Archive for the ‘Religion’ Category
Book Review: Barringer-Gordon’s The Spirit of the Law and Eisgruber and Sager’s Religious Freedom and the Constitution
posted by Anna Su
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.
July 4, 2010 at 2:11 pm
Posted in: Book Reviews, Constitutional Law, First Amendment, Religion
Print This Post
No Comments
Commodifying Caring
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:
June 16, 2010 at 1:37 pm
Posted in: Culture, Current Events, Family Law, Feminism and Gender, Health Law, Religion, Uncategorized
Print This Post
7 Comments
Book Review: Richards’s Fundamentalism in American Religion and Law
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?
May 17, 2010 at 8:16 am
Posted in: Book Reviews, Constitutional Law, Law and Humanities, Law and Psychology, Religion
Print This Post
No Comments
Book Review: Richards’s Fundamentalism in American Religion and Law
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 »
May 5, 2010 at 9:03 pm
Posted in: Book Reviews, Constitutional Law, Law and Humanities, Law and Psychology, Religion
Print This Post
One Comment
Bargaining in the Shadow of God’s Law
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 »
April 12, 2010 at 10:19 pm
Posted in: Contract Law & Beyond, Religion
Print This Post
No Comments
Church-owned Cows and Inflation
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.
April 7, 2010 at 10:39 am
Posted in: Agricultural Law, Contract Law & Beyond, Food, History of Law, Just for Fun, Religion
Print This Post
One Comment
Welcome to the Blogosphere: Religious Left Law
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.
April 2, 2010 at 6:11 pm
Posted in: Blogging, Health Law, Religion
Print This Post
No Comments
Natural Law, Imperialism, and the Birth of Free Exercise Jurisprudence
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
Billionaire Girard’s Imperfect Legacy
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 »
January 5, 2010 at 8:59 pm
Posted in: Civil Rights, Estates and Trusts, Family Law, Feminism and Gender, Race, Religion
Print This Post
One Comment
WWJP (Where Would Jesus Park)?
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?
December 1, 2009 at 6:30 am
Posted in: Property Law, Religion, Uncategorized
Print This Post
6 Comments
The Blossoming Union of Same-Sex Marriage and Religious Freedom
posted by Ira Lupu
After approval of Proposition 8 in California last fall, who would have expected to find the movement for same-sex marriage and concern for religious freedom on common ground in the spring? As legislatures in Vermont and Connecticut have just demonstrated, however, a long-overdue reconciliation between claims of marriage equality and those of religious liberty is there for the taking.
In the fight over Proposition 8, social conservatives used arguments about religious freedom as a sword. Their most prominent arguments were spectacularly overstated. Some proponents of Prop 8 warned, for example, that recognition of gay marriage would lead to hate speech prosecutions of anti-gay pastors, and loss of tax exemption for churches that refused to host same-sex marriages. Though neither of these developments was remotely likely, some voters were apparently moved by these assertions to support Prop 8.
Very recently, however, same-sex marriage has gotten a tremendous boost. In early April, the Iowa Supreme Court and the Vermont legislature, acted in favor of same-sex marriage. On April 23, the Connecticut legislature did likewise. But Vermont and Connecticut, acting through the legislative process, took steps that are not open to courts in cases like that in Iowa. Both the Vermont and Connecticut legislatures acted to protect religious freedom as well as marriage equality. The recently enacted Vermont law recognizes the right of clergy to not preside over same-sex marriages; the right of religious organizations to refuse the use of their facilities to celebrate a same-sex marriage; and the right of fraternal benefit societies, such as the Knights of Columbus, to refuse to provide insurance benefits to same-sex partners of its members if the organization has religious scruples against doing so. The Connecticut law includes those three safeguards for religious liberty but goes farther still. It insulates religious organizations from liability for refusing to provide any goods or services when the request for such goods or services arises from a same-sex marriage – so, for example, a religiously affiliated college would not have to make its married student housing available to a married same-sex couple. And the Connecticut law exempts adoption and foster care services run by religious organizations from any obligation to serve same-sex couples, so long as these services are not government-funded. Thus, in Vermont and Connecticut, religious liberty became a shield for religious freedom against the intrusion of same-sex marriage on traditional religious values, not a sword to be used against all recognition of such marriages.
May 6, 2009 at 6:00 am
Posted in: Civil Rights, Constitutional Law, Politics, Religion
Print This Post
9 Comments
The Separation of Church and Market?
posted by Nate Oman
Over at the NYT’s Think Again blog Stanley Fish has a post on the Obama Administration’s contemplated reversal of the so-called conscience clause, which allows medical professionals to refuse to provide otherwise legal procedure when they have religious objections. Fish presents the issue as pitting the demands of a neutrally applicable law against the demands of personal conscience. He writes:
In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws laws not promulgated with the intention of affronting anyone’s conscience the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Of course Fish doesn’t quite get the law right. While he is correct that generally claims that the constitution requires the exemption of religious believers from neutrally applicable laws has been a loser in court, the Justices have also been quite clear of late that despite this hostility, it is fine for law makers to create such exemptions as a matter of non-constitutional law. This is my understanding what the Bush Administration did. No matter. We don’t read Fish for the constitutional law anyway. Far more interesting is his connection of the debate to the broader issue of religion in a liberal democracy:
April 13, 2009 at 9:31 pm
Posted in: Civil Rights, Contract Law & Beyond, Jurisprudence, Politics, Religion
Print This Post
16 Comments
Polygamists Indicted in British Columbia
posted by Solangel Maldonado
The day after I posted What Exactly is Wrong with Polygamy, the Canadian press reported that two alleged leaders of the polygamous community of Bountiful in British Columbia had been charged with practicing polygamy in violation of the Criminal Code. The Code makes it a crime for any person to enter into “any kind of conjugal union with more than one person at the same time.” One of the charged men is alleged to have 20 wives; the other man is alleged to have two wives. There is no allegation that the defendants’ wives are underage. Although no charges have been brought against any of the wives, as Angela Campbell has pointed out, “[e]nforcing the criminal law against polygamy risks imprisoning not only the women’s husbands, but also them.”
The criminal indictment has placed the issue of polygamy at the forefront of Canadian constitutional law. The British Columbia authorities have been aware of the practice of polygamy in Bountiful for decades, but had chosen not to prosecute, in part, because some legal experts believe that the prohibition on polygamy will not survive a constitutional challenge. The Canadian Charter of Rights and Freedoms protects “freedom of conscience and religion.” In fact, the British Columbia Attorney General sought legal advice from three independent sources before deciding to approve the indictment and two recommended against charging the men with polygamy. The opinion of the third source has not been released.
Unlike the U.S. Supreme Court, which has rejected claims of religious freedom to practice polygamy, the Supreme Court of Canada has never addressed whether laws prohibiting polygamy violate the guarantee of religious freedom under the Charter of Rights. The accused men, who are alleging religious persecution, are likely to claim religious freedom as a defense to the charges. It will be interesting to see how this case develops.
January 10, 2009 at 11:54 am
Posted in: Family Law, Religion
Print This Post
5 Comments
What Exactly is Wrong With Polygamy?
posted by Solangel Maldonado
Thanks to Concurring Opinions for inviting me back to blog this month. I look forward to your comments.
I have been thinking a lot about polygamy lately. As I prepare to teach Family Law once again, I am confronted with polygamy everywhere I turn. First, the third season of Big Love, the HBO series about a Utah entrepreneur struggling to support and “satisfy” his three wives and eight children, begins next week. Second, last April, the Texas Department of Family and Protective Services removed 468 children from their homes in a polygamous ranch. Although the Texas Supreme Court ordered the children’s return to their parents after finding no immediate danger warranting emergency removal, child protective services has continued its investigation in a handful of cases. Third, I have been following Professor Angela Campbell’s research on the polygamous community of Bountiful in British Columbia, which has challenged some of my assumptions about polygamous wives. Finally, I recently learned that polygamy is practiced in the U.S., not only by members of a fundamentalist Mormon sect in Utah, Arizona, and Texas, but also by Black Muslims and African immigrants in New York and Philadelphia. This brings me to the question I would like to raise: What exactly is wrong with polygamy? I will discuss some frequently made arguments and look forward to reading yours.
Polygamy is illegal in all 50 states. Yet, it is estimated that 50,000 to 100,000 men, women, and children live in polygamous households in the U.S. Most polygamists do not enter into plural marriages for purely personal reasons, but rather are guided by religious beliefs. Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (which broke with the Mormon church in 1890 when the latter disavowed polygamy) believe that only men who have at least three wives will enter the highest level of heaven and that women can only get to heaven if their husbands take them there. The United States Supreme Court, in Reynolds v. United States , rejected claims of religious freedom under the First Amendment to practice polygamy.
January 6, 2009 at 10:00 pm
Posted in: Family Law, Feminism and Gender, Religion
Print This Post
46 Comments
Christianity, Law, and Contracts
posted by David Opderbeck
With all the chatter recently about Sarah Palin and the religious right, and Barack Obama and Jeremiah Wright, it’s all too easy to charicature the relationship between law and religion in general, and law and Christianity in particular. A splendid new book edited by John Witte and Frank Alexander, Christianity and the Law: An Introduction (Cambridge University Press 2008), seeks to recover the deep and nuanced connections between Christian social theory and Western jurisprudence. Unlike many polemical works written by today’s battling theonomists and strict separationists, Christianity and Law doesn’t dwell on defining founding myths about America and its original status as either a religious “city on a hill” or a walled garden in which enlightened rationalists could feel safe from the Church. Most of the essays in Christanity and Law dig deeper into the Jewish, Roman and medieval roots of Christian jurisprudence.
Among the many gems uncovered in this excavation is Harold Berman’s chapter “The Christian Sources of General Contract Law.” Berman summarizes those roots as follows:
November 7, 2008 at 12:25 pm
Posted in: Religion
Print This Post
19 Comments
Intersections of Religion and Governance
posted by Robert Ahdieh
I write with the latest in my series: “It’s Saturday, so I must be in…”
This Saturday, I’m in Washington, at a conference I helped organize at American University, on Exploring the Intersections of Religion and Governance: Past, Present, and Future.
Over the course of the day yesterday, and continuing today, the discussion has explored historical and comparative perspectives on the relationship of religion and governance, the relevance of religious communities to the pursuit of social and economic development, intersections of religious belief with the regulation of both climate change and corruption, and even the religious dimensions of intellectual property law. Speakers have included Arash Abizadeh, Abduh An-Na’im, Jeremy Gunn, David Hunter, and Layli Miller-Muro. All told – in my admittedly biased assessment – a fasinating conference!
Anyway, for those who may be interested in questions of law and religion, the conference is being webcast, and will also be available in video format for viewing/downloading later this coming week, at http://www.wcl.american.edu/secle/video.cfm.
October 11, 2008 at 10:58 am
Posted in: Religion
Print This Post
2 Comments
Spike this Heel!
posted by Susan Scafidi
Many thanks for the invitation to join you all in blogging at Concurring Opinions! During my visit I’m looking forward to writing about things that are not necessarily part of my law-and-fashion beat over at Counterfeit Chic, but to start off I can’t resist sharing an image from Paris Fashion Week that touches upon – or, rather, walks all over – both fashion and cultural property.
Take a close look at this sandal from John Galliano’s runway show for Christian Dior. The carved statuette that forms the heel is reportedly a Masai fertility symbol.
Even setting aside the awkward juxtaposition of a curvy, pregnant woman with teenage fashion models so thin that they may not even be capable of conceiving (a legal issue for another day), the colonialist image is a disturbing one. Galliano, like many other Western designers, is known to “ransack the world’s closets for inspiration,” as I put it in my first book. Many of the resulting cultural hybrids (to use Naomi Mezey’s term) are extraordinarily beautiful expressions of human creativity that few would wish out of existence, even if greater norms of attribution to source communities should be developed and encouraged. Some uses of others’ cultural products, however, are simply inappropriate. Placing an African religious symbol literally under the heels of predominantly white women on a European runway is one such offensive use. Selling those same shoes to wealthy women around the globe is another.
I’m reminded of an Australian case that I’ve written about and taught, along with Christine Haight Farley and a number of other scholars. Milpurrurru v. Indofurn Pty. Ltd., (1994) F.C.R. 240, involved a rug merchant who appropriated a series of sacred Aboriginal images for his carpets. It happened that in this case the theft was so literal that copyright law provided a remedy. But what about damages for the desecration of the sacred images that had been trodden underfoot? Or the fact that, lengthy as copyright terms are, religious beliefs are likely to outlast them? Or the potential appropriation of religious images that are not the work of a specific living artist but are instead iconic forms, repeated and passed down over time?
To be fair, maybe the admittedly brilliant Galliano or the august fashion house for which he designs consulted authorized Masai representatives and female elders, who freely and without the pressure of economic or other coercion licensed the use of the fertility figure. It could even be their gift to the reproductively challenged pale populations to their north. But I doubt it.
Perhaps the most peaceful resolution of an issue like this one is a demand for mutual inquiry and respect, rather than protective legislation. Moreover, bearing in mind the violent response to Danish editorial cartoons of Mohammed several years ago and the resulting tension between religious demands and freedom of speech, any such legislation would require extraordinarily careful drafting. But if the cultural “owners” of this fertility symbol object to its commercialization, there should be some forum for their concern.
October 1, 2008 at 2:25 pm
Posted in: Culture, Intellectual Property, Race, Religion
Print This Post
7 Comments
The Real Face of Shar’ia
posted by Nate Oman
Generally speaking, when Americans hear about shar’ia it conjures up images of bearded and turbaned Taliban executioners gleefully stoning women to death in an Afghan soccer stadium. It is an unfair stereotype of a great legal tradition, and it is also one that misses some of the most important issues that shar’ia raises for the modern world. As usual, if you want to find the real action follow the money.
In a nutshell, there is a lot of money sloshing around the Islamic world. 20 percent of the world’s population is Muslim and at least part of the population sits atop oil fields that churn out an enormous amount of cash every day. What is an observant Muslim, one who cares about Islamic strictures against usury to do? Islamic law forbids the taking of interest, but certain transactional structures that allow some return in exchange for tying up capital are allowed. For example, a straight out purchase-money loan with interest secured by a mortgage on a the purchased house would violate Islamic injunctions against usury. On the other hand, if the bank buys the house, leases it to the resident for a period of years, followed by the resident’s purchase of the house at the expiration of the lease for a nominal sum, it does not violate the injunction. The game in Islamic finance is to come up with ways of structuring transactions so as to generate an attractive rate of return for investors without running afoul of the strictures of shar’ia. The result has been a cottage industry of banks and lawyers experimenting with various transactional structures and then rushing to find a reputable Islamic legal scholar willing to issue a fatwah validating the deal for Muslim investors.
September 5, 2008 at 10:11 am
Posted in: Contract Law & Beyond, International & Comparative Law, Jurisprudence, Religion
Print This Post
10 Comments
Theodicy in the New Yorker
posted by Frank Pasquale
James Woods’ essay on the problem of evil in the New Yorker is an illuminating reflection on the question of how an omnipotent and benevolent God can permit suffering. The essay gives us a sense of how everyday legal categories of restitution and responsibility inform theology (and perhaps should humble lawyers into recognizing how much their own categories owe to religious thought). Though there’s much to commend in the essay, I found his closing assessment of Marilynne Robinson’s novel Gilead most interesting:
Heaven, one of the tenderest verses in the Bible has it, is where God will wipe away all tears from our faces. In her novel “Gilead,” Marilynne Robinson adds, in a line just as tender, if a little sterner, “It takes nothing from the loveliness of the verse to say that is exactly what will be required.” Robinson, herself a devout Protestant, means that the immense surge of human suffering in the world will need, and deserves, a great deal of heavenly love and repair; it is as close as her novel comes to righteous complaint. But one could also say, more skeptically, that Christianity needs the concept of Heaven simply to make sense of all the world’s suffering—that, theologically speaking, Heaven is “exactly what will be required.” In the end, Heaven, it seems, is the only tenable response to the problem of evil. It is where God’s mysterious plan will be revealed; it is where the poor and the downtrodden, the sick and the tortured, will be healed; it is where everything that we went through on earth will suddenly seem “worth it.”
June 16, 2008 at 3:00 pm
Posted in: Religion
Print This Post
No Comments
“For Every Three Judges, Two Are in the Fire”: Richard Posner and the Usul al-Fiqh
posted by Nate Oman
I’ve been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner’s theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are — and ought to be — forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn’t preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the “the law” as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual — albeit practically constrained — judgement about what would — all things considered — be best. One doesn’t get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner’s decisions is really bad, it really is Judge Posner’s fault.
Where Judge Posner’s theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God’s law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur’an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered — not deduced from or promulgated in accordance with — with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur’an is not a legal code. Rather it is a collection of “recitations” — often in the form of religious poetry — given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these “recitations” were collected into the Qur’an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will.” Hence, there was no sense in which a jurist could hide behind some abstraction like office or “the law” to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.
According to one Muslim legal aphorism, “For every three judges, two are in the fire.” The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one’s eternal soul was on the line. I don’t think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.
June 10, 2008 at 12:37 pm
Posted in: Articles and Books, History of Law, International & Comparative Law, Jurisprudence, Legal Ethics, Legal Theory, Religion
Print This Post
7 Comments
