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Category: Religion

1

Billionaire Girard’s Imperfect Legacy

GC Founder's HallIn 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 More

7

WWJP (Where Would Jesus Park)?

No Parking SignWith 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?

9

The Blossoming Union of Same-Sex Marriage and Religious Freedom

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.

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16

The Separation of Church and Market?

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:

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5

Polygamists Indicted in British Columbia

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.

59

What Exactly is Wrong With Polygamy?

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.

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19

Christianity, Law, and Contracts

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:

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2

Intersections of Religion and Governance

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.

7

Spike this Heel!

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.

Dior Spring 2009 

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.

10

The Real Face of Shar’ia

800px-IslamicGalleryBritishMuseum3.jpgGenerally 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.

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