Posted on by Marc O. DeGirolami

Magarian on Justice Stevens’s Religion Clause Jurisprudence

Gregory P. Magarian (Wash. U. St. Louis, and a former law clerk to Justice John Paul Stevens) has posted Justice Stevens, Religion, and Civil Society.  The abstract follows.  — MOD

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his thirty-five years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he opposed exempting religious believers from laws that interfered with religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with hostility toward religion. This Article debunks that conventional analysis and offers a new explanation of Justice Stevens‘s religion jurisprudence. The Article shows that Justice Stevens took the same approach to constitutional cases about churches that he took to constitutional cases about other powerful institutions of civil society, including the major political parties and voluntary membership associations. Justice Stevens resisted these varied civil society institutions‘ demands for increased constitutional autonomy, based on two persistent concerns. First, Justice Stevens sought to constrain civil society institutions‘ coercive power over individuals. Second, he viewed civil society institutions‘ tendencies toward factionalism as a threat to national unity. Justice Stevens did not consider religion a special object of constitutional concern, let alone a special object of disdain. This descriptive insight permits a fresh normative assessment of Justice Stevens‘s religion jurisprudence. Justice Stevens‘s anti-coercion principle provided the driving force behind his Establishment Clause opinions. The Article finds the anti-coercion principle normatively compelling in the abstract and well adapted to Establishment Clause disputes. In contrast, Justice Stevens‘s anti-factionalism principle drove his opinions about free exercise accommodations. The Article finds the anti-factionalism principle normatively problematic in general and particularly ill-suited to the problem of free exercise accommodations.

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NYC Bar Association Event on Religious Minorities in the Middle East

The New York City Bar Association sponsored an interesting panel this week on “Religious and Ethnic Minorities in the Middle East.”  The panel discussed the current plight of minority groups like Copts, Kurds, Baha’is, and Jews.  Ashraf Ramelah, Founder and President of the Human Rights organization “Voice of the Copts,” began by discussing the Coptic community in Egypt.  Ramelah highlighted recent attacks on the Copts and expressed concern for their future during this period of transition.  He stressed the importance of fair and unbiased news regarding Copts, something he said has been lacking in Egypt for some time.

Anthony Vance, Director of U.S. Baha’i Office of External Affairs for the National Spiritual Assembly, highlighted the dangers faced by the Baha’i community in Iran.  Vance insisted that much of the Iranian population has been desensitized by media propaganda and the lack of a free press.  He discussed ways that the United States, and the international community as a whole, could help Baha’is and other oppressed minorities in the Middle East, the most important being use of the media and internet to stop the spread of misinformation.

Abe Greenwald, Senior Editor of Commentary, discussed the Kurdish population in Iraq.  He explained that although the overwhelming majority of Kurds are Muslim, there are Christian and Jewish Kurds as well.  He spoke of Iraq’s long history of exploiting Kurds.  Although the Kurdish community is relatively safe now, they face serious threats once the American military leaves Iraq. Read more

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Howard on the Expanding Scope of Religious Discrimination Law in the EU

Erica Howard (Middlesex University) has posted EU Equality Law: Three Recent Developments. The abstract follows. – JKH

This article analyses three recent developments within the EU that have an impact on EU equality legislation: the coming into force of the Treaty of Lisbon, the Proposal to extend the material scope of the provisions against discrimination on the ground of religion and belief, disability, age and sexual orientation beyond the area of employment, and the case lawof the European Court of Justice regarding the EU Equality Directives of 2000. It will assess whether these three developments have led to improved protection against discrimination for people in the EU.

Posted on by Mark Movsesian

Kahn on the Trial of Geert Wilders

In 2009, a Dutch court decided to prosecute right-wing politician Geert Wilders for hate speech. Wilders had made several highly critical comments about Islam and had produced a film, Fitna, that explored Islamist violence in a way that some people allege incites hatred against Muslims.  In June 2011, the court acquitted Wilders of all charges. Robert Kahn (St. Thomas – Minnesota)  has posted a piece, The Acquittal of Geert Wilders and Dutch Political Culture, that discusses Wilder’s case and its implications for multiculturalism. The abstract follows. — MLM

The June 23, 2011 acquittal of Geert Wilders has been viewed as a victory for freedom of speech over multiculturalism. While containing an element of truth, this framing has limitations. First, even as Wilders’ “triumphed” over multiculturalism he still cast himself as a champion of Dutch tolerance. Second, Wilders’ victory was a narrow one. The court, while acquitting, noted that Wilders went right to the line of permissible speech. Wilders acquittal does not necessarily portend an end of Dutch exceptionalism or its hate speech laws. Instead, the trial was noteworthy for (i) its obsession with the Nazi past, (ii) its debate over the rights and duties of a politician, and (iii) the conflict that arose between one of Wilders’ witnesses and an appeals court judge who in 2009 ordered the prosecutor to bring charges against Wilders.

Posted on by Mark Movsesian

English High Court Rules Catholic Priest Is Diocesan Employee, Raises Possibility of Vicarious Liability for Clergy Sex Abuse

A judge on the High Court of England and Wales ruled this week that a Catholic priest qualified as an employee of his diocese, thus exposing the diocese to vicarious liability for clergy sex abuse. The decision came in a case brought by a woman who claims that a priest abused her when she was a child. Although the priest did not have an employment contract with the diocese, the judge ruled, the diocese trained him, appointed him to his position, and held him out to the public as its representative. It provided “the premises, the pulpit, and the clerical robes” and sent the priest out into the community.

This is apparently the first time a court in the UK has held a priest to be an employee of his diocese. Dioceses usually lack day-to-day supervisory authority over priests; for this reason, courts often hold that priests are not employees, but independent contractors. The plaintiff’s victory may be less valuable than it appears, however. Vicarious liability exists where the employee commits torts while acting within the scope of his employment, and assaulting parishioners obviously falls outside a priest’s job description. The judge gave the diocese extended leave to appeal the decision. – MLM

Posted on by Marc O. DeGirolami

Gregory, “The Unintended Reformation”

Brad S. Gregory (Notre Dame) will shortly publish The Unintended Reformation: How a Religious Revolution Secularized Society (Harvard UP 2011).  The echoes of MacIntyre in this work — presented in a very interesting historical narrative  here — seem distinctive in the book’s description.  I am looking forward very much to reading this book.  The publisher’s description follows.  — MOD

In a work that is as much about the present as the past, Brad Gregory identifies the unintended consequences of the Protestant Reformation and traces the way it shaped the modern condition over the course of the following five centuries. A hyperpluralism of religious and secular beliefs, an absence of any substantive common good, the triumph of capitalism and its driver, consumerism—all these, Gregory argues, were long-term effects of a movement that marked the end of more than a millennium during which Christianity provided a framework for shared intellectual, social, and moral life in the West.

Before the Protestant Reformation, Western Christianity was an institutionalized worldview laden with expectations of security for earthly societies and hopes of eternal salvation for individuals. The Reformation’s protagonists sought to advance the realization of this vision, not disrupt it. But a complex web of rejections, retentions, and transformations of medieval Christianity gradually replaced the religious fabric that bound societies together in the West. Today, what we are left with are fragments: intellectual disagreements that splinter into ever finer fractals of specialized discourse; a notion that modern science—as the source of all truth—necessarily undermines religious belief; a pervasive resort to a therapeutic vision of religion; a set of smuggled moral values with which we try to fertilize a sterile liberalism; and the institutionalized assumption that only secular universities can pursue knowledge.

The Unintended Reformation asks what propelled the West into this trajectory of pluralism and polarization, and finds answers deep in our medieval Christian past.

Posted on by Marc O. DeGirolami · 1 Comment

Christmas Tree Tax on the Way

I cannot quite decide whether this report is in jest or not, but it appears to be real.  But if it is real, I am having a difficult time understanding the aims of the tax.  Why is it necessary to improve and expand the Christmas tree market?  What secular government purpose is at stake, other than improving the lot of people who sell Christmas trees?  And if that’s all that is at stake, why did the government choose Christmas tree sellers as opposed to a different group; say, clothes retailers or winter sled manufacturers?  At least on one currently popular understanding of the Establishment Clause, why is collecting revenue for the explicit purpose of promoting the image and marketability of a “sectarian symbol” like this not problematic?  — MOD

UPDATE: Thanks to my alert colleague, Mark, I see that the US Department of Agriculture has decided to delay imposition of the tax.  The Administration spokesman does not want to call it a tax, but prefers to call it a “fee” which the “industry group [is] deciding to impose . . . on itself.”  If that is the case, then why is the US Department of Agriculture involved in imposing the fee?  On the other hand, it appears from at least some accounts that none of the money is going to the federal government itself.

Posted on by Marc O. DeGirolami

Polish Group Demands Removal of Crucifix in Parliament

An interesting development in Poland, where the new left-wing party, “Palikot’s Movement,” which got some 40 seats in the most recent election, has demanded the removal of the crucifix that hangs in the Polish parliament (picture of the parliament at right, wooden crucifix at far left).  The reason given for the demand is that the presence of the crucifix violates the constitutional guarantee of a secular state.  The story reports that at least some of the resistance to removing the crucifix stems from its political and cultural importance in recent Polish history, including the role of the Catholic Church in overthrowing communism.  — MOD

Posted on by Mark Movsesian

Russia’s Proposed Abortion Law and the Influence of the Orthodox Church

From Reuters’s FaithWorld blog, a story about a proposed abortion law in Russia. The new law, which seems likely to pass, would ban all abortions after the 12th week of pregnancy, impose a one-week waiting period, and require women who are more than six weeks pregnant to view an ultrasound picture of the embryo and listen to its heartbeat before going through with an abortion. The new law has the strong backing of the Russian Orthodox Church, a powerful force in Russian society, and the FaithWorld story focuses on that angle.  I wonder how much the church is really driving things, though. Russia faces a demographic crisis; by 2050, the UN predicts, Russia’s population will have fallen by 20%, if current trends continue. And its abortion rate is the highest in the world, 73 per 100 births in 2009. So I suspect that secular forces support the new law as well; their influence may be the decisive factor. — MLM

Posted on by Marc O. DeGirolami · 1 Comment

Loathsome

Readers are no doubt aware of the horrifying charges arising out of the Penn State University incident, in which it is alleged that an assistant coach of the football team molested several boys and that several members in the front office of the football organization did not report the crimes.  If the charges are true, they are loathsome indeed.

Loathsome in a different way is this line in today’s New York Times column by Maureen Dowd: “Like the Roman Catholic Church, Penn State is an arrogant institution hiding behind its mystique.”  Whatever may be the viability of the charges against Penn State officials under Pennsylvania’s failure to report statute, or against specific clerics in the Roman Catholic Church in positions of power in entirely distinct cases (and they may well be legally viable), the blanket smear of this comment — its suggestion that all cases look alike, or that it is appropriate to indict an entire Church, whatever the facts may look like, for what Dowd perceives as “arrogan[ce]” — is, in my opinion, despicable. — MOD