Site Meter

Category: Religion

2

The Law & Economics of Quaker Litigation

quakers.bmpI feel duty bound to write a post defending the honor of 17th century Quaker grandees. Their reputation has suffered enough. The Quakers had (still have?) a tradition of discouraging intra-Quaker litigation in the secular courts. In England, Quaker eschewal of litigation was founded in part on the religious inaccessibility of the courts. Courts required oaths, and Quakers, taking Christ’s admonition in the New Testament to “swear not” literally, refused to take oaths. Once the Quakers started founding settlements in America, however, this problem went away, as Pennsylvania law allowed for “affirmations” in place of oaths, an explicit religious accommodation that eventually found its way into the Constitution. Nevertheless, Quaker sermons and pamphlets continued to insist that Friends should resolve their disputes amicably before the Monthly Meetings of the Society rather than sue in the secular courts.

In his book Of “Good Laws” and “Good Men”: Law and Society in the Delaware Valley, 1680-1710, William Offutt compared the records of the Monthly Meetings with the local court records to determine the extent to which Quakers actually lived up to their own sermons. What he found was that despite the nominal threat of excommunication for filing suit against another Friend, Quakers were quite enthusiastic about suing one another. Looking at the records of the Monthly Meetings, in turn, he found that congregational leaders were more likely to “sue” other congregational leaders before the Monthly Meetings but that Quaker leaders were perfectly happy to sue ordinary Quakers before the secular courts. Offutt rather archly suggests that the reasons for this had to do with the (hypocritical) desire of Quaker elites to maintain their images with other Quaker elites. Economics, however, suggests a more charitable reading of the actions of Quaker leaders.

Read More

2

Praising Allah In The Military

Congress is considering legislation that would allow military chaplains to use sectarian prayers at nondenominational events. Supporters argue that Chaplains should be free to pray as their faith demands. Opponents worry that such prayers (lets be more precise: prayers that invoke the name of Jesus) will have the effect of excluding some in attendance and erode cohesion within the unit. (The Pentagon, which opposes the bill, actually frames it less in terms of marginalized troops, and more in terms of marginalized chaplains, saying “This provision could marginalize chaplains who, in exercising their conscience, generate discomfort at mandatory formations.”)

This proposal is really a one-way ratchet which is likely to create discomfort for various non-Christian soldiers, but which will rarely marginalize Christian soldiers. For example, few Christian soldiers will be troubled by Jewish prayers since they always reference a single God, referred to typically in English as “God.” They are sort of like “lesser included” versions of Christian prayers. (It is possible that a rabbi might use a Hebrew term, and this would potentially be alienating…though in my experience, many might simply find it “curious.”) Christian prayers which invoke Jesus exclude all Jews and Muslims (and people of many other faiths, not to mention agnostics and atheists) because they involve praying to a person who, in other religions, is explicitly not God. Sooner or later, at a non-denominational event, a Muslim chaplain will praise Allah, an Arabic term for God (and indeed essentially the same singular God as one would find in Christianity and Judaism). But though Allah may reference the same God, the term now carries loads of cultural baggage, such that many may hear that invocation as an explictly anti-American or anti-Christian statement.

If I truly believed that the Representatives supporting this legislation were ready – even eager – to hear chaplains praise Allah at non-religious events, I’d be more sympathetic to their cause. Call me a cynic, but I suspect that they’re simply trying to promote Christianity in circumstances where they see little downside. Twenty years from now, if Islam has grown in importance within the military, I suspect that these folks would be the first to argue for non-sectarian prayer. “It’s just not fair to our Christian troops”, they’d argue.

8

The accidental bigamist?

Warren Jeffs is in the news lately, and you may find yourself discussing bigamy at a cocktail party some time. Given that possibility, let me forearm you with a genuine, certifiable cocktail-party question guaranteed to dazzle and impress your friends and co-workers (or your money back):

In order to be convicted of bigamy in Utah, what is the minimum number of wives (or husbands) a person must have?

(answer below the fold)

Read More

1

An Unusual Call to the Law

woodruff.jpgLaw seems to be a profession that produces family dynasties. For example, I clerked for a judge who was the scion of a great Southern legal family that had a duo of distinguished federal appellate judges and a couple of state supreme court justices to its credit. The Oman family, however, is but one generation removed from high country ranching on the western slope of the Rockies. I have, however, unearthed some judicial ancestors through my paternal grandmother.

My great, great grandfather was a man named Justin Call. He was born in Utah in the last half of the 19th century and came of age as the confrontation between the Mormon Church and the federal government reached white-hot intensity. The Mormons had committed themselves to creating a religious (indeed theocratic) commonwealth in Great Basin that was to include communitarian economic experiments, religious direction on political questions, and — most notoriously — polygamy. Not surprisingly, an America devoted to ideals of companionate monogamy and economic individualism was not about to let the Mormon viper rear its ugly head on the nation’s hearth. The result was a series of ever more punitive laws between the 1860s and the 1880s directed against Mormon polygamists and the Mormon Church as an institution. By 1890, thousands of Mormons had been incarcerated for polygamy and “unlawful cohabitation,” the Mormon Church lay in financial ruin with essentially all of its assets confiscated by the federal government, tens of thousands of Mormons had been disenfranchised, and Congress stood poised to pass legislation that would purge all Mormons from the voting rolls. Faced with institutional annihilation and permanent political subjugation for his people, Wilford Woodruff, president of the Mormon Church, issued the so-called “Manifesto,” which began the tortuous process of abandoning plural marriage and Mormonism’s 19th-century utopian ambitions.

Ironically, the Mormon efforts to resist the federal legal campaign had been hindered by their own anti-legalism. Zion — the name that Mormons gave to their vision of the godly society — was to be a place ruled by love and justice, not by the pettifogging technicalities of the common law. Accordingly, Brigham Young and his associates treated Mormons to a good generation or two of sermons denouncing the evils of lawyers and “going to law” against one’s brothers and sisters. Hence, when the legal confrontation came, Mormons found themselves without many — in Young’s phrase — “lawyers of their own to defend them.”

Read More

4

Finding Jupiter Optimus Maximus

jupiter.gifIt is not a horribly original point, but Americans expect a great deal from their courts. If we have some nasty and apparently insoluble social problem, we take it to the men in black robes and expect them to give us wonderful oracular solutions to our problems. (Amazingly, despite two centuries of failing to provide wonderful oracular solutions to social problems, we still go to court!) And of course, we surround our courts with this oracular mystique. The judges wear priestly robes. They emerge from within an inner sanctum in which they commune with the ineffable wisdom of the law. The Supreme Court Building is modeled on a Greek temple, not only in its exterior architecture, but also in its inner lay out. An entrant to the building passes through a succession of courts, each grander than the last. Admission to each court is more closely controlled, until finally one is ushered into the soaring court room where the justices emerge from behind the veil. In ancient and less judicially ambitious times, this architectural experience would have marked a symbolic assent into the presence of the gods, where the priests emerged from behind the veil that shrouded the Ark of the Covenant or the statue of Jupiter Optimus Maximus.

Apparently, we Americans learn this reverence (idolatry?) for the law early. A few weeks ago, I took my four-year-old son with me to the law library to pick up some books. As we walked past shelf upon shelf of the federal reports, my son asked me what those big books were. I pulled down a volume to show him, thinking that I would explain to him what a case and an opinion are. No need. He took one look at the double columned agate type on foolscap paper, and said, “Oh. It’s the scriptures.” I looked down and realized that the reporters do look suspiciously like the family Bible. It would seem that even in our book binding, the law apes the sacred.

1

The Real Bellweather Elections?

SBC.jpg

Bob Dylan was right. You don’t need a weatherman to know which way the wind blows. The best way to learn that is by following major church elections. Before I moved to Birmingham, I would never have noticed the incredibly important votes being held at the annual conventions of Episcopalians, Presbyterians, and Southern Baptists. If you want to get a sense of the American mainstream, look no further than these meetings.

The Episcopalians, desperately trying to maintain a balance between their American progressive membership and the broader Anglican church, rejected a ban on gay bishops, but then adopted a non-binding resolution urging Episcopal leaders “to exercise restraint by not consenting to the consecration of any (bishop) candidate whose manner of life presents a challenge to the wider church and will lead to further strains on communion.” And here in Birmingham, Alabama, of all places, Presyterians (by which I mean Presbyterian Church USA, the largest group of American Presbyterians) gave local church groups leeway to decide whether to ordain gay clergy, or allow gay members to become deacons and elders. While hardly an endorsement of gay clergy, the vote – by a relatively narrow 57% margin – was a significant step for the recognition of gay people as full members of the church.

Meanwhile, all three groups elected new leaders. The Episcopalians elected their first woman leader, a Nevada bishop named Katharine Jefferts Schori. (Schori voted in support of naming the first openly gay Episcopal bishop back in 2003.) Many Anglicans continue to believe that women should not be priests so, notwithstanding the generally progressive approach of American Episcopalians, this remains a “fashion forward” move. The Presbyterians elected their own new female leader; Rev. Joan Gray was elected moderator for the next two years. And most interestingly of all, the Southern Baptist Convention elected Frank Page their new president. Page is no liberal – for most northeasterners he’d be viewed as extremely conservative – but he is what I’d call a “lifestyle Baptist.” He seems willing to soften SBC on some of the edges in order to compete with the mega-churches (known for cutting parishoners a break when church demands conflict with lifestyle) and the likes of Rick Warren (author of “A Purpose Driven Life.”) As Page put it, “I believe in the word of God. I’m just not mad about it.” Page may be plenty conservative, but for a convention that has often cottoned to the radical right (former SBC prez Jerry Vines once said that Mohammed was a “demon-possessed pedophile” – a comment which inspired my article, Terrorism, Panic and Pedophilia), the election of Page suggests that some vaguely moderate winds might be blowing over at the SBC.

4

The epicurean ecumenical

One effect of living in a religiously plural society is an ability to reap epicurean rewards. I’m reminded of this every time I take the opportunity to stock up on Passover Coke. Passover Coke is made with sugar, rather than corn syrup. As such, it is acceptable for Passover use by observant Jews. It is also considered by most Coke drinkers to be a tastier beverage, and so non-Jewish buyers like myself take advantage of this opportunity to buy tastier Coke.

(When I buy Passover Coke, I only do so from full shelves. My inner ethical meter won’t let me buy the last, or even close-to-last bottle of Passover Coke from any store. I find myself imagining that such action on my part would affect some poor observant Jew shopping at the same store few minutes later — that I would deprive her of her chance to buy Coke, and she would have to sit through a Passover without Coke because of my selfish actions. So, no last bottles for me — but if the shelf is full, I make sure to stock up.)

It’s not just Passover Coke, either. It’s fun to hit a diner and order some Matzo ball soup. (That stuff is tasty, particularly on a chilly New York day) Also, during Hannukah, my old law-firm cafeteria sold cute little Hannukah chocolates that I regularly took home for the kids. And so on.

I hope that this epicurean ecumenicalism isn’t a one-way street. I hope that some of my Jewish friends enjoy the (probably more limited) epicurean benefits of Christian holidays — chocolate Easter bunnies and Cadbury eggs, candy canes and gingerbread.

And while I don’t want to overstate the point, I can’t help but think that enjoying the tasty celebrations of other religious groups has to have a salutary effect on inter-group tolerance and understanding. Perceptions of a group’s gastronomic profile can certainly affect society’s thinking. If lies about Jewish dietary habits (among other things) spread by the Czar’s secret police can lead to pogroms and hatred, then can’t a shared bowl of Matzo ball soup, washed down with some Passover Coke, lead to greater understanding and appreciation of diverse religious culture and tradition? I like to think so.

In the meantime, there’s a strictly-vegetarian Indian place up the 15 a ways, next to a Hindu temple, that I’m hoping to get to some time soon.

10

Tax Scholar: Bush Is An Atheist

george_bush_narrowweb__200x245.jpgMy colleague, Susan Hamill, is never one to shy from a fight. Four years ago she burst onto the scene with her article, An Argument For Tax Reform Based on Judeo-Christian Ethics. This piece, which I’ve noted previously was a driving force behind an ultimately unsuccessful Alabama tax reform proposal, argued that (what she termed) “Judeo-Christian” ethics demanded that true believers support a more progressive tax scheme in the state. Her arguments were the centerpiece of the statewide debate on the referendum and she was targeted by Alabama’s Christian Coalition. (Curiously, she garnered the support of the national group.) I’ll never forget The Economist’s headline about this referendum: What Would Jesus Tax?

Well, my friends, Susan is back.

In her new paper, An Evaluation of Federal Tax Policy Based on Judeo-Christian Ethics, she argues that:

“the moral values driving the Bush Administration’s tax policy decisions reflect objectivist ethics, a form of atheism that exalts individual property rights over all other moral considerations. Given their overwhelming adherence to Christianity and Judaism, I conclude that President Bush, many members of Congress and many Americans are not meeting the moral obligations of their faiths.”

Powerful stuff! Susan joined the Alabama faculty as a tax scholar in the mid-1990′s. About five years ago, on sabbatical, she pursued graduate work at Samford University’s Beeson Divinity School – not exactly a hotbed of liberalism. These recent pieces reflect a marriage of scholarship with personal passion. Not surprisingly, people from many perspectives can find ways to disagree with Susan. On the other hand, she exemplifies a professor who believes her scholarship must have practical consequences. I have tremendous admiration for both her work and the way she has chosen to structure her professional life.

Is Bush an atheist? Who’d have thought you’d read the Virginia Tax Review to find out.

5

In Defense of the Megachurch

I’ve noticed lately that there are some who use “megachurch” as a derogatory term. I noticed this when I blogged that Ken Lay will be calling as character witnesses two pastors of Houston megachurches. I also noticed that Bernard-Henri Levy, who fancies himself the next Tocqueville, used the term quite condescendingly when talking about how he researched his book on American culture. Coretta Scott King’s memorial service was held at a megachurch in suburban Atlanta, much to the annoyance of some onlookers. Why do some people distrust megachurches? I don’t. I believe that megachurches serve a very important purpose in modern life, and what follows is a defense of the trend from someone quite outside mainstream Protestantism.

Read More

3

“Religious Arguments in the Law” or “Reasoning in God’s Presence”

torah.jpg

Vic Fleischer had a really interesting post on religion and tax policy over at a
Conglomerate that shouldn’t be lost in all of the Disney noise. He writes:

There is no question that one needs a theory of distributive justice to form a complete picture of tax policy. Some people may derive that theory from religious faith, others from philosophy. I have no problem with those who derive their preferences from religious faith. As a matter of scholarly discourse, I find it more useful to concentrate on the philosophy side. And even within philosophy, convincing others that one approach is better than another feels to me like trying to convert someone to another faith. As a tax policy scholar, I have no comparative advantage here.

Implicitly I’m arguing that traditional tools of tax policy, including public finance economics, can sometimes lead us to demonstrably right and wrong answers about the design of a tax system. I am a skeptic about the ability of law professors to convince anyone that the top marginal rate should be 35% by appealing to Rawls OR the Bible. But I do I have a lot of faith, so to speak, in tax law scholarship and economics to speak to the proper design of the system.

There is a lot of stuff going on in these sentences. First, Vic’s argument seems a bit confused about the nature of normative reasoning. In good economic fashion, he seems to be suggesting that theories of distributive justice are a kind of preference. (E.g. “I have no problem with those who derive their preferences from religious faith.”) This, it seems to me, is fundamentally mistaken. Kaplow and Shavell aggressively pursued this line of thinking in Fairness versus Welfare, and I think that when they stray from positive economic analysis into the realm of normative argument their results are a rather dismal failure. (In my opinion, Jules Coleman offers the most trenchant criticisms in his review The Grounds of Welfare, 112 Yale. L. J. 1511 (2003)). Their failure, however, does not come because normative argument is useless, but rather because they made bad normative arguments. In a nutshell, the problem with their approach is that distributive justice is not simply an input into a personal utility function. It is also a claim about the nature of moral reality, and as such it has a truth value independent of whether or not any particular person prefers it or not.

Read More