Jessie Hill (Case Western Reserve University School of Law) has posted (Dis)Owning Religious Speech. The abstract follows.
To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality.
The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its own speech a facially religious monument of the Ten Commandments. The second, Salazar v. Buono, which dealt with an establishment clause challenge to a Latin cross in the middle of the Mojave Desert National Preserve, was resolved primarily on the basis of the literal ownership of the religious speech at issue in the case. What both cases have in common is a claim, on one side, that the government has improperly and unconstitutionally excluded one religious group, both literally and metaphorically, and a response, on the other side, that is formulated in the language of ownership, property, and sovereignty.
This Article explores the possible causes and implications of the Court’s recent embrace of property concepts and property rhetoric. It argues that the Court has turned to the language and even the law of property partly as a way of avoiding knotty First Amendment questions. But the rhetoric of property functions on another level, as well. Property rhetoric legitimates and naturalizes the acts of exclusion and subordination inherent in the Court’s decisions. It also gives the appearance of a concrete stake held by some in the religious majority – and a material loss that is incurred – when dominant religious symbols are removed. Ultimately, this article concludes that, for all their flaws, the endorsement test and public forum doctrine, which the Court appears to have temporarily marginalized, are superior approaches to the problem of public displays of religious symbolism.
Andrew Koppelman (Northwestern University School of Law) has posted an interesting piece, Justice Stevens, Religious Enthusiast. The abstract follows.
It is sometimes alleged that Justice John Paul Stevens is hostile to religion. In fact, however, Justice Stevens espouses a position with religious roots and enthusiastically embraces a distinct conception of religion. This casts doubt on the claim, made in different ways by Eduardo Peñalver and Christopher Eisgruber, that the fundamental concern of his religion clause jurisprudence is equality. At least as important to him is protecting religion from corruption by the state.
Stevens’s position, in order to be consistent, ought to acknowledge, more forthrightly than he does, that it treats religion as a distinctive human good. Any notion of corruption implies a norm or ideal state from which the corruption is a falling off. An invocation of the corruption rationale presupposes that religion is a good thing deserving of protection. To call this view hostile to religion is confused to the point of perversity.
The Court’s decision was unanimous in Hosanna-Tabor. Given some of the language in Chief Justice Roberts’ decision, I find that rather surprising — particularly because some thought that there was a reasonable chance that we would see multiple opinions in this case going in all sorts of directions.
Unanimity in religion clause cases is uncommon. In part that’s because they tend generally to be fairly controversial, in part because (as Greg Sisk and Michael Heise have shown) they tend to map onto a Justice’s political ideology (not always, but fairly often). Unanimity as to the judgment happens once in a while. Unanimity as to the judgment and the reasoning is extremely rare.
I’m still digesting the Court’s unanimous decision in Hosanna-Tabor. But I thought to note something interesting (to me), given my current book project titled Tragedy and History: The Quality of Religious Liberty.
In this post over at Mirror of Justice a few months ago, I predicted that the Court would issue a decision that reflected a highly particularized and deeply historically informed sensibility — historical both in a social and doctrinal fashion. I think that Chief Justice Roberts’s majority opinion does just that. Take a little tour of the decision with me.
Here is the text of the decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The decision in favor of Hosanna-Tabor was 9-0, in a majority opinion authored by Chief Justice Roberts and with concurrences by Justice Thomas and Justice Alito (joined by Justice Kagan).
More in a bit after I’ve read the decision.
This looks like a terrific new book, Equality, Freedom, and Religion (OUP 2012) by philosopher Roger Trigg (Warwick). The conflict of a thick egalitarianism and religious liberty is a constant and ever-increasing force in American legal and cultural life, and this book takes a global perspective on the issue. The publisher’s description follows.
Is religious freedom being curtailed in pursuit of equality, and the outlawing of discrimination? Is enough effort made to accommodate those motivated by a religious conscience? All rights matter but at times the right to put religious beliefs into practice increasingly takes second place in the law of different countries to the pursuit of other social priorities. The right to freedom of belief and to manifest belief is written into all human rights charters. In the United States religious freedom is sometimes seen as ‘the first freedom’. Yet increasingly in many jurisdictions in Europe and North America, religious freedom can all too easily be ‘trumped’ by other rights.
Roger Trigg looks at the assumptions that lie behind the subordination of religious liberty to other social concerns, especially the pursuit of equality. He gives examples from different Western countries of a steady erosion of freedom of religion. The protection of freedom of worship is often seen as sufficient, and religious practices are separated from the beliefs which inspire them. So far from religion in general, and Christianity in particular, providing a foundation for our beliefs in human dignity and human rights, religion is all too often seen as threat and a source of conflict, to be controlled at all costs. The challenge is whether any freedom can preserved for long, if the basic human right to freedom of religious belief and practice is dismissed as of little account, with no attempt to provide any reasonable accommodation. Given the central role of religion in human life, unnecessary limitations on its expression are attacks on human freedom itself.
In the latest turn in a long-running litigation, a Virginia trial court ruled last night that breakaway parishes must vacate church property, including the landmark Falls Church in suburban Washington, DC (left), and return possession to the Episcopal Diocese of Virginia. In 2005, several Virginia parishes voted to leave the Diocese over a dispute, among other things, about the ordination of openly gay clergy. These parishes affiliated themselves with a new denomination, the Anglican Church of North America, but continued to occupy their existing church buildings, to which they claimed a right under Virginia law. When the Diocese sued, state courts initially sided with the breakaway parishes. The Virginia Supreme Court ruled, however, that those courts had relied on an unconstitutional statute and remanded the case. Yesterday’s decision, on remand, favors the Diocese. The breakaway parishes say that they are reviewing the latest decision. In recent months, courts in New York and Georgia also have ruled against breakaway congregations in church property disputes involving the Catholic, Episcopal and Presbyterian Churches.
Ilya Somin has the story and comments:
If the Islamists consolidate power and make serious progress towards implementing their agenda, Egypt 2011-12 could easily join Russia 1917, Cuba 1959, and Iran 1979 as a classic historic example of a case where a bad regime was overthrown only to be replaced by one that is much worse.
The United States Court of Appeals for the Tenth Circuit recently affirmed a preliminary injunction against an Oklahoma constitutional amendment forbidding consideration of Sharia by its state courts. The amendment forbade Oklahoma courts from considering international law, the legal precepts of other nations and cultures, and, expressly, Islamic Sharia. The amendment did not expressly forbid consideration of any other religion’s legal precepts and, thus, the Tenth Circuit determined it violated the First Amendment’s Establishment Clause because it constituted a government’s disfavoring one religion against others. See Larson v. Valente, 456 U.S. 228 (1982). The plaintiff had directed in his will that his estate be probated according to Sharia, a directive that would be unenforceable under the amendment. The Tenth Circuit did not credit Oklahoma’s argument that the amendment forbade considering all religious law: Based on the amendment’s text, the court determined that it singled out Islam because, again, the amendment expressly mentioned Sharia only. On remand, the district court must consider whether to make its preliminary injunction permanent. Read the case, Awad v. Ziriax, No. 10-6273, 2012 WL 50636 (10th Cir. Jan. 10, 2012), here. (Note that the provision was jingoistically entitled the “Save our State” amendment.)