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Albert on the Constitutional Politics of the Establishment Clause

Richard Albert (Boston College Law School) has posted The Constitutional Politics of the Establishment Clause. This article is based on his remarks at “The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?” a symposium recently held at Duquesne University School of Law.  Here is an earlier post on that Symposium.   The abstract of Albert’s article follows. – ARH

In these reflections presented at a Symposium hosted by Duquesne University School of Law on “The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?” I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court’s recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts – national interdiction, congressional disability, and state sovereignty – may yet again soon hold true if the Supreme Court continues on what appears to be its current path toward de-incorporating the Establishment Clause.

Posted on by Mark Movsesian

Day by Day

Marc, that’s all well and good about Messiaen, but for the source of contemporary Christian music in America, you need to check out Godspell, currently in revival on Broadway. At least that’s what Mark Oppenheimer of the New York Times thinks. — MLM

Posted on by Marc O. DeGirolami

Messiaen’s Quartet For the End of Time

Perhaps not quite strictly law and religion-related, but my son Thomas and I went to a concert of Olivier Messiaen’s “Quartet for the End of Time” this afternoon.  Messiaen is a wonderful 20th century French composer who created the quartet in 1941 as a POW in a German camp.  Messiaen met a clarinettist, a violinist, and a cellist in the camp; the only guy who had his instrument was the clarinettist, but they managed to get hold of the other instruments and debut the piece in the prison. 

The quartet, in 8 movements, is deeply informed by Messiaen’s abiding Catholicism.  It is “for the end of time” in two senses.  Messiaen takes the Book of Revelation as his inspiration.  His point of departure is Chapter 10, where the seventh angel descends and announces that “time shall be no longer” — the end of Time as the end of past and future and the beginning of eternity.  Messiaen’s time signatures are also iconoclastic in the piece; in fact, sometimes there is no definite rhythm at all (I don’t understand how the players were able to be in unison), and it was in this sense too that Messiaen wanted to convey the end of the usual 3/4 and 4/4 measured time in Western classical music.  Time is characterized throughout the piece as sad and weary, to be contrasted with the lively music of heaven.  The piece was challenging, but just great. 

Then, Thomas and I came home to watch our Patriots lose, as Time expired.  — MOD

Posted on by Marc O. DeGirolami

November 17: “What’s So Special About Religious Freedom?”

I’ve recently become aware (thanks to Rick Garnett’s and Mark’s respective posts) of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, which I’ve blogrolled in our links.  It looks like a terrific resource.

On November 17, the Berkley Center will hold a conference titled, “What’s So Special About Religious Freedom?” which features a debate between Michael McConnell and Noah Feldman, as well as various other discussions.  — MOD

Posted on by Marc O. DeGirolami

“Bias”?

This story asks whether the current political tradewinds exhibit an anti-Catholic “bias” and I think it circles around a fairly sensible answer.  The reflection is occasioned by some of the events that we have been discussing at CLR Forum. 

Usually when people use the term “bias,” they mean some sort of totally irrational judgment which is also unfair and perhaps even unintelligible.  But if this is the meaning of “bias,” it does not seem to me to apply in this context.  We are living in an age when (some of) the beliefs and moral views of the Catholic Church are being (or, perhaps better, have been) rejected, but the reasons for the rejection generally do not strike me as irrational or unfair, let alone unintelligible.  Just as the reasons adduced by Catholics for the positions that they hold are not irrational or unintelligible, so too are the opposed reasons not “biased” in this way.  In fact, it sometimes seems to me that the epithet “bias!” slips a little too easily from the mouths of the warring camps, as a rapidly economical way to delegitimize the much more difficult and entrenched problem of genuinely intractable disagreement.  — MOD

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Philpott on Christians after the Arab Spring

On the website of Georgetown’s Berkley Center for Religion, Peace, & World Affairs today, Daniel Philpott has a good post concerning Middle East Christians. Here’s a sample:

The position of today’s Arab Christians is indeed precarious. Among the possible outcomes, Islamist regimes that afford Christians little freedom to practice their faith or participate in politics are entirely plausible. But this outcome is far from inevitable, no more inevitable than was the persistence of dictatorship. Only this past week, elections in Tunisia, the country that ignited the Arab Spring, gave a plurality of votes to an Islamic party, but one that is relatively liberal and that will rule in coalition with non-religious liberal parties. In Egypt, too, the possibilities are more complex than secularist safety and Salafist violence. When Christians are attacked it is not always at the hands of Muslims. The shooting of Christian demonstrators in Cairo this past October 9th was carried out by the army. When Muslims have attacked Christians, far more have defended them. Just after Muslim terrorists slaughtered 25 Coptic worshippers and injured some 100 others in Alexandria on New Year’s Day of this year, thousands of Muslims across the country gathered in candlelight vigils and formed human chains around Coptic churches during worship. Today, Egyptian Muslim office-seekers are divided among proponents of a strongly Islamic state and supporters of liberal rights, including religious freedom for Christians. The scenario of religious freedom, then, is plausible, too.

By the way, CLR Forum reviewed Philpott’s recent book, God’s Century (2011) (with Monica Duffy Toft and Timothy Samuel Shah), this summer. Have a look at our review, here. — MLM

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“They Can Have a Statement of Faith, As Long As They Don’t Act on It.”

George Will has a good column this week on an ongoing controversy at Vanderbilt University. According to Will, Vanderbilt has placed the Christian Legal Society (CLS) on probation because CLS requires that its members adhere to specified religious beliefs, including the belief that homosexual conduct is sinful. This requirement violates the University’s nondiscrimination policy, which forbids a student organization from discriminating, among other reasons, on the basis of religious belief. Actually, that’s not quite right. Apparently, a student group may require in theory that members share the group’s beliefs; the group just cannot enforce the requirement. In the words of one Vanderbilt administrator, groups “can have a statement of faith and conduct of behavior, and this in itself is not discriminatory. But they would not be able to deny or remove any member based on their Code of Conduct. They can have a statement of faith as long as they don’t act on it.”

Judging from reports, Vanderbilt has adopted an all-comers policy of the sort the Court upheld two terms ago in CLS v. Martinez. Assuming Vanderbilt applies the policy in a neutral way, the policy seems constitutional under current law. But given Vanderbilt’s stated goal of promoting diversity on campus, the policy is very misguided. What’s the point of allowing students to form a religious organization – or an atheist organization, for that matter – but requiring the organization to open its membership to people who don’t share its beliefs? Does it make sense to require an environmentalist group to admit members who don’t endorse environmentalism, or an Orthodox Jewish group to admit members who refuse to keep kosher? The Vanderbilt policy, as Will points out, does not promote diversity on campus; it promotes conformity. Of course, Vanderbilt could argue that certain beliefs are unacceptable for its student groups to have, and that it is denying CLS recognition for that reason. That would be coherent; but it is not what Vanderbilt is arguing.  – MLM

Posted on by Mark Movsesian

Requiring Nurses to Perform Abortions

Another case raising the issue of so-called conscience exemptions: this week, a group of 12 hospital nurses in New Jersey brought suit against their employer, the University of Medicine and Dentistry of New Jersey (UMDNJ), for requiring them to participate in abortions. The plaintiffs allege that the hospital’s actions violate the “Church Amendment,” a federal law which forbids hospitals receiving federal funds, like UMDNJ, from requiring employees to participate in abortions if participation would violate the employees’ “religious beliefs or moral convictions.” The plaintiffs allege that the hospital’s actions violate state law as well. As my friend Rick Garnett at Mirror of Justice notes, this seems to be a pretty blatant violation of law, but, based on a student note I read recently, it’s not all that unusual. The complaint in the case, Danquah v. UMDNJ, is here. — MLM

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Gavison on the Law of Return

Ruth E. Gavison (Hebrew University of Jerusalem) has posted The Law of Return at Sixty Years: History, Ideology, Justification. The abstract follows. – JKH

The Law of Return, passed unanimously by the Knesset with much excitement and elation in 1950 on the day commemorating Theodor Herzl, establishes the principle that ‘every Jew is entitled to come to this country as an Oleh’ and lays the foundation for the preference given to Jews in Aliyah and in the acquisition of citizenship in Israel. The law is considered one of the primary expressions of Israel as a Jewish state. In this position paper the author rejects the principal claim of the law’s opponents, that the preference given to Jews in Aliyah to Israel is either unjustified or needs to be limited in time. Read more

Posted on by Marc O. DeGirolami

God, Trust, and Employment

Here is a story about how the President stated that God is interested in people having jobs, and that Congress ought to stop debating whether to reaffirm the motto, In God We Trust — one which sometimes rankles deeply committed separationists or endorsement-ists in Establishment Clause jurisprudence.  It seems the President and his opponents could make common cause: if God really cares about people having jobs, let’s not do anything to upset Him. — MOD