Another skirmish in the Christmas Wars: the Sixth Circuit has decided that a county’s denial of a permit to erect a creche on public property violated the Free Speech Clause. For decades, a family in Macomb County, Michigan, had erected a Christmas creche on a roadway median. In 2008, the Freedom From Religion Foundation told the county that the creche violated the Establishment Clause and asked that it be removed; after consulting counsel, the county revoked the permit. The family then sued the county, arguing, among other things, that the county had violated the family’s free speech rights. Yesterday, the Sixth Circuit agreed. In a unanimous decision by Judge Boggs, the panel held that the median was a traditional public forum and that the county had not shown a compelling interest in rejecting the creche. Although the government argued that safety concerns justified its decision, the court dismissed this as a litigation strategy. The real reason the county had rejected the creche, the court said, was to avoid a perceived Establishment Clause violation. But, notwithstanding the legal advice the county had received, the creche did not violate the Establishment Clause. The creche, the court explained, was only one of a number of privately-sponsored displays in a public forum, and thus constitutionally unobjectionable. The case is Satawa v. Macomb County Road Commission, 2012 WL 3104511 (6th Cir., Aug. 1, 2012).
A Return to Civil Religion?
Yale sociologist Philip Gorski has written a thoughtful essay in The Chronicle of Higher Education (subscription required) on the need to accommodate both secular and religious values in American politics. Both secular and religious Americans should give up their maximalist claims, he argues, in favor of “civil religion,” a concept most closely associated in the United States with sociologist Robert Bellah:
What is needed, then, is a mediating tradition that allows room for both religious and political values, without subordinating one to the other. Such a tradition does exist. The sociologist Robert N. Bellah sought to describe it almost a half century ago in his famous article on “Civil Religion in America.” It comprises two main intellectual strands: civic republicanism and prophetic religion. Where liberalism emphasizes individual autonomy and a free market, republicanism is more concerned with civic virtue and participatory government. Consequently it is less wary of religion. Where religious conservatism stresses individual salvation and personal accountability, prophetic religion emphasizes human flourishing and collective responsibility. Consequently it is less wary of the state.
It’s an interesting idea, but I wonder whether civil religion would really do the job Gorski asks of it. At an abstract level, civil religion may resolve tensions between individualists and communitarians, between secular and religious Read more
Get That Cross Off the City Seal
Once again, we’ve hit the silly season for objections to religious symbols. This week, in response to a threatened lawsuit by the Freedom from Religion Foundation, the city of Steubenville, Ohio, decided to revise its official seal (left) to remove the silhouette of a local landmark, the chapel on the campus of Franciscan University. You see it? Take your time, it’s over there on the right. The problem was the cross on top of the chapel. According to FFRF, its depiction amounted to an establishment of religion under current Supreme Court case law, which forbids government from endorsing religion. Someone suggested depicting the chapel without the cross, but FFRF apparently objected to that, too. So, rather than face an expensive lawsuit it figured it would lose, the city caved and restored an older version of the seal (below). The old seal 
avoids endorsing religion, though it does seem to endorse wooden forts.
I’m not sure the city was correct in estimating its chances. True, many lower courts have ordered the removal of crosses from city seals under the endorsement test, but the cases are very fact specific. The key question is whether a reasonable observer would see an official endorsement of Christianity, rather than a reflection of a community’s history. For example, the Tenth Circuit held a few years ago that the city of Las Cruces, New Mexico, could retain crosses on its seal in light of the Read more
McCrudden on Religion and Human Rights
Christopher McCrudden (Queen’s University Belfast/University of Michigan) has posted a very interesting looking piece on religion and human rights, Catholicism, Human Rights and the Public Sphere. Here’s the abstract:
This article suggests that the scope and meaning of human rights, and its relationship to religion, is anything but settled, and that this gives an opportunity to those who support a role for religion in public life to intervene. Such intervention should address four main issues. First, it should ensure that judges engage in attempting to understand religious issues from a cognitively internal viewpoint. Secondly, it should articulate a justification for freedom of religion that fully captures the core of the significance of religious belief, and the importance of the religious principles in the public sphere. Thirdly, it should ensure engagement and dialogue between the churches and others on the meaning of human dignity, given its centrality to religious and secular perspectives on rights. Lastly, the churches should consider more carefully what it means to give ‘public reasons’ in the political and cultural context, and how it can engage in the process of ‘public reasoning’ regarding human rights.
Virginia Ten Commandments Case Settles
A followup to a case we noted in October. Last month, a federal district court in Virginia approved a settlement in a case challenging the constitutionality of a Giles County high school’s display of the Ten Commandments. Under the terms of the settlement agreement, the school will replace the display with a page from a history textbook that mentions the Commandments without actually quoting them. As we discussed in October, the display pretty clearly ran afoul of existing Supreme Court case law, which is particularly strict about religious symbols in public schools.
Blogging the Rome Conference: State-Sponsored Religious Displays in the US and Europe
Last week, CLR hosted a conference in Rome on state-sponsored religious displays, along with our colleagues at the Department of Law at LUMSA. The conference, held at LUMSA’s main campus in the Borgo, drew about 100 people and included panels on the cultural and religious meanings of symbols, the Lautsi case and the margin of appreciation, and a comparison of American and European jurisprudence. I moderated one panel and spoke on another, so I couldn’t take notes on everything. Here are some notes on a few of the day’s very fine presentations, though. Selected papers will appear in a forthcoming issue of the Journal of Catholic Legal Studies.
Silvio Ferrari (University of Milan) opened the conference by offering a framework for understanding state-sponsored religious displays. After describing the three models European nations have adopted with respect to such displays, Ferrari noted the central problem: “religious” symbols often have a variety of meanings, both religious and cultural, that one cannot easily disentangle. He suggested relying on Jurgen Habermas’s distinction between an “informal” public space, like a town square, and an “institutional” public space, like a courtroom. In the former, Ferrari argued, religious symbols might be permissible; in the latter, they should be prohibited. He concluded by stressing the benefits of the debate on state-sponsored religious symbols. The debate itself is important, he argued, because it forces people to take religious symbols seriously as a public question.
In the day’s second panel, Monica Lugato (LUMSA) gave a paper on the conceptual roots of the margin of appreciation doctrine, which played a central role in the Grand Chamber’s judgment in Lautsi. She explained how the doctrine, which grants national governments discretion in applying the rights guaranteed by the European Convention, follows from basic rules of treaty interpretation and coheres with the principle of subsidiarity. My CLR colleague Marc DeGirolami followed with a paper on the shift from an abstract, single-value jurisprudence to one that considers the many possible meanings of religious symbols. For example, he argued, the Latin cross has many possible references; he praised the new recognition of the multiple meanings of religious symbols in American and European jurisprudence. Cole Durham (BYU) ended the panel with a call for an authentic “pluralistic secularity,” a midway point between “confessionalism” and “fundamentalist secularism,” that would allow national majorities to celebrate their culture but not impose religion on minorities. Durham argued that the Grand Chamber’s judgment in Lautsi struck an appropriate balance in this regard.
Rome Conference: State-Sponsored Religious Displays
Marc and I are in Rome this week, where CLR is co-hosting, along with the Libera Universita Maria SS. Assunta (LUMSA), an international conference, “State-Sponsored Religious Displays in the US and Europe.” The conference, which takes place tomorrow at LUMSA’s main campus in the Borgo, addresses the treatment of religious displays in different legal systems, focusing on recent cases like Salazar v. Buono in the US Supreme Court and Lautsi v. Italy in the European Court of Human Rights. We have a great lineup of speakers, including Tom Berg, Cole Durham, Silvio Ferrari, and Ninth Circuit Judge Diarmuid O’Scannlain. Details are here. CLR Forum readers in Rome, stop by and say hello.
Temperman on Extreme Speech
Jeroen Temperman (Erasmus University Rotterdam) has posted a new piece on SSRN, Freedom of Expression and Religious Sensitivities in Pluralist Societies: Facing the Challenge of Extreme Speech. The abstact follows.
Within the European Convention system, judgments have supported legal restrictions on hate speech, but also on blasphemy or religious defamation. The universal human rights instruments, particularly the ICCPR, are increasingly geared towards eradicating hate speech (speech that threatens the rights and freedoms of others), whilst forms of extreme speech that fall short of that category are to be protected rather than countered by states. The Human Rights Committee’s recently adopted General Comment (No. 34) on freedom of expression, provides another strong indication that this is the envisaged way forward: repealing blasphemy and defamation bills, whilst simultaneously increasing the efforts to combat hate speech. This paper argues that it remains ever so important to continue taking stock of the legal justifications for restrictions that are suggested in this area and to scrutinize whether they are in fact sustainable from a human rights perspective –– not only on paper, but also in actual practice. The paper compares and contrasts the universal monitoring bodies’ approach to extreme speech with that of regional monitoring bodies, notably the European Court of Human Rights.
Tomorrow at Kellogg College (Oxford)
For CLR Forum readers in the neighborhood, the Centre for Religion in Public Life at Kellogg College (Oxford) will host a lecture tomorrow, “Religious Diversity, Exclusivism, and Public Life,” by Dr. Olli Pekka Vainio of Helsinki University. The lecture is at 5:00 pm. For details, please contact Kellogg College.
Religion and the Wisconsin Recall
Here’s a very interesting analysis, written just before the results, of the religious cross-currents in yesterday’s Wisconsin recall attempt. The author, a political scientist at the University of Wisconsin-Whitewater, points out the divisions among and within Wisconsin’s religious communities, which, he says, reflect divisions in the electorate as a whole. For example, on the central issue in the recall attempt, the right of public sector unions to bargain collectively, the Catholic archbishop of Milwaukee wrote a letter supporting collective bargaining rights, while the Catholic bishop of Madison wrote a letter stating that reasonable people could disagree on the matter. In the end, most Catholics supported Governor Scott Walker: exit polls had him winning the Catholic vote by 10 points. This could portend a shift in Wisconsin politics, where Catholics traditionally vote Democratic, in contrast to Dutch Reformed Protestants, who typically vote Republican. The article contains one great quote that has nothing to do with the recall attempt, but that is nonetheless reflective of the American penchant for non-sectarianism we have discussed elsewhere on CLR Forum. At his inaugural prayer breakfast, the Born-Again Christian Scott Walker declared, “The great creator, no matter who you worship, is the one from which our freedoms are derived, not the government.” Can’t get more American than that.