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
Classic Revisited: Amar’s The Bill of Rights
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
Movsesian To Address Guild of Catholic Lawyers
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.
Symposium: Matters of Faith
The University of Alabama School of Law has posted podcasts of a symposium, held on October 14, entitled “Matters of Faith: Religious Experience and Legal Response.” Participants include Austin Sarat, Caroline Corbin, Meredith Render, Corey Brettschneider, Bryan Fair, Rick Garnett, Paul Horwitz, Steve Smith, and Bill Brewbaker. — MLM
Another Augsburgian Interlude
This one from eminent constitutional scholar and historian Michael
McConnell (Stanford law school):
The idea of civil control over the Church was difficult to maintain during the days of a single universal Catholic Church with its headquarters in Rome. Church-state relations in those days almost inevitably consisted of conflict and negotiation between two institutionally separate authorities: the Church in Rome and the civil power, usually the monarch, in various nations of Europe. Neither could completely control the other. With the outbreak of the Protestant Reformation, however, governmental power over each national church became more feasible. Indeed, with the Peace of Augsburg in 1555, the principle that the prince had authority to determine the religion for his nation (“cuius regio, eius religio”) became a staple of international relations.
Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2191 (2003). — MOD
Turner on the Zia’s Sacred Religious Symbol and Intellectual Property Law
Stephanie B. Turner (a student at Yale Law School) has posted The Case of the Zia: Looking Beyond Intellectual Property Law to Protect Cultural Rights. The abstract follows. –YAH
This Article focuses on an ongoing dispute in trademark law: the case of the Zia. Located near Albuquerque, New Mexico, this Native American pueblo has been using its sacred sun symbol in religious ceremonies since 1200 C.E. The symbol now appears on the New Mexico State flag, letterhead, and license plate, and on commercial products ranging from chemical fertilizers to portable toilets. The tribe claims that the State appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the tribe in violation of Section 2(a) of the Trademark Act. This Article tells the Zia story, focusing on the harms the tribe faces when others appropriate its symbol and the possible solutions. It concludes by suggesting that indigenous groups like the Zia should move beyond intellectual property laws in the fight to protect their cultural rights.
Westreich on Wife’s Right to Jewish Divorce
Avishalom Westreich (Academic Center of Law and Business) has posted The Wife’s Right to Divorce in Jewish Law: History, Dogmatics and Hermeneutics. The abstract follows. –YAH
The paper has two aims: historical and dogmatic. Historical, in studying two actual Jewish Law traditions in which divorce was issued at the wife’s demand, with analysis of the legal interaction between them; dogmatic, in examining the status of three legal concepts of unilateral termination of marriage derived from these traditions: coercion of a get (a Jewish writ of divorce), terminative conditions, and annulment of marriage. The two topics lead to one integrated outcome: exploring the status of the tools which enable issuance of divorce in Jewish Law against the will of a recalcitrant spouse.
Amar on the Establishment Clause as a Westphalian Resolution
Since the Treaty of Westphalia seems to be in the air here at CLR Forum, I thought I’d report a neat quote by renowned constitutionalist and Yale law professor Akhil Amar about the original Establishment Clause:
The original establishment clause, on a close reading, is not antiestablishment but pro-states’ rights; it is agnostic on the substantive issue of establishment versus nonestablishment and simply calls for the issue to be decided locally. (In this respect it is the American equivalent of the European Peace of Augsburg in 1555 and the treaty of Westphalia in 1648, which decreed that religious policy would be set locally rather than imperially.)
Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 34 (1998). Others have, of course, challenged Amar’s conclusion that the Establishment Clause did not create any substantive right at all (Donald Drakeman’s excellent book does this quite nicely), but I thought the Westphalian analogy was thought-provoking. — MOD
Conference: Culture, Religion, and Conflict Resolution (Nov. 8, 2011)
The Cardozo Journal of Conflict Resolution is sponsoring a symposium, “Culture, Religion, and Conflict Resolution: What’s Identity and Faith Got To Do With It?,” on November 8 in New York. Scholars will examine the effect of religion on estate planning, marriage and family life, and business dealings. Details are here. — MLM
The Personhood Amendment and Pragmatism
From the New York Times, a report on a proposed constitutional amendment in Mississippi that would declare a fertilized human egg to be a legal person. As the Times points out, the Personhood Amendment would effectively make abortion, as well as contraceptive methods like the morning-after pill that prevent the uterine implantation of a fertilized egg, a form of murder under state law. According to the Times, the amendment’s supporters speak in frankly religious terms. One is quoted as saying that the Amendment is “an opportunity for people to say that we’re made in the image of God.”
A couple of points. First, notwithstanding the Rawlsian critique, theological arguments like this are actually fairly rare in American politics, for understandable reasons. As a practical matter, if you want to persuade people in a pluralistic society, you’ve got to make arguments that appeal to different religious and ideological commitments; you’ve got to speak in an idiom that includes rather than excludes. (This may not be the case in Mississippi, concededly, where the amendment is popular and has the support of both the Democratic and Republican gubernatorial candidates). This explains why the right-to-life movement in America tends not to speak in strictly theological terms, but to rely on arguments from reason and, lately, embryonic Read more