Posted on by Marc O. DeGirolami

Classic Revisited: Tierney’s “Religion, Law, and the Growth of Constitutional Thought, 1150-1650”

Generally here at CLR Forum we provide notices of new or forthcoming books in law and religion.  But from time to time we will also revisit a classic in the law and religion canon.  The first in this occasional series is the magisterial Religion, Law, and the Growth of Constitutional Thought, 1150-1650 (CUP) by Brian Tierney.  Many other books of Professor Tierney’s could have been selected — his, The Idea of Natural Rights, or The Crisis of Church and State: 1050-1300, for example.  But if you are interested in the origins of constitutional thought, this book is a deeply learned and elegant treatment.

I once had the privilege of listening to Professor Tierney deliver a talk on Locke and natural law a couple of years ago.  One had the impression of a master surveying an intellectual continent from a great height, a man who was capable of capturing in just a few words the core of an enormous and complicated area of inquiry.  I will never forget it.  A description of the book follows.  — MOD 

To understand the growth of Western constitutional thought, we need to consider both ecclesiology and political theory, ideas about the Church as well as ideas about the state. In this book Professor Tierney traces the interplay between ecclesiastical and secular theories of government from the twelfth century to the seventeenth. He shows how ideas revived from the ancient past – Roman law, Aristotelian political philosophy, teachings of Church fathers – interacted with the realities of medieval society to produce distinctively new doctrines of constitutional government in Church and state. The study moves from the Roman and canon lawyers of the twelfth century to various thirteenth-century theories of consent; later sections consider fifteenth-century conciliarism and aspects of seventeenth-century constitutional thought. Fresh approaches are suggested to the work of several figures of central importance in the history of Western political theory. Among the authors considered are Thomas Aquinas, Marsilius of Padua, Jean Gerson, Nicholas of Cusa and Althusius, along with many lesser-known authors who contributed significantly to the growth of the Western constitutional tradition.

Posted on by Mark Movsesian

West’s “The Religion Clauses of the First Amendment”

Political scientist Ellis West (University of Richmond – Emeritus) has published The Religion Clauses of the First Amendment: Guarantees of States’ Rights?  (Lexington).  West argues for an individualist, as opposed to states’ rights, interpretation.  A description follows.  — MLM

The First Amendment of the U. S. Constitution begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Supreme Court has consistently held that these words, usually called the “religion clauses,” were meant to prohibit laws that violate religious freedom or equality. In recent years, however, a growing number of constitutional law and history scholars have contended that the religion clauses were not intended to protect religious freedom, but to reserve the states’ rights to legislate on. If the states’ rights interpretation of the religion clauses were correct and came to be accepted by the Supreme Court, it could profoundly affect the way the Court decides church-state cases involving state laws. It would allow the states to legislate on religion-even to violate religious freedom, discriminate on the basis of religion, or to establish a particular religion. This book carefully, thoroughly, and critically examines all the arguments for such an interpretation and, more importantly, all the available historical evidence. It concludes that the clauses were meant to protect religious freedom and equality of the individuals not the states’ rights.

Posted on by Mark Movsesian

Villaroman on Places of Worship

Noel Villaroman (Monash University) has posted a new piece, The Right to Establish and Maintain Places of Worship: The Development of Its Normative Content Under International Human Rights Law.  The abstract follows. — MLM

 The aim of this article is to track the evolution of the right to establish and maintain places of worship from its earliest appearance in human rights documents up to its current stature as a distinct human right. The article will draw primarily from the work of the authorities responsible for international human rights standard-setting, particularly with respect to the right to freedom of religion or belief. This article will argue that the right to establish and maintain places of worship, being a separate religious human right, has its own set of constituent elements that collectively make up the right’s normative content.

Posted on by Marc O. DeGirolami

Brownstein on Justice Stevens’s Religion Clause Jurisprudence

Alan Brownstein (UC Davis Law) has posted a very thoughtful piece, Continuing the Constitutional Dialogue: A Discussion of Justice Stevens’ Establishment Clause and Free Exercise Jurisprudence (forthcoming Northwestern L. Rev.).  I generally tend to see things in this pocket of constitutional law a little differently than did Justice Stevens, and this piece by Alan is a very good intellectual reconstruction suggesting also some unresolved areas about Justice Stevens’s approach that merit further discussion.  Well worth reading.  The abstract follows.  — MOD

This article examines Justice John Paul Stevens’ religion clause jurisprudence from the perspective of a continuing dialogue about the meaning of the Free Exercise Clause and the Establishment Clause. The term continuing dialogue suggests that even for as formidable and long-tenured a jurist as Justice Stevens, important questions remain open and unresolved. The article identifies the values and concerns reflected in the many opinions Justice Stevens authored or joined. Then it moves beyond those writings to discuss unanswered questions about Justice Stevens’ understanding of the two religion clauses. In particular, the article explores potential dissonance between Justice Stevens’ contrasting interpretation of the Establishment Clause and Free Exercise Clause. Read more

Posted on by Marc O. DeGirolami

Dougherty’s “Moral Dilemmas in Medieval Thought”

Perhaps not directly connected to law, but Moral Dilemmas in Medieval Thought: From Gratian to Aquinas (CUP) by M.V. Dougherty (Ohio Dominican University) looks interesting to me as I’ve written and am writing about moral and legal dilemmas in criminal law and the law of religious liberty.  The publisher’s description of this fascinating looking book follows.  — MOD

The history of moral dilemma theory often ignores the medieval period, overlooking the sophisticated theorizing by several thinkers who debated the existence of moral dilemmas from 1150 to 1450. In this book Michael V. Dougherty offers a rich and fascinating overview of the debates which were pursued by medieval philosophers, theologians and canon lawyers, illustrating his discussion with a diverse range of examples of the moral dilemmas which they considered. He shows that much of what seems particular to twentieth-century moral theory was well-known long ago – especially the view of some medieval thinkers that some forms of wrongdoing are inescapable, and their emphasis on the principle ‘choose the lesser of two evils’. His book will be valuable not only to advanced students and specialists of medieval thought, but also to those interested in the history of ethics.

Posted on by Marc O. DeGirolami

Ledewitz’s “Church, State, and the Crisis in American Secularism”

Continuing our secular/post-secular book theme, I want to note Church, State, and the Crisis in American Secularism (Indiana University Press) by Bruce Ledewitz (Duquesne Law).  Bruce brings a unique perspective to these important issues.  The publisher’s description follows.  — MOD

Since 1947, the Supreme Court has promised government neutrality toward religion, but in a nation whose motto is “In God We Trust” and which pledges allegiance to “One Nation under God,” the public square is anything but neutral—a paradox not lost on a rapidly secularizing America and a point of contention among those who identify all expressions of religion by government as threats to a free society. Yeshiva student turned secularist, Bruce Ledewitz seeks common ground for believers and nonbelievers regarding the law of church and state. He argues that allowing government to promote higher law values through the use of religious imagery would resolve the current impasse in the interpretation of the Establishment Clause. It would offer secularism an escape from its current tendency toward relativism in its dismissal of all that religion represents and encourage a deepening of the expression of meaning in the public square without compromising secular conceptions of government.

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NYC Bill on Religious Accommodations

The New York City Council passed a bill last week making it harder for employers, including the NYPD, to claim that accommodations for religious practice cause undue hardship. Section 8-107 of the New York City Administrative Code requires employers to make “reasonable accommodations” for the religious needs of their employees. The Code, however, adds that such accommodations shall not impose an “undue hardship” on the employer’s business.

The Sikh community has been among the prime advocates for this bill. In 2004, two Sikhs lost their positions with the New York City Police Department for wearing turbans on the job. Both men were reinstated, but pressures to amend the Administrative Code did not stop. Currently, the NYPD’s strict uniform requirements allow for Sikhs to wear patkas, smaller turbans usually worn by Sikh children. Read more

Posted on by Mark Movsesian · 2 Comments

Religion As Class Consciousness

It’s not the class you think.  Although academics often assume that religion appeals primarily to less-educated, working-class types – “religion-clingers,” as it were – two new studies suggest that the reality is more complicated.  If anything, education correlates positively with religious participation.  Earlier this month, sociologist Philip Schwadel (University of Nebraska-Lincoln) published a study of American religious practice showing, among other things, that education has “a strong and positive effect on religious participation” in the United States.  With each additional year of education, Schwadel found, “the odds of attending religious services increased 15 percent.”  Education also correlates positively with more frequent Bible reading and, interestingly, more questioning of religion’s role in secular society.  Similarly, a study released by the American Sociological Association on Sunday reveals that less-educated American whites, defined as people without a high-school degree, have been dropping out of religious services at a much higher rate than their more educated counterparts. According to this study, 46% of college-educated whites attend religious services at least monthly, compared to 37% of those who have graduated high school and 23% of the least educated.  Religious participation is also associated with higher incomes and stable employment.

Of course, it’s not clear why religion should be more a part of upper- and middle-class than lower-class identity.  Bradford Wilcox (University of Virginia), one of the ASA study’s authors, suggests that religious institutions, which typically stress marriage and family, may be losing their appeal for less-educated Americans, who are less likely to marry and stay married than Americans with a college education.  Perhaps less frequent religious attendance reflects a deeper alienation of lower-class Americans from social institutions that have failed them.  In any event, these two studies are further indications that, as in other parts of the globe, religion in America today is a marker for education and upward social mobility. — MLM

Posted on by Mark Movsesian · 1 Comment

Conference: The Future of the Establishment Clause in Context

As my colleague Marc notes, the proper definition of neutrality is very much an issue in Establishment Clause jurisprudence today, particularly with regard to state-sponsored religious symbols and expressions.   Neutrality will be one of the topics addressed at an interesting conference organized by Bruce Ledewitz (Duquesne), scheduled for November 3.  Participants include Christopher Lund, Zachary Calo, Samuel Levine, Richard Albert, and Mark Rahdert.  The conference announcement follows.  — MLM

The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?

The Establishment Clause of the Constitution prohibits Congress from making any law “respecting an establishment of religion”.  There is no agreement today on the Supreme Court, or in American law generally, as to what that command means.  This disarray has led to intractable controversies over such issues as “one Nation under God” and “In God We Trust”.  Government neutrality toward religion is now challenged by some members of a newly assertive, national religious majority.  Conversely, a growing number of nonbelievers, especially among the young, reject even generic references to God.  Disappointingly, the Supreme Court has responded to these developments by limiting standing to bring Establishment Clause challenges, rather than by a coherent reinterpretation of the text.

In conjunction with a symposium issue of The Chicago-Kent Law Review, six scholars will explore the future of the Establishment Clause in terms of this contested context at Duquesne University School of Law on November 3, 2011.  They will inquire into the possibilities set forth by the three paths open to us into the future of religion in the public square: a new government neutrality, a new relationship of government and religion and a new understanding of how the Establishment Clause is to be enforced.

Posted on by Marc O. DeGirolami

After Secular Law (Sullivan et al. eds.)

Here’s a new book (available…today!), After Secular Law (Stanford UP), edited by Winnifred Fallers Sullivan (SUNY Buffalo), Robert A. Yelle (U. Memphis), and Mateo Taussig-Rubbo (SUNY Buffalo), with an interesting list of contributions (click on the table of contents).  The publisher’s description is below.  — MOD

Many today place great hope in law as a vehicle for the transformation of society and accept that law is autonomous, universal, and above all, secular. Yet recent scholarship has called into question the simplistic narrative of a separation between law and religion and blurred the boundaries between these two categories, enabling new accounts of their relation that do not necessarily either collapse them together or return law to a religious foundation.

This work gives special attention to the secularism of law, exploring how law became secular, the phenomenology of the legal secular, and the challenges that lingering religious formations and other aspects of globalization pose for modern law’s self-understanding. Bringing together scholars with a variety of perspectives and orientations, it provides a deeper understanding of the interconnections between law and religion and the unexpected histories and anthropologies of legal secularism in a globalizing modernity.