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.
The NYC Bar Association is sponsoring a panel, “Religious and Ethnic Minorities in the Middle East,” at the Association’s headquarters at 42 W. 44th St. (b/w 5th and 6th Ave.), on November 8 at 6:30 pm. Speakers include Irwin Colter, Ashraf Ramelah, Shastri Purushotma, Malvina Halberstam, and Elizabeth Defeis. Details are here. — MLM
Today’s classic revisited is Akhil Reed Amar’s The Bill of Rights: Creation and Reconstruction (1998). Obviously the book contains more than simply a discussion of the religion clauses, but I’ll focus on one of the book’s virtues in respect of that specific subject: Amar’s explanation of the Establishment Clause’s incorporation through the Reconstruction Amendments. There is a near-universal consensus that the Establishment Clause as originally adopted did not apply to the states: states were free to retain their establishments (or, indeed, to create new ones). The very purpose of the Establishment Clause was, according to Amar, to leave this issue to the states. That underlying assumption, if accepted, fits extremely awkwardly with the issue of incorporation. Moreover, unlike many of the other provisions of the Bill of Rights, which announce restrictions on the exercise of federal power (“prohibiting” free exercise; “abridging” the freedom of speech; “violating” the security of persons against unreasonable searches and seizures, and so on), the Establishment Clause uses the more passive phrase “respecting” an establishment. That language is far less clear about the sense in which establishments were thought to be problematic per se. How then, to argue that incorporation as to the Establishment Clause was appropriate?
Amar does not just assume the viability of incorporation, as did the Everson Court (with, somewhat suprisingly, not a single dissenting Justice). Instead, he crafts an argument based in part on the approach of the national government to the federal territories, many of which were eventually to become states. As an initial matter, the Establishment Clause was to apply to the territories (though Article IV grants Congress plenary power over the territories). And what Congress could not do, the territorial agent could not do. But, as Amar says, “to say that, for example, the Iowa territorial legislature ‘shall make no law respecting an establishment of religion’ was rhetorically to say something rather different than that Congress should make no such law.” (249) With time, as some of the territories became states, what had begun as a federalism provision took on more substantive content as a general anti-establishment principle applicable to all of government. — MOD
CLR Director Mark Movsesian will be the speaker at the Guild of Catholic Lawyers First Friday program on Friday, November 4. His talk on the legal situation of Christians in the Middle East will begin at 8:15 am at the Church of Our Saviour, 59 Park Ave. (at 38th St.). For details, please contact Robert E. Crotty at Kelley Drye & Warren, LLP.