Mark and I have this podcast on the oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which occurred last week at the Supreme Court. The podcast covers the central issues that the justices asked about and discussed.
Last month in New York, Sir Roger Scruton gave the keynote speech at our second Tradition Project conference, “Tradition, Culture, and Citizenship.” A video of Sir Roger’s speech is now available below:
Enlightenment secularism seems to have a concentrating effect on religion. In response to the challenge secularism poses, more moderate expressions of religion fade away, while more insular, “extreme” communities come into existence and thrive. Perhaps, as secularism occupies more and more space in a culture, only those religious communities that consciously set their face against it can survive.
A new book from Princeton University Press, Hasidism: A New History, by historian David Biale and others, discusses the history of the Jewish movement, particularly, how the movement formed in response to European secularism. Looks very interesting. Here’s the description from the Princeton website:
The first comprehensive history of the pietistic movement that shaped modern Judaism
This is the first comprehensive history of the pietistic movement that shaped modern Judaism. The book’s unique blend of intellectual, religious, and social history offers perspectives on the movement’s leaders as well as its followers, and demonstrates that, far from being a throwback to the Middle Ages, Hasidism is a product of modernity that forged its identity as a radical alternative to the secular world.
Hasidism originated in southeastern Poland, in mystical circles centered on the figure of Israel Ba’al Shem Tov, but it was only after his death in 1760 that a movement began to spread. Challenging the notion that Hasidism ceased to be a creative movement after the eighteenth century, this book argues that its first golden age was in the nineteenth century, when it conquered new territory, won a mass following, and became a mainstay of Jewish Orthodoxy. World War I, the Russian Revolution, and the Holocaust decimated eastern European Hasidism. But following World War II, the movement enjoyed a second golden age, growing exponentially. Today, it is witnessing a remarkable renaissance in Israel, the United States, and other countries around the world.
Written by an international team of scholars, Hasidism is a must-read for anyone seeking to understand this vibrant and influential modern Jewish movement.
Here are some important law-and-religion news stories from around the web:
- The man who injured himself and three others in an attempted terrorist attack in New York City was motivated by Islamic State propaganda videos. He now faces federal and state charges.
- After receiving a complaint from a secular advocacy organization, a South Carolina school district has suspended a mentoring program led by a Christian mentor.
- A federal court in Missouri has dismissed an Establishment Clause challenge to the tax code; the plaintiff had contended that the code established a religion of “taxism.”
- A federal court in California held oral arguments in a case in which the state is challenging changes to the birth control mandate made by the Trump Administration.
- The government of Arkansas will move forward with plans to install a Ten Commandments monument on the grounds of the state capitol after a previous monument was destroyed only 24 hours after it was installed.
- The University of Iowa is facing a legal challenge after it suspended a Christian group which required those in leadership positions to sign a statement endorsing traditional Christian sexual moral norms.
- A newly-released report shows that the Catholic Archdiocese of New York paid $40 million to settle almost 200 clergy abuse claims.
- The Supreme Court has declined to review a case that could have allowed it to decide whether federal civil rights legislation bans workplace discrimination on the basis of sexual orientation, although another case may allow the Court to rule on the issue in the 2019 term.
Law features much more prominently in the life of Islam than Christianity. This was, in some ways, a comparative advantage for the new faith. At least the leaders of Christian communities perceived it as such: in the early centuries of their encounter with Islam, Christian leaders often identified the influence the fiqh courts had in encouraging conversions within their communities. One medieval Armenian cleric, Mkhitar Gosh, even complied a Christian law code to compete with fiqh, so that Armenian Christians would have less temptation to resort to Islamic courts.
A new collection of essays from Harvard University Press, Justice and Leadership in Early Islamic Courts, addresses the history of the early Islamic courts. The editors are Intisar Rabb (Harvard Law School) and Abigail Krasner Balbale (Bard Graduate Center). Here’s the description from the Harvard website:
This book presents an in-depth exploration of the administration of justice during Islam’s founding period, 632–1250 CE. Inspired by the scholarship of Roy Parviz Mottahedeh and composed in his honor, this volume brings together ten leading scholars of Islamic law to examine the history of early Islamic courts. This approach draws attention to both how and why the courts and the people associated with them functioned in early Islamic societies: When a dispute occurred, what happened in the courts? How did judges conceive of justice and their role in it? When and how did they give attention to politics and procedure?
Each author draws on diverse sources that illuminate a broader and deeper vision of law and society than traditional legal literature alone can provide, including historical chronicles, biographical dictionaries, legal canons, exegetical works, and mirrors for princes. Altogether, the volume offers both a substantive intervention on early Islamic courts and on methods for studying legal history as social history. It illuminates the varied and dynamic legal landscapes stretching across early Islam, and maps new approaches to interdisciplinary legal history.
Alexander Hamilton had a tempestuous inner life, including with respect to religion. Devout as a child, skeptical as an adult, towards then end of his life he seems to have become an orthodox Christian. Whatever his internal views, his position with respect to the public importance of religion was clear. He drafted Washington’s Farewell Address, one of the most important texts in American history on the place of religion in public life, and even proposed a Christian Constitutional Society, to counter Jacobinism in the United States.
The Christian Constitutional Society is one of the issues addressed in a new, two-volume collection from Cambridge University Press, The Political Writings of Alexander Hamilton. The editors are Carson Holloway (Nebraska) and our own Tradition Project participant Bradford Wilson (Princeton). Looks very interesting. Here’s the publisher’s description:
Few of America’s founders influenced its political system more than Alexander Hamilton. He played a leading role in writing and ratifying the Constitution, was de facto leader of one of America’s first two political parties, and was influential in interpreting the scope of the national government’s constitutional powers. This comprehensive collection provides Hamilton’s most enduringly important political writings, covering his entire public career, from 1775 to his death in 1804. Readers are introduced to Hamilton – in his own words – as defender of the American cause, as an early proponent of a stronger national government, as a founder and protector of the American Constitution, as the nation’s first secretary of the treasury, as President George Washington’s trusted foreign policy advisor, and as a leader of the Federalist Party. Presented in a convenient two volume set, this book provides a unique insight into the political ideas of one of America’s leading founders; a must-have reference source.
Here are some important law-and-religion news stories from around the web:
- A federal judge in the District of Columbia has made a preliminary ruling upholding the right of the Metro to ban religious ads from subways and buses, citing safety concerns.
- A panel of Ninth Circuit judges and the full Fourth Circuit have heard oral arguments on their respective cases involving challenges to the Trump Administration’s latest travel ban; the Supreme Court previously lifted temporary restraining orders granted by district courts in both cases.
- The Catholic Church’s National Shrine of the Immaculate Conception in Washington, D.C. has been completed after almost 100 years of construction.
- An Oregon man has argued that he should not have to pay taxes because he claims that the federal government promotes abortion and that is incompatible with his religious beliefs.
- Three Texas churches challenging FEMA’s policy of not providing aid to certain religious institutions have lost their bid for a preliminary injunction.
For those who are interested, Fordham’s Orthodox Christian Studies Center has posted a video of last week’s panel on the the persecution of Mideast Christians, in which I participated, along with Sidney Griffith (Catholic University), James Skedros (Hellenic College/Holy Cross Seminary), and Samuel Tadros (Hudson Institute). Fordham’s George Demacopoulous served as moderator. Have a look:
Allow people to pose religious objections to generally-applicable laws, the argument goes, and you will end up with chaos, a world in which every person is a law unto himself. That argument carried the day twenty-seven years ago in Employment Division v. Smith, and resurfaced as recently as last week, during oral argument in Masterpiece Cakeshop. A new article by Stephanie Barclay (Becket) and Mark Rienzi (Catholic University-Columbus School of Law), “Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Objections,” maintains that the argument is overstated. The authors argue that religious accommodations are analogous to customary “as-applied” challenges in constitutional law, which have not destroyed the rule of law. Here’s the abstract:
In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.
Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.
The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.
Earlier this week, I had a post at the Liberty Law site on a recent Seventh Circuit decision in the GoTopless case, a challenge to Chicago’s public nudity ordinance, which forbids women, but not men, to remove their tops in public. The majority maintained that the city’s interest in promoting traditional norms justified the ban, but the dissent disagreed, arguing, among other things, that the city was simply promoting outdated cultural stereotypes.
Here’s an excerpt from my post on the case:
Judge Sykes’s opinion suggests that, even after cases like Obergefell, Lawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.
Second, Judge Rovner’s dissent suggesting that the law should follow biology rather than culture is misleading. Of course rules regarding public nudity are a cultural phenomenon. Culture is, among other things, a reflection on human biology; different cultures have different perceptions. In some cultures women appear topless in public; in others they do not. Allowing women to appear topless in public is not to substitute biology for culture, but rather to replace one culture with another—a culture that sees public nudity as appropriate for one that does not. Perhaps that is a good idea, but it has little to do with the objective facts of biology.
You can read the whole post here.
Just in time for the Christmas season is this book by Mike Henry, Christmas With the Presidents: Holiday Lessons for Today’s Kids From America’s Leaders (Rowman & Littlefield). If the blurb is to be credited, this looks like an overt piece of political-theological pedagogy masquerading as history. Perfect fare for the Friday fluff category.
Everyone celebrates the Christmas holidays in their own way, and that includes the President of the United States. Some have enjoyed large gatherings, while others took part in a quiet, relaxing atmosphere. This book takes a look at each of the country’s leaders approach to the year’s biggest holiday season, and some of the traditions they started.