Posted on by Marc O. DeGirolami

October 4: Hosanna-Tabor Discussion at St. John’s

On October 4 (next Tuesday), CLR and the Catholic Law Student Society at St. John’s University School of Law will co-host an event devoted to Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  The Supreme Court hears oral argument in this case on October 5, so it could not be more timely.  I will be talking about the case — one of the most important religious liberty cases to come before the Court in at least two decades — and the doctrine of the ministerial exemption generally.  There will then be a period of questions, discussants to include my colleagues David Gregory and Mark Movsesian as well as Mr. Peter J. Johnson, Jr., president of Leahy & Johnson, P.C.  I hope to record my thoughts about the discussion here.

The event will occur in the 4th floor Atrium at 5:30 pm.  All are welcome.  If you are in the area, please stop by to say hello.  — MOD

UPDATE: Just after I posted this, I noticed this article about the case.  Likely there will be many similar pieces in the coming days.  In my view, this article is misleadingly titled.  The case is not about religious institutions’ power to “declare” that their employees are exempt from “federal protections.”  It is about whether and in which circumstances (if ever) the Constitution, as interpreted by the Supreme Court, limits the reach of anti-discrimination law.  It may or it may not; but in either case, little turns on anybody’s individual declarations (though conceivably if an institution explicitly waived its rights, that might be relevant).

Posted on by Marc O. DeGirolami

Coughlin’s “Canon Law”

Readers interested in an introduction to Roman Catholic canon law should find Canon Law: A Comparative Study With Anglo-American Legal Theory (OUP 2011), by Rev. John J. Coughlin, O.F.M. (Notre Dame law school) a very useful book.  Fr. Coughlin sets up a comparison of three approaches to canon law: antinomianism, legalism, and one based in the rule of law, and he defends the last of these against the other two.  One of the worthwhile things about Fr. Coughlin’s methodology is that, as the title indicates, the book offers a comparative perspective with 19th and 20th century philosophy of law (represented in the tradition beginning with John Austin and proceeding through to Hart, Raz, Finnis, and also Rawls). 

Particularly interesting in this respect is Chapter Four, in which Fr. Coughlin compares theories of property ownership in canon law and liberal philosophy.  After an illuminating discussion tracing the historical views in each tradition, he says: Read more

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The New York Times on Richard Dawkins’ Evangelical Atheism, Post One

On Monday, September 19, the New York Times profiled the evolutionary biologist, Richard Dawkins, in the lengthy Profiles in Science: A Knack for Bashing Orthodoxy.  (The Times’ online edition also features a filmed interview.)  Though it is beyond this author’s expertise to assess the claim, many regard Dawkins’ The Selfish Gene (1976) as groundbreaking in its field.

Recently, however, Dawkins has become notorious for the strident atheism he articulated in The God Delusion (2006), an international best seller.  The God Delusion argues that religious faith is not only irrational but socially dangerous.  The NYT profile, though published in the Science Section, devotes substantial page-space to Dawkins’ perspectives on religion.

This Commentary will proceed in two posts.  Post One will characterize Dawkins’ atheistic perspectives—as he relates them in his NYT profile—and contend that (1) atheism’s stance is not without justification and (2) neither is atheists’ sense of defensiveness, which is probably the basis for Dawkins’ popularity.  Yet, despite my sympathy for nonreligious persons and respect for their beliefs, Dawkins’ vitriol and its underlying critical method are fundamentally defective.  Forthcoming, Post Two will critique Dawkins’ unabashed prejudice toward religious devotion from two perspectives: (1) Terry Eagleton’s criticism that Dawkins lacks basic understanding of the variety and fullness of religious belief and (2) Alasdair MacIntyre’s theory that contemporary moral discourse in the socio-political sphere is broken to the point of interminability, a failing Dawkins exemplifies.

Read more

Posted on by Mark Movsesian

Politics, Taxes, and the Pulpit (Oct. 12, 2011)

Professor Nina Crimm will discuss her book, Politics, Taxes, and the Pulpit: Provocative First Amendment Conflicts (Oxford 2011) (with Laurence Winer), at a conference at the University of Kentucky Law School on October 12. For  information, please click here.

Posted on by Marc O. DeGirolami

Jesus’s Contemporary Political Views Expounded

In this piece on CNN’s religion blog, Carl Medearis says that Jesus would support a Palestinian state.  He reaches this conclusion because of the self-evident meaning of the beatitude, “Blessed are the peacemakers [for they shall be called the children of God]” and because of Jesus’s “refusal to embrace a nationalist agenda.”  Medearis further says that because “love, compassion, and peace-making” were important to Jesus, he would obviously support a Palestinian state.

What’s curious to me about all of this isn’t so much the underlying political view.  That’s just a policy preference stated in blunt terms.  I actually am not certain what I think on the merits, but I am reasonably sure that the case for one or another political outcome in this conflict can be and has been made far better than Mr. Medearis makes it.

No, what’s interesting to me is the raw certitude with which Mr. Medearis announces Jesus’s opinions about contemporary geo-political affairs.  The WWJD manner of talking has always seemed to me to be a distinctively American cultural tic — a combination of preening presumption, blindingly simplistic argument, and anachronistic superimposition.  Europe has its problems, to be sure, but WWJD discourse is not one of them.  The WWJD style issues from the vaguely democratic notion that every person is just as able as every other person to know in their hearts what Jesus really meant then and what he would say now on a panoply of subjects ranging from the proper setting of my HVAC system to the economic future of sub-Saharan Africa.  Ironically, it also seems to be a mode of argument which trades on the authority of the figure invoked: it isn’t so much the underlying plausibility of the view expressed as the fact that a figure of nearly-universally recognized moral authority is associated with it which marks the style of discourse.  And it garners sufficient respect as a style of political engagement to make the e-pages of CNN.    — MOD

Posted on by Marc O. DeGirolami

Classic Revisited: Oakeshott’s “Religion, Politics, and the Moral Life”

Andrew Sullivan has an interesting post about belief and practice as distinct facets of religious experience.  The belief/conduct distinction was at one time an important one in the American law of religious liberty as well.  In Reynolds v. United States, for example, the first case interpreting the Free Exercise Clause, the Court stated that while Congress was free to regulate “action,” it could not regulate “mere opinion” (of course, the regulation of “action” might well be thought in some circumstances to infringe gravely on the free exercise of religion).  Sullivan discusses the views of Michael Oakeshott about religion, noting that the English political theorist located religion within the world of “practice” (an important term of art in Oakeshott’s thought).

Sullivan’s reflection prompts me to recommend a wonderful and perhaps lesser known book of Oakeshott’s, Religion, Politics, and the Moral Life (Timothy Fuller ed., YUP 1993), a collection of essays by Oakeshott, most from early in his life, about the relationship of religion and politics.  Religion is a subject that some writers mistakenly believe that Oakeshott ignored.  One of my favorite of the essays in this volume is the first, “Religion and the World,” in which Oakeshott describes the attitudes of early and late Christianity — the one preparing ecstatically for the imminent second coming, the other coping with the disappointment of delay in the fallen world.  Oakeshott describes two types of self, the worldly and religious man, and their orientations and interactions.  For an absolutely superb discussion of Oakeshott’s views about religion and politics, may I also recommend Elizabeth Campbell Corey’s Michael Oakeshott on Religion, Aesthetics, and Politics (2006).   Yale’s description of the Oakeshott collection follows after the jump.  — MOD Read more

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Menchik on Religious Intolerance in Islamic Institutions

Jeremy M. Menchik (Stanford University; University of Wisconsin-Madison) has posted Missionaries, Modernists and the Origins of Intolerance in Islamic Institutions. The abstract follows. –JKH

 Why are some Islamic institutions more tolerant than others? This basic question has far-reaching implications. Islamic movements have considerable sway in the policies of newly democratic Egypt, Tunisia and most other Muslim-majority states. Islamic movements are likewise important for the formation of social trust; recent scholarship suggests that democratization in Muslim counties is more likely to occur when Islamic institutions are able to build networks of cooperation across religious differences, while scapegoating and sectarian polemics between religious groups increases the likelihood of violence. I answer this basic question by focusing on Islamic institutions in Indonesia, the world’s largest Muslim-majority country and one of the most diverse. Using archival material and newly collected survey data, I argue against the notion that theology or ideology shape interethnic relations and show that local politics during the late colonial period explains the policies of contemporary Islamic institutions.

Posted on by Mark Movsesian

Waltman on Religious Liberty and Employment

Jerold Waltman (Baylor) has posted a paper on recent British legislation affecting religion in the workplace, Religious Liberty and the Employment Sections of the Equality Act 2010. The abstract follows. — MLM

Religious liberty is rightly called the “first freedom.” This is not only because it was the first to develop historically, but also because it involves human beings’ most fundamental identity. When peoples’ beliefs are imposed on them, they cannot be free in any meaningful sense of the term. But the individual’s freedom to believe carries two vital corollaries. One is that she must be able to put those beliefs into practice. The other is that religious liberty has a collective as well as an individual dimension. Many religions require that people form groups in order to worship and engage in other religious activities. Thus, in a polity committed to religious liberty, religious organizations must be able to claim rights alongside individuals.

Posted on by Mark Movsesian

Laborde on Religious Dress

More on banning religious attire: Cecile Laborde (University College London) has posted State Paternalism and Religious Dress. The abstract follows. — MLM

This paper criticises the paternalist argument for bans on gender-specific restrictive religious dress. This posits that the prohibition on the wearing of hijab in schools assists the emancipation and autonomy of young girls. In the first section, I briefly summarize the republican paternalist position against the hijab, and explain why it is flawed, in light of a critical republican ideal of non-domination. In the second section of the paper, I expand the argument, and apply it to recent controversies about the wearing of the niqab (full face covering). I argue that the so-called ‘burqa ban’ in France (13 July 2010) suffers from even graver flaws than the 2004 hijab ban, to the extent that it extends paternalistic coercion from children to adults. More generally I explore the question as to whether, if there are relevant differences between hijab and niqab, they have a bearing on the normative case against legal regulation.

 

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Sandberg on Religious Freedom and Discrimination in the UK

Russell Sandberg (Cardiff Law School) has posted The Right to Discriminate. The abstract follows. –JKH

The first decade of the 21st century has witnessed a number of controversies surrounding the interaction between law and religion in the United Kingdom. In particular, tensions have emerged between laws protecting religious freedom and those which prohibit discrimination on grounds of sexual orientation. In particular, Parliament has repeatedly examined the scope and ambit of exceptions afforded to religious groups which allow them to discriminate on grounds of sexual orientation when specific conditions are met.  And these exceptions have reportedly led to tensions within both the Blair and Brown cabinets and rebukes from the Vatican and the European Commission, criticising the exceptions for being too narrow and too broad respectively. The exceptions have also been challenged by way of judicial review, have been applied or commented upon in a number of high-profile cases and have attracted comment in the print and broadcast media. A number of employees have brought claims asserting that new legal requirements promoting equality on grounds of sexual orientation are incompatible with their religious beliefs. This article seeks to explore the legal changes that have occurred in the first decade of the 21st century affecting religion and sexual orientation with particular reference to how courts and tribunals have dealt with clashes between the two. It discusses the extent to which English law allows religious groups and individuals to follow their own beliefs regarding human sexuality.