Archive for the ‘Religion’ Category
posted by Joey Fishkin
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. Read the rest of this post »
posted by Dave Hoffman
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.)
posted by Caroline Mala Corbin
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.
posted by Caroline Mala Corbin
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.
posted by Danielle Citron
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.” Read the rest of this post »
posted by Gerard Magliocca
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.
posted by Anna Su
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.
posted by Frank Pasquale
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.
posted by Caroline Mala Corbin
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).
October 18, 2010 at 12:38 pm Tags: Establishment Clause, pledge, reasonable person, sexual harassment Posted in: Constitutional Law, Feminism and Gender, First Amendment, Religion Print This Post 8 Comments
posted by Caroline Mala Corbin
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.
October 12, 2010 at 12:46 pm Tags: Bob Jones University v. United States, discrimination, Employment Division v. Smith, free exercise, tax exemption Posted in: Constitutional Law, Feminism and Gender, First Amendment, Religion Print This Post 8 Comments
Book Review: Barringer-Gordon’s The Spirit of the Law and Eisgruber and Sager’s Religious Freedom and the Constitution
posted by Anna Su
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.
posted by Frank Pasquale
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:
posted by Eric Zumbach
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?
posted by Paul Horwitz
David A.J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, Cambridge University Press, 2010, $90.00.
When you read the words “This is a provocative book” in a review, you know you’re in the presence of a mixed compliment. On the one hand, the critic will praise the book for saying something new, interesting, and potentially valuable about an important topic. On the other, it signals that the critic thinks there is something deeply flawed, wrong, or misguided about the book, and has reached for polite language to damn it with faint praise.
With that said, let me be clear: In Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, David A.J. Richards has written a provocative book.
Its ungainly title gives a fair indication of its thesis, but Richards’ book is not so easily reducible. This is not your average jeremiad. Richards is not content simply to condemn an approach to both religion and constitutional interpretation that he finds dangerous. Instead, he wants to diagnose it: to put it on the psychologist’s couch and toy with its innards. Richards offers a vision of constitutional and religious critique as DSM-IV.
Fundamentalism, both in religion and in American constitutional law and particularly originalism, are “rooted in a patriarchal psychology,” Richards writes. By patriarchy, he means “a hierarchy – a rule of priests,” in which “only the father has authority in religion, politics, or law.” Its roots are both historical and personal. It represents a tradition stretching back to ancient Rome, and taking in most especially the life and influence of St. Augustine, in which patriarchy “arises [from] traumatic breaks in personal relationships (including of sons from mothers).” This leads to a fundamentally repressive approach to both law and religion. Its opposite is “democracy, in which authority accords everyone a free and equal voice, a voice that both breaks out of the gender binary and contests hierarchy.” More in anger than in sorrow, Richards argues that religious and constitutional patriarchs are, not to put too fine a point on it, sick, while those who favor “democracy” are healthy, integrated individuals. His primary positive example is Barack Obama, who “has seen more deeply into and resisted originalism than any other American politician,” and whose “moral voice” has elicited a profound “resonance in the American people.” Read the rest of this post »
posted by Nate Oman
For those who care about such things, I have a new paper up on SSRN entitled “Bargaining in the Shadow of God’s Law: Islamic Mahr Contracts and the Perils of Legal Specialization.” This one looks at the treatment of Islamic marriage contracts by American courts, and was written for Wake Forrest’s recent symposium on context and contract law. Enjoy! (The abstract is after the jump) Read the rest of this post »
posted by Nate Oman
I recently taught Sherwood v. Walker, the famous case involving a Michigan cow named Rose 2nd of Aberlone, as well as a number of other mistake cases in contracts dealing with cows. I’ve got bovine jurisprudence on the mind. It seems that the same is true for Eugene Volokh, who recently noted a case involving a “church owned cow.” The cow in question was owned by the Mormon Church and seems to have negligently collided with a motorcycle. In the interests of extending our jurisprudential understanding of cows, I can’t resist adding another twist to the church-owned cow story.
The Mormon Church’s involvement in agriculture is a legacy of the nineteenth century practice of Mormons paying tithing in kind to the church. As a result of this practice, in the nineteenth century, the church acquired large herds of cattle as well as other food stuffs. It then issued so-called “tithing scrip,” which was in effect private currency. The holder of scrip could redeem it for foodstuffs, including beef, at church storehouses. The scrip then circulated as money, in effect providing liquidity to the perpetually cash starved economies of the Intermountain West in the nineteenth century. Because the currency was in effect backed by cows, however, it was subject to some odd monetary pressures. For example, when a particularly harsh winter killed off a large proportion of the church’s cattle herds, it was forced to reduce the purchasing power of tithing scrip at church storehouses because there simply wasn’t as much beef available as previously. The result was price inflation as the value of the scrip declined.
As part of its efforts to raise revenue during the Civil War, the U.S. government passed a series of banking acts designed to decrease government borrowing costs. All nationally chartered banks were required to hold their reserves in the form of treasury bonds, and non-federally chartered institutions were hit with a heavy tax on the notes that they issued. The effect was to slap a punitive tax on any bank depositor who did not loan his or her savings to the U.S. government. During the 1880s federal prosecutors in Utah decided that the various scrip-issuing bodies of the Mormon church were subject to this tax, and demanded decades of back taxes, eventually killing off the scrip and replacing it with currency issued by federally chartered banks.
Taxes. Regulation. Inflation. Cows. Some things never change.
posted by Frank Pasquale
I’m late to the party here, but I wanted to put in a plug this Good Friday for the bloggers at Religious Left Law, an all-star group which includes Bob Hockett, Patrick S. O’Donnell, Eduardo Penalver, Steve Shiffrin, and Elizabeth Sanders. Recent “keepers” on the blog include a Catholic endorsement of health reform by Steve Schneck, Patrick S. O’Donnell on justice, inequality, and health, and Steve Shiffrin on hell. The last post reminds me of a First Things essay on “Purgatory for Everyone,” which I find bracing reading this time of year. And Schneck’s essay should be of interest to anyone who liked my colleague Kathleen Boozang’s eloquent take on HCR here at Co-Op last year.
posted by Nate Oman
I have been researching Reynolds v. United States (1879), the Supreme Court’s first Free Exercise case, on and off for several years. For those who are interested, my paper on the topic is now available for download at SSRN. My interest in the case is historical rather than doctrinal. I am interested in what Reynolds, which held that religious polygamy was not protected by the First Amendment, and the anti-polygamy crusade that followed tell us about constitutional politics in the nineteenth century. Historians have generally situated the case within the context of the post-Civil War politics of Reconstruction. The anti-polygamy crusade kicked off by Reynolds is seen as an extension of Reconstruction into the West. I offer a new interpretation.
I began my research by asking myself what the theory of the First Amendment put before the Court by the Reynolds’s lawyers looked like. The Court — following the arguments of the Attorney General — characterized the Mormons as claiming that all religiously motivated action was exempt from the criminal law. This sort of absolutist position, the Court and the government pointed out, would allow absurd results such as the inability to criminalize religiously motivated murders. The Court, however, was knocking down a straw man. The Mormons never in fact made this claim. Rather, they argued that the First Amendment only protected religiously motivated conduct that was not malum in se, that is wrong in and of itself as opposed to being wrong merely because of the law (malum prohibitum). Actions could be judges as malum in se, they went on to argue, by appeal to a set of well-established natural law arguments. These arguments were based in part by a series of more-or-less positive analogies to non-Western legal systems. The Court responded implicitly to this argument by analogizing Mormons to Indians and the federal government to the British Raj. In other words, the Court in effect looked at “The Mormon Question” through the lens of imperialism.
This imperial analogy was more than a one-off rhetorical fillip in the Court’s opinion. It shows up all over the anti-polygamy battles, where it is important for distinguishing the situation in Utah from the situation in the Reconstruction and post-Reconstruction South. It also gets picked up on in the first generation of cases that invoke Reynolds and its progeny as precedent. These cases, known as The Insular Cases, arose in the context of the United States’ conquest of the Philippines in the Spanish American War of 1898 and addressed the question of the federal government’s authority to engage in imperialism and colonialism abroad. In these cases Reynolds was seen not as a First Amendment case as much as a case about the scope of Congressional power over a conquered people. My paper thus suggests that Reynolds and the anti-polygamy battles need to be seen not only in the context of the domestic debates over Reconstruction that proceeded them. Rather, Reynolds and its heirs must also be seen as a prelude to the international debates over imperialism that followed the Spanish American War.
For those interested, here is an abstract of the paper: Read the rest of this post »
March 3, 2010 at 8:46 am Posted in: Constitutional Law, Criminal Law, First Amendment, History of Law, International & Comparative Law, Jurisprudence, Law and Humanities, Race, Religion, Supreme Court Print This Post One Comment
posted by Lawrence Cunningham
In his early-19th century will, Stephen Girard, one of the richest persons in United States history, endowed a school, Girard College, for the education of white boys who were poor and orphaned. As of the early 21st century, the Philadelphia school (whose Founder’s Hall is pictured at right and from which I was graduated in 1980), educates students of all races and both genders from families with limited financial resources headed by a single parent or guardian. Thus have the scope of race and gender radically opened and the concepts of poor and orphaned subtly shifted.
Girard’s will, which elaborately detailed all aspects of the school and dedicated his entire fortune to creating it, also prohibits clergy of any sect ever from stepping foot on campus. Despite early constitutional challenges, this provision remains unchanged and generally enforced. Though there is considerable scholarship on Girard College, in law as well as sociology and other fields, relatively little intellectual energy has been devoted to discerning how and why transformations occurred as to race, gender, poverty and family, yet not as to religion.* Read the rest of this post »
posted by Adam Benforado
With all of the talk over the last few months about “death panels,” nationalizing banks, and the dangers of trying al Qaeda terrorists on U.S. soil, it is easy to believe that attacks on our freedoms are easy to spot, but often they are not.
They can hide on quiet Sunday streets. They can lurk in the shadows of a perfect fall day.
A couple of Sundays ago, I was walking in downtown Philadelphia at around 3PM when I came upon a traffic attendant writing a ticket for a car parked on the north side of Spruce Street just south of Rittenhouse Square. As I often saw vehicles parked up and down the street on Sundays despite the clear “No Stopping Any Time” signs, I decided to ask what the rule was.
I was told by the attendant that the City tickets cars “after church let’s out.” WhenI pressed the attendant on whether that was the official policy, she told me it was.
Doing a little more research (plucky young academic that I am), I found some interesting details at the website of the Tenth Presbyterian Church. According to the site, “The City of Philadelphia generously permits parking by the congregation in designated areas near the church for Sunday services and for certain types of congregational special events.” To enjoy these “[s]pecial relaxed street parking privileges,” a member of the congregation must pick up a church-issued parking placard from one of the church lobbies and display it in the front windshield. The church goes on to offer to “help resolve” any tickets that are received despite displaying the placard.
Yes, perhaps, I’m just frustrated to not be among the chosen—I do covet a good parking spot—but this doesn’t seem, well, “kosher.”
If the city of Philadelphia does not believe that there are enough parking places in Center City on Sundays, there is any easy answer: remove the parking prohibition on Sundays for all Philadelphians—Christians, Muslims, Jews, agnostics, and atheists alike. There is no reason that a tax-paying secular humanist who wants to take her children to the park ought to get a ticket and a tax-paying Christian who wants to attend services ought not.
As this has piqued my interest, I have vague (and unlikely-to-be-realized) plans to fill out a request for information from the City, but before I do that I think it is best to make outrageous claims and reach unfounded conclusions based solely on the above details. What do you think? Is this totally harmless or . . . an affront to the history of Pennsylvania, a violation of the United States Constitution, and a sure sign that the Rapture is already upon us?