Posted on by Marc O. DeGirolami

Classic Revisited: Stokes’s “Church and State in the United States”

Studies of the constitutional law and history of the religion clauses often seem to be largely a late twentieth century phenomenon (this is not too surprising, since things began to heat up in earnest in the mid-’40s), but there are many notable predecessors.  One of these is Anson Phelps Stokes’s gargantuan effort, Church and State in the United States, first published in 1950 in three volumes.  It contains many historical details that are well worth savoring and which don’t seem to have made it to subsequent treatments (particularly church/state episodes in early America).  The three volumes were later condensed into one volume by the brilliant Leo Pfeffer, with some slightly polemical editing by Pfeffer as well (as committed a 1960s-70s-style separationist as one could find). 

As I could not find an image of the original Stokes volumes, I’ve attached an image of the 1964 Pfeffer abridgement.  But a few years back I looked through Volume I of the original — if you can get your hands on it, it’s well worth it.  — MOD

Posted on by Marc O. DeGirolami

Interesting Comments from Chip Lupu on Hosanna-Tabor

The Washington Post has a balanced article on the ministerial exemption and the upcoming Hosanna-Tabor case with some interesting comments from Professor Chip Lupu.  One thing Chip mentions that I had not thought about was that he expects the three female justices, Justices Ginsburg, Sotomayor, and Kagan, to vote for a narrow ministerial exemption (assuming that they vote for an exemption) for the reason that they will want to protect teachers in religious schools who are likely to be women.  I am not sure how these Justices would vote, but I think I agree with Chip that some or perhaps even all three of them are likely to vote for a narrow exemption.  For example, I think Justice Kagan’s dissent in Arizona v. Winn was some indication of her views of religion clause questions, though that case implicated EC issues, and these Justices’ views of the FEC is largely a mystery.  But I had not considered the particular reason that Chip offers.  But if this is a reason to vote against the ME, I don’t think it’s one which would apply to a variety of (perhaps even many) situations in which the ministerial exemption would otherwise apply.  Do others disagree with me?  — MOD [x-posted MOJ]

Posted on by Mark Movsesian

White House Issues Statement on Iran Apostasy Trial

The White House issued a statement this afternoon condemning the conviction of Evangelical Pastor Yousef Nadarkhani for apostasy by an Iranian court. Having refused three times to recant his adult conversion to Christianity, Nadarkhani is now subject to execution. Some reports suggest that the authorities will commute the death-penalty sentence, but that is unclear at this writing. The White House’s statement follows. — MLM

The United States condemns the conviction of Pastor Youcef Nadarkhani.  Pastor Nadarkhani has done nothing more than maintain his devout faith, which is a universal right for all people.  That the Iranian authorities would try to force him to renounce that faith violates the religious values they claim to defend, crosses all bounds of decency, and breaches Iran’s own international obligations.   A decision to impose the death penalty would further demonstrate the Iranian authorities’ utter disregard for religious freedom, and highlight Iran’s continuing violation of the universal rights of its citizens.  We call upon the Iranian authorities to release Pastor Nadarkhani, and demonstrate a commitment to basic, universal human rights, including freedom of religion.

Posted on by Mark Movsesian

Calo on Catholicism, Liberalism and Human Rights

Zachary Calo (Valparaiso) has posted Catholicism, Liberalism and Human Rights, on SSRN.  The abstract follows. — MLM

Human rights is the dominant moral category of modernity. As both a theoretical concept and the basis of legal norms, human rights shapes the way we think and talk about personhood, social justice, and political obligation. Yet, it is also the case that there is no one account of human rights, but rather competing traditions of human rights that strive for primacy. Human rights, in short, is a deeply contested category through which different moral visions aim to shape institutions and policies. In spite of the label, human rights claims are not universal, either methodologically or substantively. Rather, under the umbrella of human rights is located a constant struggle between the universal and the particular. How this tension unfolds, and whether it does so in a constructive or disruptive manner, is one of the foundational questions that must be engaged in coming years.

In the past, the tension between universality and particularity was considered most commonly in the context of cultural relativism, with particular attention given to the ways in which human rights was a western construct that could not adequately account for different forms of communal values. This issue remains important, though this paper advances the claim that the most significant point of tension is not between human rights values and non-human rights values, but rather a tension within the idea human rights. More specifically, the primary fault line concerns the role of religion and religious traditions as they relate to human Read more

Posted on by Mark Movsesian

Lectures at Kellogg College (Oxford)

The Centre for the Study of Religion and Public Life at Kellogg College (Oxford) has announced two upcoming lectures.  On October 12, the Rev. Canon Dr. Vincent Strudwick will speak on “God and the Big Society,” and on November 7, Prof. Joseph Prudhomme (Washington College) will speak on “Teaching the Bible in State-Supported Schools.”  For details, please contact Kellogg College.  — MLM

Posted on by Marc O. DeGirolami

Swiss Strife

This is a fascinating story detailing the recent history of conflict in Switzerland between various Muslim and state/non-Muslim interests.  The newest controversy is the result of Muslim agitation to remove the white cross from the Swiss flag, ostensibly in order both to reflect the “separation of church and state” and Switzerland’s increasing “cultural diversity.”  The group prefers a flag with colors and patterns resembling the flags of Bolivia and Ghana.

Switzerland has been the site of increasing strife stimulated by the dramatic increase in its Muslim immigrant population, which the story reports has quintupled since 1980.  Among the many interesting conflicts reported in the story (including the minaret controversy) is the successful lawsuit by Muslim parents demanding the right to dress their children in full-body bathing suits (“burkinis”) during co-ed swimming lessons.  — MOD

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Horwitz on the Ministerial Exception

Paul Horwitz (University of Alabama School of Law) has posted Act III of the Ministerial Exception. The abstract follows. –JKH

On October 5, 2011, the Supreme Court will hear oral arguments in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case in which the Court will consider the existence and nature of the so-called “ministerial exception”: the judicial doctrine that gives churches legal immunity in employment discrimination cases brought by “ministerial” employees. The case promises to be one of the more important church-state decisions in recent years. In conjunction with the second Annual Law and Religion Roundtable, the Northwestern University Law Review Colloquy will be publishing several pieces on the case.

Posted on by Marc O. DeGirolami

Lecture: Levinson on Constitutional Faith at Touro

On October 10, Professor Sanford Levinson will deliver the inaugural lecture in what looks like a wonderful lecture series at the Jewish Law Institute at Touro Law Center, directed by my friend, Sam Levine.  Professor Levinson will speak about his well-known book, Constitutional Faith, which has been reissued with a new afterword by Levinson, as noted here.  — MOD

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Spencer on the Mahr as Contract

Katherine Spencer (Harvard University) has posted Mahr as Contract: Internal Pluralism and External Perspectives. The abstract follows. —YAH

This paper examines the Islamic legal doctrine of mahr- an inherent component to the marriage contract. In the first part the principal aspects of the marriage contract are analyzed and the pluralism between Islamic schools and geo-political regimes are acknowledged. In the second part the ‘mahr’ itself is specifically considered, noting the difficulties for Western scholars in conceptualizing and categorizing a provision that has no equivalent in Judeo-Christian marriage. The third part looks at the ways in which US and UK courts have categorized the mahr as a contract, or a term within a contract and yet have reached different conclusions on its enforceability. This produces inconsistent and sometimes unfair results and begs the question whether the recognition of Islamic family law by ‘Western’ courts is inherently problematic. In the final section I attempt to answer some of those larger questions and conclude with the view that giving effect to mahr agreements as enforceable personal rights is judicially feasible – with the proviso however that in circumstances of profound unfairness and where contrary to public policy courts maintain the discretion to render such contracts unenforceable.

Posted on by Mark Movsesian

Iranian Pastor Faces Death Penalty for Apostasy

From Terry Mattingly at GetReligion, this troubling story: Rev. Yousef Nadarkhani, an Evangelical pastor in Iran, is facing execution for apostasy. Nadarkhani converted to Christianity as an adult. Although he never was a practicing Muslim, he has Muslim ancestry — which means, according to the Iranian courts, that his conversion qualifies as apostasy, a capital offense. Under the Iranian courts’ reading of Islamic law, Nadarkani must be given three public opportunities to renounce his apostasy  before being subject to the death penalty. He has already refused twice to return to Islam; his third opportunity comes in an Iranian court this week, after which he may be executed. Mattingly criticizes the media for failing to cover this story, after all the attention given to the American hikers Iran released earlier this week. — MLM