Tebbe on Nonbelievers

Nelson Tebbe (Brooklyn Law School) has posted his excellent piece, Nonbelievers (forthcoming Virginia L. Rev.).  I’ve had a chance to see this piece develop — it’s a nuanced and careful take on the special issues involving nonbelievers and religious liberty.  Along the way, Nelson’s erudition in the area of religious studies also shines through, in his discussion of the definition of religion issue and his adoption of a “polyvalent” approach.  The abstract is below.  — MOD

How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. Nonbelievers and believers should receive comparable protection in some situations but not in others. The method I apply is polyvalent—it seeks to capture the full range of values that should matter, recognizing that the mix of relevant concerns may differ from doctrine to doctrine. Two arguments push against my piecemeal approach, however. First, scholars argue that the term religion should simply be defined to include (or exclude) nonbelievers in advance and for all purposes. Second, leading thinkers have recently criticized the special place of religion in American law. For them, even if nonbelief is not a religion, it should always be treated with similar solicitude. Rejecting both of these positions, I contend that definitional approaches are unlikely to be helpful, and that careful judges will determine the specialness of religion in a variegated way. Applying this method to several doctrines—including antidiscrimination, free exercise exemptions, church autonomy, government endorsement, and public funding—I propose protecting nonbelievers only in some of these areas. In conclusion, I suggest that adjudication of religious freedom claims generally is neither impossible nor senseless, despite the fears of some.

Conference: Theological Argument in Law: Engaging with Stanley Hauerwas

This conference (September 9, 2011) at Duke Law School considering the implications of the work of Stanley Hauerwas for law is being organized by John Inazu (Wash. U. School of Law).  The speaker list is terrific.  I had the pleasure of reading a draft of John’s introduction to the conference; legal engagement with theology is not common, and John’s take on these issues is thoughtful and insightful.  — MOD

“American Christianities” (Brekus and Gilpin eds.)

Here’s a wonderful looking book of essays, American Christianities: A History of Dominance & Diversity (UNC Press) edited by historians Catherine A. Brekus and W. Clark Gilpin.  The focus on Christianity’s political dominance (as well as the implications of its diversity on policy and legal issues) seems helpful for law and religion scholars.  The publisher’s description is below.  — MOD

From the founding of the first colonies until the present, the influence of Christianity, as the dominant faith in American society, has extended far beyond church pews into the wider culture. Yet, at the same time, Christians in the United States have disagreed sharply about the meaning of their shared tradition, and, divided by denominational affiliation, race, and ethnicity, they have taken stances on every side of contested public issues from slavery to women’s rights.

This volume of twenty-two original essays, contributed by a group of prominent thinkers in American religious studies, provides a sophisticated understanding of both the diversity and the alliances among Christianities in the United States and the influences that have shaped churches and the nation in reciprocal ways. American Christianities explores this paradoxical dynamic of dominance and diversity that are the true marks of a faith too often perceived as homogeneous and monolithic.

Batnitzky’s “How Judaism Became a Religion”

Religious studies scholar Leora Batnitzky’s How Judaism Became a Religion: An Introduction to Modern Jewish Thought (PUP) looks like a fascinating treatment of a subject right at the intersection of law and religion — that is, how a tradition based in law and practice came to describe and think of itself as a “religion.”  For those who think about how to define “religion” for constitutional and other legal purposes, this book looks useful.  The publisher’s description follows.  — MOD 

Is Judaism a religion, a culture, a nationality–or a mixture of all of these? In How Judaism Became a Religion, Leora Batnitzky boldly argues that this question more than any other has driven modern Jewish thought since the eighteenth century. This wide-ranging and lucid introduction tells the story of how Judaism came to be defined as a religion in the modern period–and why Jewish thinkers have fought as well as championed this idea.

Ever since the Enlightenment, Jewish thinkers have debated whether and how Judaism–largely a religion of practice and public adherence to law–can fit into a modern, Protestant conception of religion as an individual and private matter of belief or faith. Batnitzky makes the novel argument that it is this clash between the modern category of religion and Judaism that is responsible for much of the creative tension in modern Jewish thought. Tracing how the idea of Jewish religion has been defended and resisted from the eighteenth century to today, the book discusses many of the major Jewish thinkers of the past three centuries, including Moses Mendelssohn, Abraham Geiger, Hermann Cohen, Martin Buber, Zvi Yehuda Kook, Theodor Herzl, and Mordecai Kaplan. At the same time, it tells the story of modern orthodoxy, the German-Jewish renaissance, Jewish religion after the Holocaust, the emergence of the Jewish individual, the birth of Jewish nationalism, and Jewish religion in America.

Smith and the Critique of Religious Neutrality

Steven D. Smith has posted an excellent short piece, The Paralyzing Paradox of Religious Neutrality.  The piece revisits some of the criticisms that Steve first made in book form in Foreordained Failure, but there is a new critique of some of the arguments in support of religious neutrality to be advanced by Andrew Koppelman in an interesting forthcoming book, Religious Neutrality in American Law (about which I won’t say anything more, as it is still unpublished).  If you are interested in a short and readable introduction to some of these debates, this is a good place to begin.  — MOD

Dabashi’s “Shi’ism”

I want to flag Iranian Studies and Comparative Literature scholar Hamid Dabashi’s Shi’ism: A Religion of Protest (HUP), which should be interesting for those who study the compatibility of religious and legal institutions.  The publisher’s description is below.  — MOD

For a Western world anxious to understand Islam and, in particular, Shi’ism, this book arrives with urgently needed information and critical analysis. Hamid Dabashi exposes the soul of Shi’ism as a religion of protest—successful only when in a warring position, and losing its legitimacy when in power.

Dabashi makes his case through a detailed discussion of the Shi’i doctrinal foundations, a panoramic view of its historical unfolding, a varied investigation into its visual and performing arts, and finally a focus on the three major sites of its contemporary contestations: Iran, Iraq, and Lebanon. In these states, Shi’ism seems to have ceased to be a sect within the larger context of Islam and has instead emerged to claim global political attention. Here we see Shi’ism in its combative mode—reminiscent of its traumatic birth in early Islamic history. Hezbollah in Lebanon claims Shi’ism, as do the militant insurgents in Iraq, the ruling Ayatollahs in Iran, and the masses of youthful demonstrators rebelling against their reign. All declare their active loyalties to a religion of protest that has defined them and their ancestry for almost fourteen hundred years.

ICLARS Conference: Religion and the Constitution (Santiago, Sept. 8-11)

The second conference of the International Consortium for Law and Religion Studies will take place next month in Santiago, Chile. The theme is “Religion and the Constitution.”  Panels include “The status of religious, ethnic and cultural minorities,” “Religion and the Constitution in China,”  “Freedom of religion, freedom of conscience, and freedom of expression,” among others.  A first-class roster of scholars from around the world.  The conference program and contact info are here.  Should be great! — MLM

Law & Religion in the 21st Century (Ferrari & Cristofori eds.)

From Ashgate, what looks to be a very useful overview of hot-button issues in law and religion around the world, Law and Religion in the 21st Century: Relations between States and Religious Communities (Silvio Ferrari & Rinaldo Cristofori eds. 2010).  Great lineup of authors!  The table of contents is below.  — MLM

Preface; A perspective from the sociology of religion, Grace Davie; Part I Patterns of Law and Religion: State and religion in South Africa: open issues and recent developments, Lourens M. du Plessis; States and religions in West Africa: problems and perspectives, Fatou Kiné Camara; Religious communities and the state in modern India, Tahir Mahmood; State and religion in Japan. Yasukuni Shrine as a case study, Hiroaki Kobayashi; Religion and the state in the United States at the turn of the 21st century, W. Cole Durham Jr and Robert T. Smith; Religions and law: current challenges in Latin America, Juan Navarro Floria. Part II Law and Religion in Europe, Introduction and Case Studies: State and religion Read more

Howard’s “God and the Atlantic”

This is a superb looking and very recent book by Thomas Albert Howard, God and the Atlantic: America, Europe, and the Religious Divide (OUP 2011).  It should be of great interest to comparativists.  Below is a description.  — MOD

Since the eighteenth-century Enlightenment, the United States and Western Europe’s paths to modernity have diverged sharply with respect to religion. In short, Americans have maintained much friendlier ties with traditional forms of religion than their European counterparts. What explains this transatlantic religious divide?

Accessing the topic though nineteenth and early twentieth-century European commentary on the United States, Thomas Albert Howard argues that an ‘Atlantic gap’ in religious matters has deep and complex historical roots, and enduringly informs some strands of European disapprobation of the United States. While exploring in the first chapters ‘Old World’ disquiet toward the young republic’s religious dynamics, the book turns in the final chapters and focuses on more constructive European assessments of the United States. Acknowledging the importance of Alexis de Tocqueville for the topic, Howard argues that a widespread overreliance on Tocqueville as interpreter of America has had a tendency to overshadow other noteworthy European voices. Two underappreciated figures here receive due attention: the Protestant Swiss-German church historian, Philip Schaff, and the French Catholic philosopher, Jacques Maritain.

Pope Benedict XVI on Education

This article from Il Corriere Della Sera reports on a speech that the Pope gave to a number of young (under 40…that’s young, right?) university professors at El Escorial Monastery near Madrid.  In the speech, the Pope spoke against an educational ethic of “utility and pragmatism,” saying also (and…perhaps echoing Cardinal Newman) that “the true idea of a university preserves us from a reductive and distorted vision of humanity.”  Education is not, he continued, “an arid communication of subtance, but instead the formation of young people which you [the professors] must undertake and research [“comprendere e ricercare”].”  — MOD (x-posted MOJ)