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Throne and Altar

Judging by church attendance and the percentage of people who say religion plays an important role in their lives, Europe is a secular place. And yet, as sociologists of religion have observed, Christianity continues to have a major cultural and legal role. Nowhere is this clearer than in Britain, where the Monarch is the “Supreme Governor” of the state church. Britain today commemorated the Jubilee of Queen Elizabeth II with a Thanksgiving service in London’s St. Paul’s Cathedral. The Prime Minister read from the New Testament and the Archbishop of Canterbury delivered a sermon praising the Queen for manifesting the values of St. Paul himself:

Dr Rowan Williams paid tribute to the Queen’s selfless devotion, saying: “I don’t think it’s at all fanciful to say that, in all her public engagements, our Queen has shown a quality of joy in the happiness of others; she has responded with just the generosity St Paul speaks of in showing honour to countless local communities and individuals of every background and class and race.”

One would think such ceremonies, to borrow the phrase from American law, send a message of exclusion and disparagement that religious minorities resent, but that is apparently not the case, or at least not typically. It’s not the American way of doing things, but, as Joseph Weiler has written, “there is something inspiring and optimistic by the fact that even though the Queen is the Titular Head of the Church of England, the many Catholics, Muslims and Jews, not to mention the majority of atheists and agnostics, can genuinely consider her as ‘their Queen’ too.”

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Eighth Circuit Rules Plaintiffs Have Standing to Challenge Fargo’s Ten Commandments Monument

An interesting decision by the Eighth Circuit Friday suggests a way for plaintiffs who object to public religious displays to get more than one bite at the apple. In 2002, a group called the Red River Freethinkers sued the city of Fargo, North Dakota, alleging that a Ten Commandments monument on city property violated the Establishment Clause. A federal district court applied the endorsement test and ruled against the group in 2005, concluding that a reasonable observer in the circumstances would not perceive an official endorsement of religion. The Freethinkers did not appeal that ruling, but instead petitioned the city to accept a companion monument declaring that the United States Government was “not, in any sense, founded on the Christian religion.” Rather than display both monuments, the city initially decided to remove the Ten Commandments display altogether. That decision caused a public outcry, however, and the city reversed itself. The city decided to retain the Ten Commandments monument and indefinitely table the Freethinkers’ petition for the companion display.

At that point, the Freethinkers sued again, arguing that the city’s decision to retain the Ten Commandments but reject their secularist monument failed the endorsement test. The city objected that the Freethinkers lacked standing to bring this second suit, but on Friday the Eighth Circuit disagreed. The Freethinkers had alleged an actual, concrete injury — the Ten Commandments monument had made them feel alienated and unwelcome in Fargo, they claimed — which could be remedied by the monument’s removal. Moreover, res judicata did not bar the suit, because the Freethinkers had alleged a new injury resulting, not from the city’s initial decision to erect the Ten Commandments monument, but from the city’s decision to retain the monument without placing the Freethinkers’ monument alongside it — a decision which the city took after the initial lawsuit had ended. In a separate opinion, Judge Shepherd argued that, although the Freethinkers did have standing, they were unlikely to prevail on the merits. He would have dismissed the case.

I’m not sure whether the Freethinkers planned it this way, but their strategy of offering the city a secularist memorial has cleverly kept the controversy alive. They can effectively retry the constitutionality of the Ten Commandments monument, get media attention, and impose further litigation costs on the city. (It’s already been 10 years!). Could they do this repeatedly? Assuming they lose this round on the merits, could the Freethinkers wait a while, offer a different secularist monument, and start all over again? I’m not a civ pro maven, but I doubt it. Anyhow, it’s worked for them so far. The case is Red River Freethinkers v. City of Fargo, 2012 WL 1887061 (8th Cir., May 25, 2012).

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The Memorial Day Prayer for Peace

Monday is Memorial Day in the United States, a national holiday. The day commemorates the men and women who have died serving in the US military. There will be speeches, parades, picnics and wreath-layings across the country.

There will also be an officially-promoted prayer. By law, the President “is requested” each year to issue a proclamation “calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace.” The proclamation is supposed to designate a time on Memorial Day for the prayer and invite the media to participate. This year’s proclamation, issued yesterday, reads in part as follows:

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim Memorial Day, May 28, 2012, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time to unite in prayer. I also ask all Americans to observe the National Moment of Remembrance beginning at 3:00 p.m. local time on Memorial Day.

I’m not sure why, but the Memorial Day Prayer for Peace hasn’t drawn the same attention as the yearly presidential Thanksgiving Day Proclamation. Perhaps this is because the Memorial Day prayer is a more recent phenomenon, dating, like the inclusion of the words “under God” in the Pledge of Allegiance, only from the 1950s. Perhaps people are too busy enjoying their picnics to notice. In any event, notwithstanding the Court’s occasional pronouncements about the need to avoid even generic official endorsements of religion, non-sectarian endorsements like the Memorial Day prayer are very much a part of the American constitutional tradition. Americans, on the whole, seem to like them and want them to continue. Happy Memorial Day.

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District Court Enjoins Lord’s Prayer at County Council Meetings

Another legislative prayer case, this time from Delaware. For several years, the Sussex County Council has opened its weekly meetings with the Lord’s Prayer. In December, plaintiffs represented by Americans United for Separation of Church and State brought suit to enjoin the practice, arguing that it violated the Establishment Clause. Last week, a federal district court agreed. Although Marsh v. Chambers allows legislative prayers, Judge Stark explained, the prayers must be nonsectarian, in order to avoid the implication that government endorses any particular religion. The Lord’s Prayer was undeniably a Christian, and thus sectarian, prayer; in fact, the version the Council used was a recognizably Protestant version of the prayer. (Comparative religion buffs take note: Jesus Seminar scholar John Dominic Crossan testified in the case that the Lord’s Prayer is not, in fact, exclusively Christian, an assertion Judge Stark dismissed). “The fact that the Lord’s Prayer has been the only prayer recited at the beginning of Council meetings for over six years,” Judge Stark argued, suggests that “the Council gives Christianity an unconstitutionally preferred status, sending a message to meeting attendees that the Council is promoting the beliefs of Christianity.” Judge Stark, sua sponte, stayed his injunction for a period of one month’s time in order to give the Council a chance to adopt a practice of nonsectarian prayers that would satisfy the Establishment Clause. The case is Mullin v. Sussex County (D. Del.) (May 15, 2012).

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The President, Faith, and Same-Sex Marriage

An interesting point that may be overlooked in President Obama’s announcement yesterday that he supports same-sex marriage. According to the President, his faith as a Christian helped lead him to this position. Referring to his wife, First Lady Michelle Obama, he said:

This is something that, you know, we’ve talked about over the years and she, you know, she feels the same way, she feels the same way that I do. And that is that, in the end the values that I care most deeply about and she cares most deeply about is how we treat other people and, I, you know, we are both practicing Christians and obviously this position may be considered to put us at odds with the views of others.

But, you know, when we think about our faith, the thing at root that we think about is, not only Christ sacrificing himself on our behalf, but it’s also the Golden Rule, you know, treat others the way you would want to be treated. And I think that’s what we try to impart to our kids and that’s what motivates me as president and I figure the most consistent I can be in being true to those precepts, the better I’ll be as a as a dad and a husband and hopefully the better I’ll be as president.

Of course, as the President suggested, not everyone agrees with his assessment of what Christianity requires in this respect — the US Conference of Catholic Bishops, for example. Still, in stating that his religious faith helped determine his position, the President is well within the American tradition of political leaders who explain their policies in religious terms.

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The National Day of Prayer

Today, by federal statute, is the National Day of Prayer. Many of our foreign readers will find it odd, but the U.S. Code requires that the President issue an annual proclamation designating the first Thursday in May as a day on which Americans “may turn to God in prayer and meditation at churches, in groups, and as individuals.” Note the phrasing. The President is not to direct people to pray — that would be unconstitutional, obviously — or even to request that they pray. He is required only to designate the day as one on which Americans may pray. And meditate. But not “pray or meditate.”  Lots of lawyers’ hours must have gone into all this.

Anyway. Although the statute only dates from the 1950s, the practice of declaring national days of prayer goes back to President Washington. Consistent with the American tradition of public religion, the prayers have tended to be non-sectarian. In fact, a group calling itself the “National Day of Prayer Task Force,” which promotes observance of the day around the country, highlights its  “Judeo-Christian” character. On Monday, President Obama issued this year’s proclamation, which invites Americans to pray and “give thanks for our democracy that . . . protects the religious freedom of all people to pray, worship, or abstain according to the dictates of their conscience.”

That’s about as inclusive as you can get in a National Day of Prayer proclamation, but not everyone is satisfied. The Freedom from Religion Foundation brought suit a while ago to declare the National Day of Prayer unconstitutional. The Seventh Circuit dismissed the case on standing grounds (no injury). This year, the American Humanist Association has declared a “National Day of Reason” to compete with the “National Day of Prayer.” I suppose reasonable theists can observe both.

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Mojave Desert Cross Case Settles

On Monday, a federal district court in California approved a settlement ending the long-running litigation in Salazar v. Buono, the Mojave Desert Cross case. The case, the most recent Supreme Court ruling on public religious displays, involves a Latin cross on a war memorial on federal land in the Mojave Desert. After a district court enjoined the government from displaying the cross as a violation of the Establishment Clause, the government attempted to convey the land to a private association, the Veterans of Foreign Wars. The district court ruled that the conveyance violated the terms of the injunction, but, in 2010, a divided Supreme Court reversed and remanded for further consideration.

This week’s settlement allows the government to convey the land to the VFW in exchange for other property. The National Park Service will install and maintain a fence with signage indicating that the land is privately owned and maintain roads allowing for “safe and suitable” public access. The government will not replace the cross, which someone stole after the Supreme Court’s decision, but the new owners are of course free to do so, and in fact, the VFW has a cross ready. The government will restore the plaque designating the spot as a national war memorial and has reserved the right to have Park Rangers explain to visitors what they’re looking at. H/T:  Religion Clause.

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Walter Russell Mead on Religious Ignorance in the Media

In a democratic society, law and public policy follow, however imperfectly, public opinion. That’s why it’s important that journalists, who do so much to shape public opinion, cover stories thoroughly and correctly. When it comes to covering religion, however, Walter Russell Mead writes this weekend, the mainstream media’s ignorance dramatically skews things:

False panics over alleged theocracies lurking under every bush (haha), inability to analyze or cover major news stories involving Islam, and a persistent overestimation of global support for the secular rights-driven agenda that serves much of the MSM as a guiding ideology in lieu of religion can all be traced back to the religious illiteracy of so many journalists today. The MSM covers US politics less effectively than it could and missed the boat on the Arab Spring primarily because it has so little grasp of what religion is and how it works.

There’s lots of evidence for what Mead alleges. A couple of years ago, I heard a BBC announcer refer to Easter as the day on which Christians commemorate the death of Jesus. I’m not sure what can be done, except to encourage journalists to learn more about religion and cover it carefully. Sites like Mead’s, FaithWorld, and GetReligion are helpful correctives.

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Happy Easter and Historicizing Religious Freedom

Happy Easter to everyone! (and happy Passover as well!)

Before anything else, I want to thank Marc for inviting me to guest blog for the month. I have been a follower of this blog since its founding and found it especially useful for keeping up with the latest news/events and scholarship involving religious freedom.

What I will blog about for the rest of the month would be snippets of arguments and claims that I make in my ongoing dissertation, as well as float some ideas about law and religion in general. Hopefully some or any of these could jumpstart an interesting conversation. At the very least, I aim to give my own take on some issues which I feel are obscured by the politics and culture wars necessarily involved when it comes to issues of what I would call public religion.

Public religion, in the sense that it is a kind of religion deployed for public purposes – as a matter of identity and social practice, is making a comeback as news and events plus the incredible volume of academic and popular writing on the subject suggests. (As an aside, I was involved in the organization of a graduate student conference with the theme Religion and Civilization in International History where we heard fascinating papers on the subject) When it comes to law and religion, at least from the American side of things, most of the writing on the subject however, tend to coalesce around stories on various Supreme Court cases involving the Religion Clauses. But the story of American religious freedom has an external dimension as well, in terms of its centuries-old tradition of promoting democracy, human rights and religious freedom abroad. (I believe this is in fact partly a subject of ongoing investigation and research at the Politics of Religious Freedom project). In fact, it has done so through law in many instances, drawing on prevailing domestic ideas and motivations at particular times. Many people are not familiar with the extent of American involvement in the protection of religious freedom abroad, and this is the story that my dissertation, The Law on Religious Liberty and the Rise of American Power, seeks to tell.

I don’t intend to give a summary of the dissertation but what I want to start my blogging stint with is what I think are the normative implications of historicizing religious freedom in this way. What does such a historical reframing achieve? One implication I can think of at the moment is that it does support in part the frequent contention that Western notions of religious freedom which found their way to contemporary legal structures and institutions are incompatible with non-Western conceptions of this principle. It supports the part where Western ideas did indeed inform religious freedom as we understand it and as we enforce it today, e.g. this post by Elizabeth Shakman Hurd over at Immanent Frame which closely studies Talal Asad’s recent contribution to the Cambridge Companion to Religious Studies, is one version of this claim, but not the part necessarily about its incompatibility. It might not be obvious but much is at stake when it comes to deciding how to interpret the history of religious freedom. When courts and government actors act in accordance with a single overarching narrative, there are practical consequences. And so assuming such a history, even if we  concede that the story of international religious freedom is about imperial tendencies and asymmetric exercises of power, can religious freedom nevertheless be saved?

More on that and other things in the next post.

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“Big Mountain Jesus” Stays for Now

An update on a story we covered last November. The Forest Service this week approved a permit for the continued display of a six-foot statute, known as “Big Mountain Jesus,” on federal land in Big Mountain, Montana. The statute has been there since 1954. Its sponsor, the Knights of Columbus, says that the statue, which replicates statues seen by American soldiers fighting in Europe in World War II, serves as a war memorial. The Forest Service had decided last August not to renew the permit, but reversed itself this week in response to public outcry. The Freedom from Religion Foundation, which argued that renewal of the permit would violate the Establishment Clause, has announced plans to file a federal lawsuit as early as this week.

Cases about public religious displays are notoriously unpredictable. The Supreme Court has indicated that such displays cannot violate the government’s duty of religious neutrality, but the Justices have defined that duty in various, and not completely consistent, ways. Categorical tests are not very helpful; cases turn on specific facts and historical context. With respect to Big Mountain Jesus, it will be interesting to see which interpretation of the statue prevails: is the statue really a war memorial whose religious associations are only incidental, or is it, as FFRF argues, an unconstitutional sectarian endorsement? Watch this space for further developments.