First, feminists noted that due to societal inequalities that affected men’s and women’s life experiences, men and women have different perceptions of what constitutes harassment. For example, because women are at much more risk of sexual violence than men, sexual conduct that may seem like harmless fun to reasonable men can seem like a threat of violence to reasonable women. Second, feminists pointed out that the courts tended to equate the reasonable man’s reaction with a reasonable person’s reaction, and that this male norm was invisible to the usually male judges applying it. In other words, judges were unaware that they were presenting a subjective male perspective as an objective universal perspective. Third, the failure to recognize use of the unstated male norm perpetuated male privilege and power asymmetries instead of rectifying them – the actual goal of Title VII of the Civil Rights Act.

Each of these critiques applies equally to the Fifth Circuit’s analysis of “under God” in the pledge. First, just as your sex may inform your evaluation of sexual harassment, your religion may matter when evaluating government endorsement of religion. The phrase “under God” may seem perfectly harmless and totally nonsectarian to Jews, Catholics, Protestants, and Greek Orthodox. Such a reading is less likely if you are a Hindu, or a Buddhist, or an atheist, however, and do not worship or believe in God.

Second, the reasonable person in current Establishment Clause analysis is really a person belonging to the Judeo-Christian tradition. Like the unstated male norm in early sexual harassment evaluations, this unstated norm is presented as the universal, objective norm and is often invisible to those applying it. Thus, the Fifth Circuit can concede that a state reference to God “may not reach every belief system” but nonetheless still characterize it as “tolerable attempt at acknowledging religion without favoring a particular sect or belief.”

The third feminist insight — that the failure to recognize the unstated norm perpetuates power asymmetries and privilege — is also true here. Just as tolerance of sexual harassment made it easier to exclude women from the workplace and reinforced their second-class status, the proliferation of state invocations of God makes it easier to exclude religious outsiders from the political and social community and reinforces their second-class status. Yet one of the major goals of the Establishment Clause is supposed to be to protect religious minorities from precisely this result.

For more, please check out my new article: Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. REV. 1545 (2010).

The Twentieth Anniversary of Employment Division v. Smith

Caroline Mala Corbin — Tue, 12 Oct 2010 16:46:58 +0000

I have just returned from an excellent conference at Cardozo on Employment Division v. Smith, decided 20 years ago. In that case, the Supreme Court held that, with a couple of exceptions, religious observers are not entitled to free exercise exemptions from laws that are both neutral and generally applicable. More particularly, even the sacramental use of peyote did not justify a free exercise exemption from the neutral, generally applicable drug laws banning its use. Previously, religious observers were entitled to a free exercise exemption from a law that imposed a substantial burden on their religious practice unless that law passed strict scrutiny.

The conference request was for short provocative arguments. Here’s mine: it would be perfectly constitutional for the government to condition tax breaks for nonprofit organizations on compliance with anti-discrimination law. In particular, it would not violate the free exercise clause to deny tax exempt status to churches or other religious institutions that argue that their religion requires them to discriminate on the basis of race and sex.

A law denying tax exempt status to nonprofits that invidiously discriminate would easily satisfy the Employment Division v. Smith standard. As long as the law did not target religion, as a law denying tax benefits to religious nonprofits might, and as long as it applies to all nonprofits without exception, so that it can be considered generally applicable, it should raise no free exercise problems.

In fact, the federal government already denies tax exempt status to religious organizations that invidiously discriminate on the basis of race. Indeed, even before Employment Division v. Smith was decided the Supreme Court rejected a free exercise challenge to the IRS’s revocation of tax exempt status of two religious schools, one of which banned interracial dating for religious reasons, and one of which refused to admit black students, also for religious reasons. In Bob Jones University v. United States, the Supreme Court held that the IRS regulation passed strict scrutiny. The policy has since been expanded to cover churches as well.

There is no good reason not to expand this policy to religious organizations that invidiously discriminate on the basis of sex. Just as the government does not subsidize religious institutions including churches that discriminate against blacks, nor should it subsidize those that discriminate against women.

This approach – which allows religious institutions to discriminate but denies them tax benefits – strikes a fair balance between religious freedom and equality. It respects religious liberty because it does not ban churches from fulfilling their religious requirements. But it also promotes equality by refusing to subsidize invidious discrimination, and by ensuring the state does not put its imprimatur on the message that is it acceptable to treat anyone as second class because of their race or sex.

Book Review: Barringer-Gordon’s The Spirit of the Law and Eisgruber and Sager’s Religious Freedom and the Constitution

Anna Su — Sun, 04 Jul 2010 18:11:27 +0000

Sarah Barringer-Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America (Belknap/Harvard University Press: Cambridge, 2010) pp. 316

Christopher Eisgruber & Lawrence Sager, Religious Freedom and the Constitution (Harvard University Press: Cambridge, 2010, Paperback) pp. 352

Everson v. Board of Education is one of the most important and well-known Supreme Court cases for two reasons. First, it finally incorporated the Establishment Clause to apply to both the states as well as the federal government and second, it ushered in Thomas Jefferson’s “wall of separation” metaphor into the jurisprudence of the Religion Clauses. Both of these developments are at the heart of the two books we have under consideration.

Sarah Gordon’s engaging new book, The Spirit of the Law, takes a look at the flesh-and-blood stories surrounding some of the cases that flooded the Supreme Court in the post-Everson period, or what the author calls the “new constitutional world.” Through five distinct but interwoven histories of people and groups which have shaped the ever-fluid contours of the constitutional law of religion, we are invited to view the present constitutional world through the struggles of those who fought to have the law protect the mandates of their respective faiths. These stories would not have been possible without the collapse of the old regime that was largely powered by state law.

As Gordon describes in the first few pages, there are three distinct constitutional landscapes in American history that is more or less reflected in the trajectory of the nation’s religious history. The first period covers the Founding up to more or less the middle of the nineteenth century while the second period covers mostly the period after the last state disestablishment up to the promulgation of Everson. Gordon situates the stories of the Mormons, the Salvation Army and the Jehovah’s Witnesses during this second period. Interestingly, this long nineteenth century also saw the rise of a moral establishment where, despite the earlier state disestablishments, laws and other social reform measures were undergirded by the notion that Christianity formed part of common law. State attempts to enforce their monopoly on adjudicating religious issues were met by the persistence and creativity of believers who sought to bring to life the promise of liberty embedded in the Religion Clauses.

The common thread running throughout the essays in this book was the turn to law of each of these four groups: the Jehovah’s Witnesses, the Protestants and Other Americans United for the Separation of Church and State (POAU), the Nation of Islam, the Concerned Women for America (CWA) and the Religious Coalition for the Freedom to Marry (RCFM). It is important to note that the legal turn was also a spiritual turn for the people behind these groups. Out of their own religious faith, they all clung to a deeply-held conviction that the Constitution guaranteed a place for them and their beliefs in American society.

Gordon uses lucid prose to illuminate the struggles that the people behind these groups encountered along the way, shedding light on little known stories such as those of Hayden Covington and the Witnesses, Wallace Fard Mohammed and the Nation of Islam and Beverly LaHaye and the CWA. While it is not entirely clear to the reader why she has chosen to focus on these groups and not others, she does an excellent job presenting their respective dilemmas as they turned to courts for relief. Each can be read as a standalone essay but can also be read together as an entire narrative. As Gordon herself notes in an earlier book review, much of American religious history has been unfolding in courtrooms. This book is a glove thrown down as a challenge to those whose beliefs run against the grain of convention to step up and argue that the law of religious liberty protects their beliefs too.

Of course, the stories are never far, if embedded, from the culture wars that engulfed, and perhaps still continue to engulf the broader American society today. The POAU fought against what they felt was a sinister encroachment of the Roman Catholic Church into public schools and their claims for federal funding during the Protestant-Catholic wars in the 50s and 60s. CWA continued a version of that battle with secular humanism especially in schools as the enemy this time. The fruits of the efforts of RCFM continue to reverberate today as the issue of same-sex marriage still rages on in many states. The importance of marriage, as Gordon puts it succinctly, is that it is able “to unite religious and legal meaning in the lives of individual men and women, as well as in broader society.” As several states still ponder this question, the story behind RCFM’s advocacy that resulted in the Goodridge victory, allowing same-sex unions in Massachusetts, could serve as a helpful guide for both its progressive advocates and conservative foes elsewhere.

The problem however is that the law of religion is almost like a moving target, always far from being settled. It is within this landscape, one that has been shaped and is in turn shaping the likes of these four groups through the legal strategies they pursue, that we find the incoherent world of American Religion Clause jurisprudence.

Eisgruber and Sager’s book is a contribution to the continuing quest to make sense of the animating principles behind the Religion Clauses, and thereby offer coherent standards for deciding cases. More precisely, they advance a theory that strikes at the heart of the Jeffersonian wall metaphor that Everson introduced into the world. Eisgruber and Sager offers the ethical, as opposed to the historical, view that the essence of religious freedom is one of antidiscrimination, calling their theory Equal Liberty. According to this view, the Religion Clauses should be animated by concerns of fairness that will allow people of various religious persuasions to be able to live together. Thus we should treat religious freedom like all other freedoms guaranteed by the Constitution. Following the path paved by the prevailing separation metaphor, they argue, is fraught with convolutions, “a surefire recipe for inconsistency.” There must be something wrong when we treat religion as special in matters of free exercise claims, but we discriminate against it in establishment cases.

The tidiness and simplicity of application offered by Equal Liberty is tempting for anybody trying to grapple with the unwieldy case law of the religion clauses. But ultimately it is as problematic as the separationist framework it tries to dislodge. Eisgruber and Sager does not give religion its distinct place in the Constitution. As a result, it suffers from no special burdens but it does not get special exemptions either.

As this book has been originally published four years ago (this is the paperback release) and thus has garnered already a number of reviews, I will just focus on one aspect where I think the proposal encounters trouble. Eisgruber and Sager, for instance, allow government funding of religious education through voucher programs but only if there is a secular alternative available to the parents. Framed this way, religious schools are already at a disadvantage from the start. Equal Liberty does not support religious schools outright for constitutional reasons and at the same time requires a secular alternative. Anticipating this objection, the authors acknowledges that secularity is the baseline because “secular institutions and principles are self-consciously incomplete” and is thus more inclusive of various beliefs while religious schools involve comprehensive views that “function to mark believers as insiders and nonbelievers as outsiders.” This is perhaps a matter of interpretative choice. Religious believers can also view secular education as woefully insufficient to what they believe as the proper upbringing for their children.

In the end, however, this book is a provocative, if extended treatment of an idea that is meant to introduce workable standards for Religion Clause jurisprudence. It is certainly worthwhile to consider along with other theories.

Zooming out from within the doctrinal world, the world of technical constitutionalism as Sarah Gordon has described it, we go back again to the world of popular constitutionalism. Everson put law at the center of the battles between and amongst believers. And inasmuch as the incoherent mess that is the Religion Clause jurisprudence is proof that constitutional law has become the tool of choice for believers, this incoherent mess also determined the course of action or the sort of legal strategies that believers employed in support of their cause. Gordon, for instance, credits the Supreme Court prayer decisions in the 1960s as the driving force behind the opposition to secularism. From this movement arose the likes of conservative Protestants like Tim LaHaye, a pastor of one of the megachurches in San Diego, and his wife Beverly LaHaye, one of the leaders of the CWA.

The most important takeaway from this book is what Gordon writes in her Epilogue, namely that this turn to constitutional law, even if it can be frustrating for many at times, is somehow responsible for the toleration that exists in American society today. It creates unlikely partnerships and forces people to talk and put their beliefs out in the open, often dressed in constitutional language. The stories in the Spirit of the Law is an informative and engaging picture of believers and what they make of this legacy of religious liberty that the Founding Fathers have left us, even as the legal boundaries between religion and government continue to remain uncertain.

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Anna Su is a currently an SJD candidate at Harvard Law School.

Commodifying Caring

Frank Pasquale — Wed, 16 Jun 2010 17:37:22 +0000

Roger Scruton has complained that, in our society, “too many goods have a price.” He makes a Walzerian argument that certain experiences cannot be bought and sold without doing violence to their ultimate social meaning:

A century and a half ago John Muir in America and John Ruskin in England initiated the movement to save our world from spoliation. They rightly understood that nothing would be saved if we simply defend it on economic grounds. A valley might be useful as farmland, but it might be even more useful as a reservoir or an opencast mine. Only if we recognize the intrinsic value of nature will it be proof against our predations; hence we should esteem landscapes and forests for their beauty, for their sacred quality, for the part they play in defining us and ennobling our settlements, rather than for their use. Only this will keep the market at bay and prevent us from consuming our world. . . .

Love is priceless, not because its price is higher than we can pay, but because it cannot be purchased but only earned. Of course, you can purchase the simulacrum of love, and there are people who are accomplished providers. But love that is purchased is only a pretense. Goods like love, beauty, consolation, and the sacred are spiritual goods: they have a value, but no price.

Economists don’t like spiritual goods. Such goods are connected to us not as things to be used, consumed, and exchanged but as parts of what we are. To lose them is to lose ourselves.

Perhaps the ultimate revenge of the economic mindset on commitments like Scruton’s is the rise of the caring industry, which Ronald W. Dworkin incisively examines in a recent article:

Half of all Americans today are lonely. Not only lonely but also unhappy. An estimated 20 percent of the population exhibits symptoms of anxiety and depression, and in some states the prevalence of symptoms is closer to 30 percent. An estimated 95 percent of Americans have low self-esteem. Consistent with these trends, at least 15 percent of Americans are now on a psychoactive drug at any given moment.

People want to be able to go about their daily lives with the knowledge that someone is there for them. This basic truth led to the rise of the caring industry. Millions of unhappy people use professional counselors to compensate for having no one to talk to about their everyday problems. . . .

Today in the U.S. there are 77,000 clinical psychologists, 192,000 clinical social workers, 105,000 mental health counselors, 50,000 marriage and family therapists, 17,000 nurse psychotherapists, and 30,000 life coaches. Most of these professionals spend their days helping people cope with everyday life problems, not true mental illness. More than half the patients in therapy don’t even qualify for a psychiatric diagnosis. In addition, there are 400,000 nonclinical social workers and 220,000 substance abuse counselors working outside the official mental health system yet offering clients informal psychological advice nonetheless.

Perhaps the legal valorization of friendship is ever more necessary when economic measures (like GDP) positively value the replacement of (free) friends with paid members of the caring industry. I also think that, given how prized labor mobility is in the US, we may as well get used to the rise of the “caring industry,” and commit ourselves to caring more about making professional caregivers’ lives more secure.

Photo Credit: Paro robotic seal, designed in part to provide company to the lonely elderly in a country which is not particularly open to immigrant labor.

Book Review: Richards’s Fundamentalism in American Religion and Law

Eric Zumbach — Mon, 17 May 2010 15:16:11 +0000

David A.J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, Cambridge University Press, 2010.

“Fundamentalist religious doctrines and autocratic and dictatorial rulers will reject the ideas of public reason and deliberative democracy.”

Mr. Richards takes the epigraph (in full, above) to his volume from a late essay by John Rawls, “The Idea of Public Reason Revisited,” in which fundamentalist doctrines—whose comprehensive vision of the truth conflicts with the principles of deliberative democracy—are presented as a threat to a reasonable and just society. Rawls was content to state his case, as the epigraph shows, in a measured tone. One finds less restraint and greater risk in Richards, whose spirited challenge to religious and legal fundamentalism is noisy, passionate, and deeply personal.
As the courts have led the United States closer to civility, permitting women and gay men to participate in democracy as free and equal citizens, the reactionary forces of fundamentalism have struggled to keep the newly liberated in a state of “moral slavery” (e.g., 31) where women are considered weak-willed and best kept for child-rearing, and homosexuality a vice. “Moral slavery” is the status quo ante bellum, a return to the hierarchical order that governed before the culture wars, before the civil rights movement and the progressive recognition of the right to intimate life. Each fundamentalism is a project of restoration: originalism that reads the Constitution as though over Madison’s shoulder; New Natural law that draws moral principles from the vanguard of the 13th century; Protestant fundamentalism that insists on demonizing homosexuality based on a literal reading of scripture; the theology of Joseph Smith that promotes the sexual order of the (original) patriarchs. These Edenic visions of a world that once was ordered as fundamentalists would have it ordered—these rejections of Rawls’ principle of public reason—are what Richards finds so dangerous, and against which he writes so movingly.

Even a sympathetic reader will have quibbles. When, for instance, Richards writes in his critique of the unreasonableness of originalism that “[n]o approach to constitutional interpretation may be regarded as reasonable if its leading advocates never pursue its requirements consistently” (54), one wonders what he means by “leading advocates,” “never pursue,” “requirements,” and “consistently.” So much has been written about originalism that one is inclined to believe it exists, but Richards’ slippery language does little to raise the phantom, and does far less to dispel it. The same may be said for fundamentalism and for patriarchy, neither of which are well defined. The word “originalism” is, in the volume under consideration, a circumlocution meant to call forth Scalia and Thomas, Bork and Berger without naming them individually. Too much is made of the ideologues whose personalities are, after all, public projections of greater intellectual consistency than is to be found in the projectors, and too little is made of fundamentalism as a public event. One may speak about John Finnis and Billy Sunday, but having done so what has been said? Have the prejudices of the average fundamentalist, whoever or whatever that is, come into clearer focus? Are the names of “leading advocates” the only clarity to be had?

Between the ideologue and the public, between the overdetermined and the vague, Richards finds his way forward by the light of psychology: “How is it possible that in an advanced, well-educated nation like the United States, in which there is such a deep consensus about the enduring values of our democratic constitutionalism, fundamentalism should flourish in both religion and law?” (5). Passing over the uncertain phrases “deep consensus” and “enduring values,” one faces an absurd, patronizing, and perfectly legitimate question: Why do fundamentalists believe the things they believe? Of course each fundamentalist has an answer, and the answers are as numerous as the adherents. Some are born into their beliefs, some born again into them. The cocktail party answer—unfit for mixed company, to say nothing of scholarly publication—is that fundamentalists are damaged, heirs to and fathers of a neurosis. Or, in Richards’ language: Fundamentalists are sufferers of a “traumatic [break] in personal relationships that [leads] to an identification with patriarchal voice and a resulting dissociation that not only cannot connect with reasonable dissenting voices but also seeks to repress them” (260).

Richards, who conducts here his own status quo ante bellum, claims the war of fundamentalists against reason—the racism, sexism, homophobia—began in earnest with the celibacy of Augustine, the most baleful “traumatic break.” When Augustine renounced sexual love for his office he learned to “kill all sympathy and its expression [. . .] thereby forging the enemies and scapegoats patriarchy requires and visiting on them illimitable atrocity” (35). A quote from, of all people, Heinrich Himmler follows and for a discernible reason: The scapegoats Augustine drove into the wilderness are the Jewish people, “carnal Israel,” for whom sexual health is a virtue. Richards hangs much of his argument on the phrase “carnal Israel,” and it deserves attention. At least twice “Israel secundum carnem” appears in Augustine’s writing, most importantly in Tractatus Adversus Iudaeos and in De Civitate Dei contra Paganos. The phrase is taken from the first epistle to the Corinthians where Paul writes of “Israel kata sarka,” that is, Israel that follows after, or acts with deference to, the body. Neither Paul nor Augustine appears to make an accusation of sexual incontinence. Rather they accuse the Jewish people of fundamentalism, of stubborn adherence to the body of the law—the letter that kills—and rejection of the law’s animating spirit, Jesus. For Richards however “carnal Israel” marks a sexual abjectification of the Jewish people that precedes persecution and as a consequence he fails to take the phrase for what it is: the banal anxiety of the orthodox. Had Augustine never lived would historians need to invent him to explain the Holocaust? It is unlikely. Even if one grants Richards the existence of a patriarchal tradition in the West, Augustine is at best the chief of the early bureaucrats, and is antecedent (however directly) to the fundamentalists in contemporary America.

The cultural logic of patriarchy, whether the child of Augustine or of Origen, persists, and does so by the strength of inheritance and by a rite of passage, the “traumatic break” common to each fundamentalist. That is, Richards puts on the couch not only a tradition but each inheritor of the tradition. To demonstrate his claim Richards searches the lives of those with whom he disagrees for evidence of trauma and the development of “classically patriarchal” (220) psychology. In the biography of Justice Thomas he finds an unknown father, an estranged mother, a demanding grandfather, and racism at Yale Law School. For these reasons and others Richards concludes that Thomas is wounded, angry, lacking “ethical intelligence” (221) and “moral feeling”: the “tangled psychology of a humiliated manhood” (223). He is not a man but an epitome, the silent face of patriarchy. What, a reader may ask, about Thomas’ marriage to a white woman? Is this an instance of his ability to overcome the restrictive laws into which he was born? Or is Thomas imposing domestic authority over a white woman as revenge for racism? It is impossible by Richards’ method to say, for Richards has no method here. He merely tailors the evidence to suit the proof. Justice Scalia’s childhood was stable, yet had it not been stable one is certain the evidence would be adduced.

The anti-patriarchal man, the glittering President Obama, and his challenge to patriarchy is the ostensible subject of Richards’ book. The President is featured in the subtitle, he appears on the cover sharing a look of mutual admiration with Justice Sonia Sotomayor (a vision straight from the nightmares of Glenn Beck), but is discussed by Richards only briefly at the start of the book and for ten pages near the end. Obama’s biography is mined and various facts from his youth and early adulthood are offered to convince the reader that “Obama is conspicuously not a patriarchal man” (238), but the effort falls flat. After 230 pages of often virulent argument against fundamentalism, the arrival of President Obama in these pages seems too much like the messiah descending on a cloud, come to make an optimistic end of a long and dreadful period. The President is the repository of Richards’ electoral hopes, and the most promising figure of a generation, but he is the anti-patriarchal man no more than Justice Thomas is his antithesis. It is curious that Presidents Reagan, Bush I, and Bush II are mentioned frequently by Richards but never Carter or Clinton who, one imagines, have proven a disappointment to anybody waiting for the destruction of fundamentalism. The presidency nowadays is no place for revolutionary figures.

Ultimately President Obama is irrelevant to the book for the subject is not him, but the author. Richards himself is the anti-patriarchal man. He is the one who has struggled for the cause of reason; it is he who is celebrated by the work, and justly. Fundamentalism in American Religion and Law is not only a scholarly work but an intellectual autobiography. Where it is unreasonable and infuriating, there Richards is unreasonable and infuriating. Where it is learned, passionate, and moving, so also is the man.

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Eric Zumbach holds graduate degrees in literature and theology and will be attending the University of Virginia Law School. He lives in Cambridge, Massachusetts.