Brettschneider: An Expansive Establishment Clause, Too

All this month, we are hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, Corey Brettschneider (Brown) responds to Muñoz. For other posts in this series, please click here

It is my pleasure to reply to Professor Muñoz’s fine article and excellent post. It is also a pleasure to join such a robust conversation about the Founders’ ideas about religious freedom and their implications for contemporary jurisprudence. Muñoz argues that the Founders held a jurisdictional view of religious freedom that divided the divine authority over religious worship and protected it against secular authority. The jurisdictional view would also protect a wide terrain of secular authority from religious intervention. So far, commentators have focused on the implications of Muñoz’s jurisdictional view for the Court’s contemporary Free Exercise jurisprudence. I want to refocus on the implications of Muñoz’s account for Establishment jurisprudence. While Muñoz might be correct that the Founders’ vision pushes toward Smith rather than Sherbert, and thus suggests doctrine on the weaker end of free exercise, I suggest why his account recommends an expansive reading of the Establishment Clause.

In his article, Muñoz argues the Founders understood the Free Exercise Clause to ban the state from regulating worship. It follows that the limits on secular authority in matters of worship provide government a very expansive authority over secular matters. The flip side  of the limited jurisdiction government has in matters of worship is a vast limit on religious influence over secular lawmaking. This limit has important implications for the breadth of the Establishment Clause. I want to push Munoz to think about how the jurisdictional view would address two fundamental jurisprudential problems. The first concerns third party harm and the second concerns the Establishment Clause requirement of secular purpose.

In Burwell v. Hobby Lobby, the Supreme Court held that the Religious Freedom Restoration Act required an exemption to a federal requirement that closely held for-profit corporations provide birth control coverage to their employees even when those corporations object to providing it on religious grounds. Jack Rakove rightly suggests that the notion of third party harm might be directly relevant to the Founders’ view. In the Hobby Lobby case, he argues, the rights of a potential beneficiary of birth control might be violated by the imposition of a religiously-based refusal to provide a benefit by an Continue reading

Brown, “Arguing Islam after the Revival of Arab Politics”

In November, Oxford University Press will release Arguing Islam after the Revival of Arab Politics by Nathan J. Brown (George Washington University). The publisher’s description follows:

arguing-islamFor much of its modern history, a combination of deep nervousness and profound lack of interest seemed to inhibit or even prevent regular political conversations in the Arab World. Public spaces were devoid of political discussions: public squares in major cities showed no signs of assemblies for political purposes. If one picked up a newspaper, one was more likely to read about the comings and goings of officials rather than any sort of comprehensive political coverage.

In the wake of the Arab Spring, newer media and older forms (such as the daily newspaper) have gradually made it easier for Middle East countries to participate in public debates from a variety of ideological perspectives. The state retreat from social welfare commitments have opened opportunities for a host of new informal groups and organizations to operate in areas previously dominated by officially-controlled bodies. These trends have obviously been noticed by social scientists, but scholars who focus on the large-scale political changes tend to edge into a celebratory tone: the changes are seen as potentially democratizing.

Arguing Islam after the Revival of Arab Politics presents an understanding the “revived” forms of Arab politics as they really are, and does not speculate about the democratic future these changes could signal. In particular, this book examines various sites of Arab public life to explore how politics operates. Four kinds of public spheres are brought into focus: small group discussions that straddle the public/private divide (such as diwaniyyas in Kuwait or piety groups in Egypt), public spaces of assembly (such as public squares and mosques), media (both new and old), and parliaments (an institution etymologically founded in philosophizing and pontificating rather than legislating). Further, the author gives due attention to the ways in which these spheres interact to explore how these gradations, affirmations, and subversions of hierarchy, status, and power make up the current political landscape of the Middle East.

The resulting work is one that is able to bridge disciplinary boundaries, offering understandings of the new political sphere. Designed to speak beyond a scholarly audience, this volume will contribute to broader public understandings of Islam in practice and of Arab politics as those who participate in it experience it.

Caravale, “Preaching and Inquisition in Renaissance Italy”

In November, Brill Publishers will release Preaching and Inquisition in Renaissance Italy: Words on Trial by Giorgio Caravale (University of Rome). The publisher’s description follows:

Preaching and Inquisition in Renaissance Italy.jpgAs has been well documented, the printed word was an essential vehicle for the transmission of reformed theology, and one that has left a tangible record for historians to explore. Yet as contemporaries well recognized, books were only a part of the process. It was the spoken word – and especially preaching – that created the demand for printed works. Sermons were the plough that prepared the ground for Lutheran literature to flourish. In order to better understand the relationship between oral sermons and the spread of protestant ideas, Preaching and Inquisition in Renaissance Italy draws upon the records of the Roman Inquisition to see how that institution confronted the challenges of reform on the Italian peninsula in the sixteenth century. At the heart of its subject matter is the increasingly sophisticated rhetorical skill of heterodox preachers at the time, who achieved their ends by silence and omission rather than positive affirmations of Lutheran tenets.

Event Announcement: National Moot Court Competition in Law and Religion

On April 2 and 3, 2017, the Touro Law Center will host its fourth annual National Moot Court Competition in Law and Religion. Those interested can obtain more information about the event and can register for it here until November 30, 2016. Touro’s description of the event follows:

Touro Law Center is pleased to announce our 4th Annual National Moot Court Competition in Law and Religion. The semi-final and final rounds of the competition will take place at the Alfonse D’Amato Federal Courthouse, located directly across the street from Touro Law Center in Central Islip, NY. Awards will be presented to individuals and teams for first and second place, for top three best briefs, and top six best oralists. Accommodations will be available within walking distance of the law school and the courthouse. Touro Law is located within an hour of New York City and the metropolitan airports. United States District Court Judges and Magistrate Judges of the Eastern District of New York in Central Islip will be judging the semi-final rounds.

Robinson, “Islamic Civilization in Thirty Lives”

In November, the University of California Press will release Islamic Civilization in Thirty Lives: The First 1,000 Years by Chase F. Robinson (City University of New York). The publisher’s description follows:

islamic-civilization-in-thirty-livesReligious thinkers, political leaders, lawmakers, writers, and philosophers have shaped the 1,400-year-long development of the world’s second-largest religion. But who were these people? What do we know of their lives and the ways in which they influenced their societies?

In Islamic Civilization in Thirty Lives, the distinguished historian of Islam Chase F. Robinson draws on the long tradition in Muslim scholarship of commemorating in writing the biographies of notable figures, but he weaves these ambitious lives together to create a rich narrative of Islamic civilization, from the Prophet Muhammad in the seventh century to the era of the world conquerer Timur and the Ottoman Sultan Mehmed II in the fifteenth.

Beginning in Islam’s heartland, Mecca, and ranging from North Africa and Iberia in the west to Central and East Asia, Robinson not only traces the rise and fall of Islamic states through the biographies of political and military leaders who worked to secure peace or expand their power, but also discusses those who developed Islamic law, scientific thought, and literature. What emerges is a fascinating portrait of rich and diverse Islamic societies. Alongside the famous characters who colored this landscape—including Muhammad’s cousin ’Ali; the Crusader-era hero Saladin; and the poet Rumi—are less well-known figures, such as Ibn Fadlan, whose travels in Eurasia brought fascinating first-hand accounts of the Volga Vikings to the Abbasid Caliph; the eleventh-century Karima al-Marwaziyya, a woman scholar of Prophetic traditions; and Abu al-Qasim Ramisht, a twelfth-century merchant millionaire.

An illuminating read for anyone interested in learning more about this often-misunderstood civilization, this book creates a vivid picture of life in all arenas of the pre-modern Muslim world.

“Melania” (Chin and Schroeder, eds.)

In October, the University of California Press will release Melania: Early Christianity through the Life of One Family edited by Catherine M. Chin (University of California, Davis) and Caroline T. Schroeder (University of the Pacific). The publisher’s description follows:

melaniaMelania the Elder and her granddaughter Melania the Younger were major figures in early Christian history, using their wealth, status, and forceful personalities to shape the development of nearly every aspect of the religion we now know as Christianity. This volume examines their influence on late antique  Christianity and provides an insightful portrait of their legacies in the modern world. Departing from the traditionally patriarchal view, Melania gives a poignant and sometimes surprising account of how the rise of Christian institutions in the Roman Empire shaped our understanding of women’s roles in the larger world.

An Awful Report by the USCCR

I have a post up at Law and Liberty on the recent report of the U.S. Commission on Civil Rights, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” It is not positive. A bit:

The recommendations begin with the ominous observation that civil rights protections ensuring nondiscrimination “are of preeminent importance in American jurisprudence.” Preeminent over what, exactly? That quickly becomes crystal clear: over religious freedom. Supreme Court decisions that the commissioners celebrate for reflecting this preeminence include Christian Legal Society v. Martinez (2011), EEOC v. Abercrombie and Fitch (2015), and Obergefell v. Hodges (2015). It is telling that the commission includes Abercrombie and Fitchan utterly unremarkable case involving the interpretation of the standard for an employer’s state of mind in a disparate treatment action under Title VII—because it thereby squeezes and deforms religious freedom into the only framework it can accept or understand: nondiscrimination.

After this, we are treated to the following hodgepodge of inanity: “Schools must be allowed to insist on inclusive values.” Apparently this is meant as a defense of Martinez; but it ought to read, “schools must be allowed to insist that everybody espouse the values we have canonized.”

The commissioners go on to say that “throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly.”Really? Is this statement made in promotion of “peaceful coexistence” and “reconciliation”? It sounds more like a crude bit of pseudo-history capped by a fairly direct threat.

 

Rouse, Jackson, and Frederick, “Televised Redemption”

In November, New York University Press will release Televised Redemption: Black Religious Media and Racial Empowerment by Carolyn Moxley Rouse (Princeton), John L. Jackson, Jr. (University of Pennsylvania), and Marla F. Frederick (Harvard). The publisher’s description follows:

Televised Redemption.jpgThe institutional structures of white supremacy—slavery, Jim Crow laws, convict leasing, and mass incarceration—require a commonsense belief that black people lack the moral and intellectual capacities of white people. It is through this lens of belief that racial exclusions have been justified and reproduced in the United States. Televised Redemption argues that African American religious media has long played a key role in humanizing the race by unabashedly claiming that blacks are endowed by God with the same gifts of goodness and reason as whites—if not more, thereby legitimizing black Americans’ rights to citizenship.

If racism is a form of perception, then religious media has not only altered how others perceive blacks, but has also altered how blacks perceive themselves. Televised Redemption argues that black religious media has provided black Americans with new conceptual and practical tools for how to be in the world, and changed how black people are made intelligible and recognizable as moral citizens. In order to make these claims to black racial equality, this media has encouraged dispositional changes in adherents that were at times empowering and at other times repressive. From Christian televangelism to Muslim periodicals to Hebrew Israelite radio, Televised Redemption explores the complicated but critical redemptive history of African American religious media.

“Rosa Manus (1884-1942)” (Everard and de Haan, eds.)

In November, Brill Publishers will release Rosa Manus: The International Life and Legacy of a Jewish Dutch Feminist edited by Myriam Everard and Francisca de Haan (Central European University). The publisher’s description follows:

rosa-manusRosa Manus (1881–1942) uncovers the life of Dutch feminist and peace activist Rosa Manus, co-founder of the Women’s International League for Peace and Freedom, vice-president of the International Alliance of Women, and founding president of the International Archives for the Women’s Movement (IAV) in Amsterdam, revealing its rootedness in Manus’s radical secular Jewishness. Because the Nazis looted the IAV (1940) including Manus’s large personal archive, and subsequently arrested (1941) and murdered her (1942), Rosa Manus has been almost unknown to later generations. This collective biography offers essays based on new and in-depth research on pictures and documents from her archives, returned to Amsterdam in 2003, as well as other primary sources. It thus restores Manus to the history from which the Nazis attempted to erase her.

Contributors include: Margot Badran, Mineke Bosch, Ellen Carol DuBois, Myriam Everard, Karen Garner, Dagmar Wernitznig, and Annika Wilmers.

Bonino, “Muslims in Scotland”

In November, Edinburgh University Press will release Muslims in Scotland: The Making of Community in a Post-9/11 World by Stefano Bonino (Northumbria University). The publisher’s description follows:

muslims-in-scotlandThe experience of being a Muslim in Scotland today is shaped by the global and national post-9/11 shift in public attitudes towards Muslims, and is infused by the particular social, cultural and political Scottish ways of dealing with minorities, diversity and integration. This book explores the settlement and development of Muslim communities in Scotland, highlighting the ongoing changes in their structure and the move towards a Scottish experience of being Muslim. This experience combines a sense of civic and social belonging to Scotland with a strong religious and ideological commitment to Islam.

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