Here for the second panel, which kicks off with Professor Haider Hamoudi’s discussion of why bankruptcy law has been relatively irrelevant to Islamic law, that is, Sharia law. Hamoudi says: Read more
Liveblogging the Religion and Bankruptcy Conference, Part I
I am at the St. John’s Religion and Bankruptcy Conference this morning, and I thought to report on some of the papers and discussion going on right now.
The first presentation was by Professor Theresa Radwan of Stetson University School of Law, dealing with the use of tithing to establish the non-dischargeability of debt following the Religious Liberties and Charitable Protection Act and the Religious Freedom Restoration Act.
The issue is whether post-petition tithing can operate to shield the debtor from creditors. RFRA reinstituted the substantial burden/compelling state interest of Sherbert v. Verner, and the panelists are now talking about whether that test means that the state is appropriately reluctant to judge whether and how the “undue hardship” standard in the discharge of student loan debts interacts with the substantial burden component of RFRA.
Live from “Religion and Bankruptcy: Perspectives Thereon and Treatment Therein” Symposium at St. John’s School of Law
Theresa J. Pulley Radwan (Stetson University College of Law) presents her paper “Sword or Shield: Use of Tithing to Establish Nondischargeability of Debt Following Enactment of the Religious Liberties and Charitable Donation Protection Act,” at the Symposium hosted by the ABI Law Review, Center for Bankruptcy Studies and CLR.
Also presenting, Thomas L. Shriner Jr. (Foley & Lardner LLP).
Moderating, G. Ray Warner (St. John’s School of Law)
Catholic Bishops in England and Wales Restore Meatless Fridays
Starting today, Catholic bishops in England and Wales have restored the centuries-old tradition of asking believers to abstain from meat and offer prayers on Fridays as an act of common penance. The bishops argue that abstaining and praying in a communal way will encourage penitence and solidarity with the suffering and also serve as a mark of Catholic identity in the wider society. The bishops’ explanation of the new policy, first announced last spring, is here.
There are many angles to this story – theological, sociological, even political – but CLR Forum readers will likely find the legal aspects most interesting. As a legal matter, the bishops’ reasoning goes like this. The canon law of the Catholic Church provides that, for Latin-Rite Catholics, “[a]ll Fridays through the year … are penitential days … throughout the entire Church” (Canon 1250). Particular forms of Friday penance are prescribed by local bishops (Canon 1251). For centuries, the bishops had prescribed meatless Fridays as the form penance should take, but in 1985 they decided to allow Catholics to substitute other forms of penance. The bishops’ new decision, which that takes effect today, restores the earlier practice. – MLM
Classic Revisited: Hamburger’s “Separation of Church and State”
In light of some recent perplexing commentary, it seemed like an
appropriate moment to commend the definitive book about the historical origins of the famous metaphor of the “wall of separation” between church and state, as well as its use in constitutional law beginning at the turn of the 20th century and especially since the famous Everson decision: Philip Hamburger’s Separation of Church and State (HUP 2002).
And just in brief response to the post by Sarah Posner above, it seems to me that both constitutional conservatives and constitutional progressives do not, today, differ on the viability of separation as a principle of religious liberty per se, so much as they differ on the nature and scope of the principle of separationism. The question, to my mind, is not whether the idea of separationism is “a myth.” An important variety of separation between ecclesiastical and temporal authority is bedrock — indeed, it was the Catholic Church itself which played a key role in initiating this separation. The question is instead what the particular contours of the principle should be today — one which thoughtful constitutional conservatives and constitutional progressives can debate without resorting to caricature. — MOD
Tebbe on the Constitutionality of Witchcraft in South Africa
Nelson Tebbe (Brooklyn Law School) posted Witchcraft and the Constitution. The abstract follows. –JKH
Witchcraft beliefs and related practices are complex social phenomena that present difficult challenges for South African lawmakers who are bound by their constitution and committed to upholding its values. In this chapter of an edited volume from the University of Cape Town Press, I focus on certain constitutional questions raised by existing policies and current proposals. In some respects, the constitutional issues are easier than might be supposed. For example, Parliament may punish violence against suspected witches, even with laws that specifically address religiously motivated murder and assault. Also, citizens may believe that occult forces exist, and that those forces are being manipulated by jealous or malevolent neighbors. More constitutionally problematic are calls for educational campaigns that would “demystify” witchcraft beliefs, or proposals for laws that would prohibit certain rituals related to witch naming. Regardless of the resolutions, these sorts of constitutional issues deserve a place in the public debate.
9/11 Writers Roundtable (Sept. 21, 2011)
Professor Lawrence Joseph will read excerpts from his poems as part of the 9/11 Writers Roundtable, to be held at the St. John’s Manhattan campus on Wednesday, September 21, from 4-6 p.m. This event will bring together internationally prominent writers to offer perspectives on 9/11. Following the readings, there will be an in-depth Q&A session addressing the process of transforming a traumatic collective experience into a lasting work of art.
Einhorn on Family Unions in Israel
Talia Einhorn (Tel Aviv University) has posted Family Unions in Israel – The Tensions between Religious Law and Secular Law and the Quest for Coherent Law. The abstract follows. –JKH
In two decisions of the Israel Supreme Court concerning family relations, the meaning of traditional concepts has come to play a vital role in the debate. The first concerned a lesbian couple who were Israeli citizens. While residing for two years as students in Los Angeles, California, one of them gave birth following artificial insemination. The other spouse adopted the child. Both were entered in the LA civil register as the child’s parents. Upon their return to Israel, they each applied to be registered as ‘mother’ of the child (the Israeli civil register admits the registration of ‘father’ and ‘mother’ but has no neutral category of ‘parent,’ as in LA). The State authorities declined, arguing that they can enter the name of only one woman as being a child’s ‘mother’ in the civil register. Read more
District Judge Blocks City’s Land Transfer to Catholic High School
The Associated Press reported last week that U.S. District Judge Robert Miller held that the city of South Bend could not transfer real property to a Catholic high school. The city was supposed to transfer the property to the new St. Joseph’s High School, scheduled to open in the fall of 2012, to be used as a football stadium. In exchange for the transfer, the high school was to make the stadium available for use by city schools and organizations for 10 years. Opposition to the transfer came from four city taxpayers who argued the transfer violated the Establishment Clause. Specifically, the taxpayers argued that the transfer of the $1.2 million property constituted direct and substantial aid to a religious institution. The judge agreed and concluded that a reasonable observer would think “the city is endorsing St. Joseph’s High School, the local Catholic community, or the Diocese that operates the school.” The South Bend Tribune reported that no decision has been made regarding what the city’s next step will be and whether there will be an appeal of the court’s decision. For now, construction on the high school will continue as scheduled. –YAH
Perry’s “The Pretenses of Loyalty”
John Locke is perhaps the most influential thinker on the American
founding generation, one whose ideas permeated the construction of the Constitution. He is also widely regarded as a vitally important figure in liberal political theory. In this excellent looking book, The Pretenses of Loyalty: Locke, Liberal Theory, and American Political Theology (OUP 2011), John Perry (Oxford) confronts the intractability of “theo-political conflict” today by considering the complicated intellectual path followed by Locke. The publisher’s description follows. — MOD
In the face of ongoing religious conflicts and unending culture wars, what are we to make of liberalism’s promise that it alone can arbitrate between church and state? In this wide-ranging study, John Perry examines the roots of our thinking on religion and politics, placing the early-modern founders of liberalism in conversation with today’s theologians and political philosophers.
From the story of Antigone to debates about homosexuality and bans on religious attire, it is clear that liberalism’s promise to solve all theo-political conflict is a false hope. The philosophy connecting John Locke to John Rawls seeks a world free of tragic dilemmas, where there can be no Antigones. Perry rejects this as an illusion. Disputes like the culture wars cannot be adequately comprehended as border encroachments presided over by an impartial judge. Instead, theo-political conflict must be considered a contest of loyalties within each citizen and believer. Drawing on critics of Rawls ranging from Michael Sandel to Stanley Hauerwas, Perry identifies what he calls a ‘turn to loyalty’ by those who recognize the inadequacy of our usual thinking on the public place of religion. The Pretenses of Loyalty offers groundbreaking analysis of the overlooked early work of Locke, where liberalism’s founder himself opposed toleration.
Perry discovers that Locke made a turn to loyalty analogous to that of today’s communitarian critics. Liberal toleration is thus more sophisticated, more theologically subtle, and ultimately more problematic than has been supposed. It demands not only governmental neutrality (as Rawls believed) but also a reworked political theology. Yet this must remain under suspicion for Christians because it places religion in the service of the state. Perry concludes by suggesting where we might turn next, looking beyond our usual boundaries to possibilities obscured by the liberalism we have inherited.