I am quoted in this CNBC story on the Bladensburg Cross case up for oral argument next week. The author, Tucker Higgins, put together a nice piece (one tiny quibble: Town of Greece v. Galloway was not decided on the basis of the coercion approach…that part of the opinion did not command a majority) and was good enough to reference and link to this article of mine on religion and the Roberts Court from a few years ago.
For a project I’m now working on, I’m reading through the church-state writing of the likes of George Washington, John Adams, and Theophilus Parsons, and it is striking how different it is from what one sees in the writing of Thomas Jefferson. Here is a new critical study of Jefferson, Thomas Jefferson: A Modern Prometheus (Cambridge University Press), by Wilson Jeremiah Moses, part of which involves a comparative evaluation of Jefferson against some of these other statesmen. Looks like a must-read.
“In Thomas Jefferson: A Modern Prometheus, Wilson Jeremiah Moses provides a critical assessment of Thomas Jefferson and the Jeffersonian influence. Scholars of American history have long debated the legacy of Thomas Jefferson. However, Moses deviates from other interpretations by positioning himself within an older, ‘Federalist’ historiographic tradition, offering vigorous and insightful commentary on Jefferson, the man and the myth. Moses specifically focuses on Jefferson’s complexities and contradictions. Measuring Jefferson’s political accomplishments, intellectual contributions, moral character, and other distinguishing traits against contemporaries like George Washington and Benjamin Franklin but also figures like Machiavelli and Frederick the Great, Moses contends that Jefferson fell short of the greatness of others. Yet amid his criticism of Jefferson, Moses paints him as a cunning strategist, an impressive intellectual, and a consummate pragmatist who continually reformulated his ideas in a universe that he accurately recognized to be unstable, capricious, and treacherous.”
Here are some important law-and-religion news stories from around the web:
- The Supreme Court, in its denial of cert, kept in place the Fifth Circuit’s decision preventing abortion groups from subpoenaing Texas’ Catholic bishops in order to discover internal deliberations regarding abortion.
- The Indiana legislature is considering a bill that would allow public high schools to count time spent on optional religious instruction as academic credit, a change from the original version of the bill which would have required schools to display “In God We Trust” in all classrooms.
- A Christian woman refused to do a lesbian couple’s taxes after finding out they got married in July and were submitting their taxes jointly.
- A lawsuit filed by the Christian Fellowship Center of New York alleges the village of Canton’s zoning rules violate a federal law that prohibits discrimination against religious institutions.
- The Baltimore City Council approved an outside legal contract to handle religious lawsuits pertaining to zoning issues that purportedly blocked residents from practicing their religion.
- A federal judge in Tennessee allowed the founders of a Pagan temple to move ahead with their RLUIPA claim and their claim that they are not a “church or similar place of worship” as used in the city’s zoning ordinance.
- Colorado Catholic dioceses submit to voluntary sex abuse review by a former federal prosecutor, and the church has agreed to pay an unlimited amount of reparations to victims.
- The Iowa Senate is moving forward on a bill that would require courts to employ strict scrutiny to cases involving religion.
- The Supreme Court denied cert in a RFRA challenge brought by a group of nuns that challenged a natural gas pipeline being built through their land in Pennsylvania as contrary to their 2005 Land Ethic holding all creation is sacred.
- The Southern Poverty Law Center released a report Wednesday that the number of hate groups in the United States is up thirty percent in the last four years, which it tied directly to Donald Trump’s presidency.
- Hoda Muthana, an Alabama woman who joined ISIS, wishes to return the United States, according to a lawyer for her family.
- New York Cardinal Timothy Dolan held a press conference highlighting options available to pregnant mothers in the wake of the state’s new Reproductive Health Act.
- French President Macron promises to act as almost 100 graves were vandalized at a Jewish cemetery in eastern France hours before nationwide rallies denouncing anti-Semitism.
Here’s what appears to be a generally Rawls-infused account of how to go along and get along amidst our divisions today. The author calls for making distinctions between what belongs to the genuinely political and what doesn’t, and is instead “playful.” Martha Nussbaum has a supporting preface. The book is Living With Hate in American Politics and Religion: How Popular Culture Can Defuse Intractable Differences (Columbia University Press), by Jeffrey Israel.
“In the United States, people are deeply divided along lines of race, class, political party, gender, sexuality, and religion. Many believe that historical grievances must eventually be left behind in the interest of progress toward a more just and unified society. But too much in American history is unforgivable and cannot be forgotten. How then can we imagine a way to live together that does not expect people to let go of their entrenched resentments?
Living with Hate in American Politics and Religion offers an innovative argument for the power of playfulness in popular culture to make our capacity for coexistence imaginable. Jeffrey Israel explores how people from different backgrounds can pursue justice together, even as they play with their divisive grudges, prejudices, and desires in their cultural lives. Israel calls on us to distinguish between what belongs in a raucous “domain of play” and what belongs in the domain of the political. He builds on the thought of John Rawls and Martha Nussbaum to defend the liberal tradition against challenges posed by Frantz Fanon from the left and Leo Strauss from the right. In provocative readings of Lenny Bruce’s stand-up comedy, Philip Roth’s Portnoy’s Complaint, and Norman Lear’s All in the Family, Israel argues that postwar Jewish American popular culture offers potent and fruitful examples of playing with fraught emotions. Living with Hate in American Politics and Religion is a powerful vision of what it means to live with others without forgiving or forgetting.”
From the great Richard Helmholz comes this new book on ecclesiastical lawyers in the medieval and early Renaissance periods before the trouble started (for them, at least) in the Reformation. Looks very interesting. The book is The Profession of Ecclesiastical Lawyers: A Historical Introduction (Cambridge University Press), by R.H. Helmholz.
“Historians of the English legal profession have written comparatively little about the lawyers who served in the courts of the Church. This volume fills a gap; it investigates the law by which they were governed and discusses their careers in legal practice. Using sources drawn from the Roman and canon laws and also from manuscripts found in local archives, R. H. Helmholz brings together previously published work and new evidence about the professional careers of these men. His book covers the careers of many lesser known ecclesiastical lawyers, dealing with their education in law, their reaction to the coming of the Reformation, and their relationship with English common lawyers on the eve of the Civil War. Making connections with the European ius commune, this volume will be of special interest to English and Continental legal historians, as well as to students of the relationship between law and religion.”
Here is a new book concerning international incidents in which free speech rights run up against terrorism undertaken in the name of religion. The book is Theoterrorism v. Freedom of Speech: From Incident to Precedent (Amsterdam University Press), by religion scholar Paul Cliteur and author-editor of the very interesting The Fall and Rise of Blasphemy Laws.
“The Rushdie Affair, the Danish Cartoon Affair, the assault on Charlie Hebdo, and the earlier Carrell Affair, are examples of religious fanatics’ extreme reactions to religious satire and criticism. Perpetrators of these actions consider themselves as true believers. This book aims to understand their motives by means of the concept of theoterrorism: terrorism grounded in religious zealotry.”
In this episode of Legal Spirits, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss the Court’s recent denial of cert in Kennedy v. Bremerton School District, a case in which the Ninth Circuit ruled that a public high school football coach could be fired for praying on the 50-yard line after each game. Movsesian and DeGirolami explain why a seemingly offhand comment by Justice Alito might signal a change in the Court’s free exercise jurisprudence, and whether, even under current doctrine, the coach might have had a legal right to pray.
Here are some important law-and-religion news stories from around the web:
- The Second Circuit denied a rehearing en banc of Tanvir v. Tanzin, which held that RFRA allows plaintiffs to recover money damages against federal officials sued in their individual capacities.
- Former Cardinal Theodore McCarrick was defrocked by the Vatican after being found guilty of sexually abusing minors and adult seminarians by the Church’s Congregation for the Doctrine of the Faith.
- The Sixth Circuit held that two prison chaplains can be sued for not allowing inmate Derrick Maye to participate in Eid al-Fitr, a Muslim religious holiday that marks the end of Ramadan.
- Mississippi’s legislature passed bills that ban abortions as soon as a fetal heartbeat is detected.
- A federal judge in California ruled that the state must pay $399,000 in legal fees to three pro-life pregnancy centers and a law firm after the Supreme Court last year invalidated a state law requiring pregnancy centers to promote abortion.
- Catholic bishops and other U.S. prelates have denounced President Trump’s declaration of a national emergency so he can construct a barrier along the southern border.
- Kansas lawmakers have introduced the Marriage and Constitution Restoration Act, which seeks to classify the LGBTQ community as a “secular humanist” religion, restrict gay marriages, and permit conversion therapy.
- Arizona Sen. Juan Mendez (D) introduced a bill that seeks to bar the state from selling specialty license plates that read “In God We Trust” because a portion of the proceeds benefits the Alliance Defending Freedom, a non-profit, religious-freedom legal interest group.
- The Brooklyn Catholic Diocese released a list of 100+ priests who have been credibly accused of sexually abusing children.
- Michael Hari, the alleged ringleader of an Illinois-based militia, pleaded not guilty in the 2017 bombing of the Dar al-Farooq Islamic Center in Bloomington, Minnesota.
- A Catholic woman filed a lawsuit against Miracle Hill Ministries, accusing the federally funded South Carolina foster agency of discriminating against non-Protestants.
- A security guard was arrested after shooting a transgender Youtube personality outside a synagogue and Hebrew girls school in the Fairfax District of Los Angeles, California.
- Kentucky’s House of Representatives passed a bill that seeks to ban most abortions in the event Roe v. Wade is overturned.
- Tennessee Attorney General Herbert Slatery issued an opinion that the state’s law outlining sentencing enhancements for hate crimes covers transgender individuals.
- The South Korean Bishops Conference has asked the nation’s Constitutional Court to consider whether the death penalty violates South Korea’s constitution.
- New Jersey’s five Catholic dioceses released the names of 189 clergy members who have been credibly accused of sexually assaulting minors.
- Kentucky’s Senate passed a bill that would ban abortions once a baby’s heartbeat is detected.
- A southern Indiana school superintendent is facing criticism for sending letters to 20 Christian churches asking them to pray for him as he leads the district and for the safety of students and staff.
“Prohibition,” as I’ve had occasion to observe before, is a law school course that could teach itself. There are regulatory, church-state, jurisprudential, and constitutional dimensions to be explored. Probably others too. Here’s a new book that emphasizes the national-state federalism dimension: Prohibition, the Constitution, and States’ Rights (University of Chicago Press), by Sean Beienburg.
“Colorado’s legalization of marijuana spurred intense debate about the extent to which the Constitution preempts state-enacted laws and statutes. Colorado’s legal cannabis program generated a strange scenario in which many politicians, including many who freely invoke the Tenth Amendment, seemed to be attacking the progressive state for asserting states’ rights. Unusual as this may seem, this has happened before—in the early part of the twentieth century, as America concluded a decades-long struggle over the suppression of alcohol during Prohibition.
Sean Beienburg recovers a largely forgotten constitutional debate, revealing how Prohibition became a battlefield on which skirmishes of American political development, including the debate over federalism and states’ rights, were fought. Beienburg focuses on the massive extension of federal authority involved in Prohibition and the passage of the Eighteenth Amendment, describing the roles and reactions of not just Congress, the presidents, and the Supreme Court but political actors throughout the states, who jockeyed with one another to claim fidelity to the Tenth Amendment while reviling nationalism and nullification alike. The most comprehensive treatment of the constitutional debate over Prohibition to date, the book concludes with a discussion of the parallels and differences between Prohibition in the 1920s and debates about the legalization of marijuana today.”
To close out the week’s books, here is a new collection from Routledge on early modern Europe, A Sourcebook of Early Modern European History, edited by Ute Lotz-Heumann (University of Arizona). Many foundational concepts in American church-state relations date from this period, and the book addresses a number of subjects that law and religion scholars will find interesting. Here’s the publisher’s description:
A Sourcebook of Early Modern European History not only provides instructors with primary sources of a manageable length and translated into English, it also offers students a concise explanation of their context and meaning.
By covering different areas of early modern life through the lens of contemporaries’ experiences, this book serves as an introduction to the early modern European world in a way that a narrative history of the period cannot. It is divided into six subject areas, each comprising between twelve and fourteen explicated sources: I. The fabric of communities: Social interaction and social control; II. Social spaces: Experiencing and negotiating encounters; III. Propriety, legitimacy, fidelity: Gender, marriage, and the family; IV. Expressions of faith: Official and popular religion; V. Realms intertwined: Religion and politics; and, VI. Defining the religious other: Identities and conflicts.
Spanning the period from c. 1450 to c. 1750 and including primary sources from across early modern Europe, from Spain to Transylvania, Italy to Iceland, and the European colonies, this book provides an excellent sense of the diversity and complexity of human experience during this time whilst drawing attention to key themes and events of the period. It is ideal for students of early modern history, and of early modern Europe in particular.