Posted on by Mark Movsesian

Byrnes on Transnational Religious Communities and US Foreign Policy

Timothy Byrnes (Colgate) has published Reverse Mission: Transnational Religious Communities and the Making of US Foreign Policy (Georgetown University Press 2011). The publisher’s description follows. – MLM

Many Catholic priests, nuns, and brothers in the United States take a strong interest in US policies that affect their “brothers and sisters” abroad. In fact, when the policies of their native government pose significant dangers to their people internationally, these US citizens engage actively in a variety of political processes in order to protect and advance the interests of the transnational religious communities to which they belong. In this provocative examination of the place of religion in world politics, Timothy A. Byrnes focuses on three Catholic communities—Jesuit, Maryknoll, and Benedictine—and how they seek to shape US policy in El Salvador, Nicaragua, and Mexico. Based on years of fieldwork and on-the-ground interviews, Reverse Mission details the transnational bonds that drive the political activities of these Catholic orders.

Posted on by Mark Movsesian

Court Denies Cert in Utah Highway Crosses Case

Today the Supreme Court denied certiorari in  Utah Highway Patrol Ass’n v. American Atheists, the Utah highway crosses case. The Tenth Circuit had held that memorial crosses an association of police officers had erected alongside public roadways violated the Establishment Clause under the endorsement test. Justice Thomas filed a 19-page dissent from the denial of cert, arguing that the case would have provided a good vehicle for reconsidering the test, which, he argues,  confuses lower courts and leads to unpredictable results.

As Lyle Denniston explains at SCOTUSBlog, it’s impossible to know whether any of the other justices voted to grant cert — though, obviously, there were not four who wanted to hear the case. Perhaps the fractured nature of the last religious display case the Court decided, Salazar v. Buono  (2010), which also involved a cross on public property, has chastened the justices and made them reluctant to try again so soon. Perhaps there were problems with the record. Perhaps the justices who favor abandoning the endorsement test cannot yet agree on a substitute and don’t want to confuse things even more. One fact is clear. Public religious displays continue to generate an enormous amount of interest. The Court received 46 amicus submissions in support of cert in the Utah case. — MLM

Posted on by L&R Forum

McGarvie on Sehat’s “The Myth of American Religious Freedom”

Mark Douglas McGarvie (University of Richmond) has posted a review of David Sehat’s The Myth of American Religious Freedom. An abstract follows. – ARH

The nature and extent of Americans’ commitment to religious freedom has become both a popular historical subject and the source of a very contentious historiography noteworthy for its considerable variation in quality. Thankfully, three publications in recent months have significantly improved the level of academic discourse on this important topic while adding to our historical understandings. Together they form an excellent basis for a synthesis of our current thinking aboutlaw and religion.

The first of these, Sarah Barringer Gordon’s The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010), highlights the contrasting views of law—popular and technical—held, respectively, by spiritual activists and legal professionals and describes how, over the last seventy years, they intersected sufficiently to form the confusing accommodationist position taken by the Supreme Court since the 1980s. Published shortly thereafter, Derek H. Davis’s edited collection, The Oxford Handbook of Church and State in the United States (2010), contains twenty‐one interpretive and analytical essays establishing the current state of our historical understanding on a variety of subjects relevant to the relationship between law and religion. David Sehat’s book offers another intelligent and even‐handed analysis of this troubling historical issue, providing a new interpretation of the tension between American liberal and Christian worldviews and the institutions formed to express them.

Posted on by Mark Movsesian

Walbridge on Rationalism in Islam

From John Walbridge (Indiana), God and Logic in Islam: The Caliphate of Reason (Cambridge 2010). Walbridge argues that rationalism has traditionally characterized fiqh and will do so again. A description follows. — MLM

This book investigates the central role of reason in Islamic intellectual life. Despite widespread characterization of Islam as a system of belief based only on revelation, John Walbridge argues that rational methods, not fundamentalism, have characterized Islamic law, philosophy, and education since the medieval period. His research demonstrates that this medieval Islamic rational tradition was opposed by both modernists and fundamentalists, resulting in a general collapse of traditional Islamic intellectual life and its replacement by more modern but far shallower forms of thought. However, the resources of this Islamic scholarly tradition remain an integral part of the Islamic intellectual tradition and will prove vital to its revival. The future of Islam, Walbridge argues, will be marked by a return to rationalism.

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El-Bialy & Gouda on The Possible Role of Religion in Fighting Software Piracy

Nora El-Bialy and Moamen Gouda (University of Hamburg and Philipps University Marburg) has posted Enforcing IPR Through Informal Institutions: The Possible Role of Religion in Fighting Software Piracy. The abstract follows. – ARH

The existence of formal IPR laws can be considered a prerequisite for having efficient law enforcement but does not imply efficient enforcement in itself. A simple model is constructed to explain the interplay between the IPR law and human behavior within counterfeiting countries. It shows how a politically monitored IPR enforcement strategy is able to alter formal IPR laws or institutions but might not affect informal institutions, or human morals and behavior, to the same extent, hence barely affecting piracy situation. The model shows the essential role of informal institutions and its sanction mechanisms in the enforcement process. The main obstacle of IPR enforcement is that people are still not convinced that IPR violations are unethical. Religion can be considered an informal institution that might support or hinder formal laws issued with regards to IPR and hence influence de facto enforcement of laws,especially in countries with high piracy rate if a high adherence to religion is found. As the Religion-Loyalty Index (RLI) developed by this study shows, Muslim countries have the highest religiosity level among different religions. Consequently, an investigation of how Islamic jurisprudence views IPR piracy is conducted. As Islam generally prohibits IPR piracy, a set of policy recommendations based on new institutional perspective is presented that can effectively help in minimizing IPR piracy in developing countries in general and Muslim ones in specific.

Posted on by Marc O. DeGirolami

Butler et al., “Religion in American Life: A Short History”

Oxford has published a second edition of Religion in American Life: A Short History (2011) by Jon Butler (Yale, history), Grant Wacker (Duke, Divinity School), and Randall Balmer (Columbia, religious studies).  The publisher’s description follows.  — MOD

This new edition of Religion in American Life, written by three of the country’s most eminent historians of religion, offers a superb overview that spans four centuries, illuminating the rich spiritual heritage central to nearly every event in our nation’s history. Beginning with the state of religious affairs in both the Old and New Worlds on the eve of colonization and continuing through to the present, the book covers all the major American religious groups, from Protestants, Jews, and Catholics to Muslims, Hindus, Mormons, Buddhists, and New Age believers. Revised and updated, the book includes expanded treatment of religion during the Great Depression, of the religious influences on the civil rights movement, and of utopian groups in the 19th century, and it now covers the role of religion during the 2008 presidential election, observing how completely religion has entered American politics.

Posted on by Marc O. DeGirolami

Constitutional Pressure Points

Here’s a series of events I found interesting.  This story reports that in 2006, the United States Conference of Catholic Bishops had been awarded a government contract for the provision of assistance to victims of human trafficking.  These contracts are awarded pursuant to the William Wilberforce Trafficking Victims Protection Act of 2000.  Earlier this October, the contract with the USCCB was not renewed by the government and it was awarded to three other non-profit organizations.  There is some speculation in the story that the reason the contract was not extended was the USCCB’s unwillingness to refer victims to abortion providers or supply birth control, but the government did not explain its decision.

In related news, in 2009, the ACLU of Massachusetts filed a federal action in the District of Massachusetts against the federal government alleging that its decision to award this contract to the USCCB violated the Establishment Clause.  Read more

Posted on by Marc O. DeGirolami

Campbell on 19th Century Approaches to Religious Exemptions

Wesley J. Campbell, a student at Stanford Law School, has posted a very interesting looking note, A New Approach to Nineteenth-Century Religious Exemption Cases.  The abstract follows.  — MOD

Scholars frequently cite early nineteenth-century cases to ascertain the original meaning of the Free Exercise Clause. Previous studies, however, have ignored crucial trends in those decisions, thus leading to mistaken emphasis on the denial of religious accommodation claims. This Note argues that prevailing theological views, skepticism of courtroom declarations of religious belief, and contemporary notions of judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. This novel approach clarifies previously unexplained tensions in early free exercise opinions. It also suggests that the Supreme Court’s holding in Employment Division v. Smith is inconsistent with many nineteenth-century decisions, notwithstanding Justice Scalia’s claim to the contrary in his concurrence in City of Boerne v. Flores.  Moreover, past studies have failed to appreciate the enormous midcentury shift in constitutional meaning in response to Mormon polygamy and widespread Catholic immigration. This transformation leaves originalism incapable of providing a consistent account of the Free Exercise Clause.

Posted on by Marc O. DeGirolami

Chinese Erastianism

An interesting post by Ian Johnson about the uses to which Daoism is being put by the Chinese government.  — MOD

Posted on by Marc O. DeGirolami

The Display of Catholic Images at The Catholic University of America

It is hard to know what to make of this story (h/t Professor Bainbridge).  What is most curious about it to me is the allegation by Professor Banzhaf that Muslims were compelled to “perform their prayers surrounded by symbols of Catholicism — e.g., a wooden crucifix, paintings of Jesus, pictures of priests and theologians which many Muslim students find inappropriate.”

It seems to me that there are two issues: (1) are there rooms on the CUA campus which do not contain such images or items (and, I suppose, were students prevented from gathering to use them for prayer)?; and (2) is the reference to these items’ “inappropriateness” one which is specifically limited to their inappropriateness as places of Muslim prayer, or is it a more general sense that displaying these images and items at CUA is inappropriate per se?

As to the first question, in my wonderful year at the law school at CUA, I can think off-hand of several rooms which did not display the complained-of images and items.  Indeed, I can even think of a few such rooms at the Salesian house near campus where I was lucky enough to sleep.  It does not seem to me that it would be difficult to find such a room on the CUA campus, though perhaps the claim is that the University willfully barred the students from access to these rooms.

As to the second question, I can understand that Muslims might not want to pray in a room bedecked with Catholic images.  On the other hand, if the claim is that these images are “inappropriate” for display tout court, I am not sympathetic to that claim.  — MOD

UPDATE: Please see this story, which reports that not a single Muslim student at CUA has complained either to the University or to Banzhaf.  At this point, as Banzhaf says, the complaint is written on Banzhaf’s behalf alone despite his attempt to solicit CUA students to sign on.  The standing requirements for filing a complaint like this must be quite generous.