The Journal of Catholic Legal Studies at St. John’s University School of Law (which I am privileged to advise) has just published its new issue, which contains a symposium dealing with the question, “Whom Should a Catholic Law School Honor?” and a book symposium on Professor Robert Vischer’s Conscience and the Common Good: Reclaiming the Space Between Person and State (CUP 2009). — MOD
Classic Revisited: Cord’s Separation of Church and State
It can sometimes seem as if we in the 21st century are in a state of greater confusion — greater uncertainty and greater disagreement — than prior generations about the nature of our constitutional commitments. And yet often this is not so at all. One example involves the perennial academic contestation about the meaning of the Establishment Clause, which has a rich history all its own.
Today’s classic revisited is Robert Cord’s Separation of Church and State: Historical Fact and Current Fiction, first published thirty-odd years ago in 1982 (unfortunately, I cannot find an image for the book cover). Cord argued that the strict separationism championed by scholars like Leo Pfeffer a generation before (who was himself engaged in a protracted debate with James O’Neill) simply did not represent a sound understanding of the original meaning of the Establishment Clause. Cord’s was a strike for the “non-preferentialist” interpretation, and it is an account well-worth reading not only for the evidence that Cord marshals, but also for its historiographic importance — as a scholarly moment in the perpetual conflict over the proper relationship between church and state. Take a look at Cord! — MOD
The Retributivist Tradition and Its Future: A Conference at St. John’s on November 4
If you are in or about New York City on November 4, please consider
attending The Retributivist Tradition And Its Future at St. John’s University School of Law. The conference will take up many of the chapters in Retributivism: Essays on Theory and Policy (Mark D. White, ed., 2011). My own small contribution to the conference, which I’m still chewing over, might be titled something like, “The Retributivst Tradition As Its Future.”
The conference description follows and the program is after the jump. Hope you can make it.
Retributivism as a justification of punishment is a very old idea, with sources in ancient codes of religious law and morality. After a period of dormancy in the 20th century, retributivism is now ascendant again as a theory of punishment, as scholars have reinterpreted the commitment to just desert in novel and provocative ways.
This conference, The Retributivist Tradition and Its Future, brings together leading thinkers in punishment theory to reflect on retributivism’s past and present, with an eye toward what retributivism and punishment theory generally might become. Many of the speakers are also contributors to the recently published volume, Retributivism: Essays on Theory and Policy (Mark D. White, ed., OUP 2011), which will also be considered at the conference.
European Court of Justice on Human Dignity and the Patentability of Human Embryos
An interesting judgment from the European Court of Justice this week relating to work with human embryonic stem cells: In response to a certification from the German Federal Court of Justice, the ECJ held that the European Directive on the Legal Protection of Biotechnological Inventions (1998) forbids the patenting of human embryos, or techniques that require the destruction of human embryos, for industrial or commercial purposes, including purposes of scientific research. The Directive prohibits patents for “uses of human embryos for industrial or commercial purposes,” and indicates that this prohibition extends to all processes that “offend against” the fundamental principle of “human dignity.” The ECJ concluded that the Directive’s reference to “human dignity” required that the phrase “human embryo” be “understood in a wide sense” to include not only fertilized human eggs, but also unfertilized eggs and stem cells, if they are “capable of commencing the process of development of a human being.”
The concept of human dignity is a fundamental one in European law; many religious-freedom cases in the ECtHR employ it, for example. The concept is not so prominent in American jurisprudence, which tends to be more libertarian. Some scholars argue that roots of the principle in European law lie in Catholic Social Theory, and the principle is certainly consistent with Christian ethics. I assume that, like most concepts in European jurisprudence, the principle has roots in Enlightenment thought as well. The judgment is Brüstle v. Greenpeace (Grand Chamber) (18 Oct. 2011). – MLM
Pathan on the Status of Women in Islam
Parveen Ara Pathan has posted Idea of Right of Maintenance of Woman in Islam and Socio Legal Development in India. The abstract follows. -JKH
Challenging status of woman in society is not an exception in reference to India but she shares a common bonding in this regard with every woman in the world. Her status is defined in vague terms everywhere irrespective of any country orreligion, she lives in or religion she follows. But in Islam a dignified status is given to every woman together with clear definitions of her rights allotted through Holy Quran, Sunna, and other sources of law. Right of maintenance is the basic right of livelihood of woman, includes not only the means of survival but also a right to dignified life full of respect and facilities. In every phase of her life as a daughter, wife, mother, widow, or divorcée she is entitled to right to be maintained in well condition throughout her life. In developing country like India her right of maintenance is not affected by the socio economic policies. This article focus on status of woman in Islam, her right of maintenance as given in Islam with relating legal provisions as in Indian legislation together with difficulties faced by Indian Muslim women in their fight of maintenance. A thought provoking discussion on relation of right of maintenance and human rights is also included.
Bowen’s “Can Islam Be French?”
Princeton University Press has just published the paperback edition of Can
Islam Be French?: Pluralism and Pragmatism in a Secularist State (first published in 2009) by John R. Bowen (Washington University St. Louis). The publisher’s description follows. — MOD
Can Islam Be French? is an anthropological examination of how Muslims are responding to the conditions of life in France. Following up on his book Why the French Don’t Like Headscarves, John Bowen turns his attention away from the perspectives of French non-Muslims to focus on those of the country’s Muslims themselves. Bowen asks not the usual question–how well are Muslims integrating in France?–but, rather, how do French Muslims think about Islam? In particular, Bowen examines how French Muslims are fashioning new Islamic institutions and developing new ways of reasoning and teaching. He looks at some of the quite distinct ways in which mosques have connected with broader social and political forces, how Islamic educational entrepreneurs have fashioned niches for new forms of schooling, and how major Islamic public actors have set out a specifically French approach to religious norms. All of these efforts have provoked sharp responses in France and from overseas centers of Islamic scholarship, so Bowen also looks closely at debates over how–and how far–Muslims should adapt their religious traditions to these new social conditions. He argues that the particular ways in which Muslims have settled in France, and in which France governs religions, have created incentives for Muslims to develop new, pragmatic ways of thinking about religious issues in French society.
Conference on Religious-Defamation Bans, Islamophobia, and the First Amendment (Nov. 4)
The Federalist Society’s International and National Security Law Practice Group is hosting an interesting-looking conference in Washington on November 4 on religious-defamation bans, Islamophobia, and the First Amendment. Speakers include Bruce Bawer, Naser Khader, Nina Shea, Paul Marshall, Paul Diamond, Jacob Mchangama, Mark Durie, Amjad M. Khan, David Forte, David Rivkin, and Samuel Tadros. A complete description is here. — MLM
Bartrum on the Ministerial Exception
Ian Batrum has posted Religion and Race: The Ministerial Exception Reexamined. The abstract follows. — MLM
This essay is a contribution to the Northwestern University Law Review’s colloquy on the ministerial exception, convened following the Supreme Court’s decision to hear arguments in Hosanna-Tabor v. EEOC. I take the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. I offer historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, I suggest that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.
Weddle & New on Religious Conservative Opposition to Anti-Bullying Legislation
Daniel B. Weddle (University of Missouri – Kansas City School of Law) and Kathryn E. New (recent graduate of University of Missouri – Kansas City School of Law) have posted What Did Jesus Do?: Answering Religious Conservatives Who Oppose Bullying Prevention Legislation. The abstract follows.—YAH
Conservative Christian organizations assert that anti-bullying programs are a stealth effort by gay activists to introduce into American schools an aggressive lesbian, gay, bisexual, transgender (LGBT) agenda. They contend that legislation and bullying prevention programs that mention gays are an attempt to indoctrinate children to embrace homosexual lifestyles; tolerate homosexual behavior; and celebrate homosexuality, bisexuality, and transgender identity. These voices are having an impact on state legislatures and the damage is immense. Educational research has made clear the devastating effects of bullying upon children, and LGBT students are among the most often targeted and least protected students. Given that schools are already failing to address bullying effectively, efforts to thwart protection of any group of students — especially one that is routinely targeted — is unconscionable. Yet these devoted Christians zealously interfere with protection of LGBT students from abuse by their peers and believe wholeheartedly that they are doing children and Christ a great service. We believe they fundamentally misunderstand three things: the dynamics of bullying, the law pertaining to student-on-student abuse, and the example and teachings of Christ. This Article addresses these misunderstandings. We propose a response to the distortions that are used to promote what is an anti-gay agenda that represents neither the teachings of the Bible nor the position of most Christians and evangelicals, whom these organizations purport to represent. Our hope is that, once the distortions are debunked, thinking Christians will reject the misguided efforts of a relatively few but influential individuals and organizations. If new voices can confront the misleading claims of anti-gay zealots with informed educational, legal, and Biblical responses, perhaps the distortions will be seen for what they are by Christians and non-Christians alike.
The Talking Cure Redux
In this post from a few weeks back, I registered some thoughts about the current media interest in taking religion seriously. That post was about the rather low probability that media attention to a candidate’s references to religion, or about how a religious tradition has shaped the candidate’s political judgment, will enhance the voting public’s understanding of the candidate and his or her views. Much more probable, I claimed, was that religion would be used strategically by the journalist or media member in a clownish fashion simply to reaffirm and harden the author’s pre-existing political views and opinions, or those of her audience.
I noted that one often hears two kinds of response to this claim, which I called Response One and Response Two. Response One is to blame the candidate — the door was opened by the candidate, and the media and the rest of us went through. In the rough and tumble of politics, religion can be either the candidate’s rhetorical armor or the sharp stick with which he can be gleefully gored by his opponents. Response Two had to do with good faith and searching engagement with the candidate’s religious views to understand his political outlook. Response One, I argued, far better represented the profound shallowness of our current political culture (with honorable exceptions, to be sure).
I know that citations to Maureen Dowd’s work are generally met with dyspepsia, but she does write for the leading newspaper in the nation, and this column about Mitt Romney and the Church of Jesus Christ of Latter Day Saints seems to me to be an exemplar of Response One engagement with religion. Note, first, the opening-the-door move at the end of the piece — that the candidate is fair game for the media hunter loaded for bear: “Republicans are the ones who made faith part of the presidential test. Now we’ll see if Mitt can pass it.” And the entire point of the column is to ridicule, to laugh, to dismiss, to giggle, to smear, and to lampoon — all in the service of scoring cheap and shallow political points. What else? That’s simply the nature of the game.
The surprising thing is not, of course, that Dowd would write a column like this. Nor is it that Response One discourse is far and away the dominant form of public engagement with religion — in the nation’s leading newspaper perhaps even more than anywhere else. The surprising thing is that we academics would ever think otherwise, that we would imagine that because Response Two sometimes (though not always) can be found in the academy, that it must also have traction in today’s political climate. The surprise is that we would delude ourselves that Response Two might someday supplant Response One, or at least that we might eventually get more of Response Two engagement if we let loose the Response One dogs. What we will get is what we largely always get from political speech-making and the media’s political reaction to it, whether religion gets sprinkled in or not: low-grade chatter. — MOD