Posted on by Marc O. DeGirolami

Moran, “American Genesis”

Here is an interesting looking book about the issue of evolution and public schooling, American Genesis: The Evolution Controversy From Scopes to Creation Science (OUP 2012), by historian Jeffrey P. Moran (U. Kansas).  The publisher’s description follows.

The question of teaching evolution in the public schools is a continuing and frequently heated political issue in America. From Tennessee’s Scopes Trial in 1925 to recent battles that have erupted in Louisiana, Kansas, Ohio, and countless other localities, the critics and supporters of evolution have fought nonstop over the role of science and religion in American public life.

In American Genesis, Jeffrey P. Moran explores the ways in which the evolution debate has reverberated beyond the confines of state legislatures and courthouses. Using extensive research in newspapers, periodicals, and archives, Moran shows that social forces such as gender, regionalism, and race have intersected with the debate over evolution in ways that shed light on modern American culture. He investigates, for instance, how antievolutionism deepened the cultural divisions between North and South–northerners embraced evolution as a sign of sectional enlightenment, while southerners defined themselves as the standard bearers of true Christianity. Evolution debates also exposed a deep gulf between conservative Black Christians and secular intellectuals such as W. E. B. DuBois. Moran also explores the ways in which the struggle has played out in the universities, on the internet, and even within the evangelical community. Throughout, he shows that evolution has served as a weapon, as an enforcer of identity, and as a polarizing force both within and without the churches.

America has both the most advanced scientific infrastructure as well as the highest rate of church adherence among developed nations, and the issues raised in the evolution controversies touch the heart of our national identity. American Genesis makes an important contribution to our understanding of the impact of this contentious issue, revealing how its tendrils have stretched out to touch virtually every corner of our lives.

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Bateman on Nicaea and the Beginnings of State Sovereignty

C.G. Bateman (U. of British Columbia Faculty of Law) has posted Nicaea and Sovereignty: The Introduction of an Idea About the Beginnings of State Sovereignty. The abstract follows.

This research is concerned with the development of international law in so far as it relates to the historical background for the Peace of Westphalia, which itself is understood as a seminal event in the history of the growth of both the theoretical notion of sovereignty and, in its present milieu, as an attribute of states. My suggestion in this research is that the late antiquity transformation of the Christian church from spiritual and cultural governance to temporal imperial sovereignty in Europe suggests a trenchant indication of what Nicaea represented in terms of setting a trajectory for the church’s political sovereignty, a sovereignty which ultimately begun to be wrested back from it at Westphalia. This research suggests that the sovereignty which characterized the Late Antiquity Roman Empire under the Emperor Constantine was bequeathed to the Christian Church at Nicaea by fiat. In other words, this research is suggesting a starting point for the development of European sovereignty at which Europe’s most enduring institution of eighteen-hundred plus years was the main actor: the Roman Catholic Church.

Posted on by Marc O. DeGirolami

Sarah Posner’s Muddle

The occasions are rare when I find much to agree with in the columns of Sarah Posner, a writer for the blog “Religion Dispatches.”  But this particular column is a mess. 

The especially messy portion that I want to highlight is the discussion of the connection between the ministerial exception case, Hosanna-Tabor v. EEOC, and the recent decision of the Obama Administration to make permanent a rule which will require various religious employers  to provide their employees with health plans which cover services and products with which they have objections of religious conscience.  Posner says:

The Beckett [sic] Fund for Religious Liberty, which, as I reported in my long religious freedom piece, represents both a Catholic college and an evangelical university in challenging the rule, has issued a statement (tellingly calling the rule an “abortion drug mandate”) claiming that the rule will not withstand constitutional scrutiny. As other observers have noted, opponents of the contraception mandate have claimed that the Supreme Court’s recent decision in EEOC v. Hosanna-Tabor, which recognized a “ministerial exception” that prevents churches from being sued by “ministerial” employees under federal employment discrimination laws. [sic] The Beckett Fund makes this argument in its statement [sic], but legal observers have noted the narrow holding in that case. The opponents of the Obama administration decision like the Beckett [sic] Fund does in its statement, will attempt to make the Hosanna-Tabor into a broad statement against government interference in church affairs in an attempt to bolster their claims against the contraception mandate.

The second sentence in this paragraph is ungrammatical, so it is opaque to me what Posner means.  “Opponents of the contraception mandate”…claim what exactly?  They don’t seem to be making any claim about Hosanna-Tabor in the second sentence.  There is also a citation to the Becket Fund (as in Sir Thomas of Becket, not Samuel Beckett) and a document which it has produced purporting to challenge the contraception mandate by making an argument from the ministerial exception.  Could someone point me to the place where the Becket Fund makes that connection?  Or could someone point me to the place where anyone — anywhere — has made the claim that the holding in Hosanna-Tabor can be extended to “a broad statement against government interference in church affairs” which would render the contraception mandate unconstitutional?  I’ve been poring through documents about this issue on the Becket Fund site, and have not found any making this completely dubious connection.  Who, other than Posner in this column, is saying this?

UPDATE: Though the Becket Fund has not made the argument referenced by Posner, I am apprised that Matthew Franck at First Things makes a connection between Hosanna-Tabor and the contraception mandate in this post.  Franck says that Hosanna-Tabor stands for the view that “in the internal governance of religious organizations, the First Amendment permitted no government interference.”  Respectfully, that is not what the Court held.  The Court held that when it comes to hiring and retention decisions of those employees defined as “ministers” (however defined), anti-discrimination laws which apply to secular institutions do not automatically apply to religious organizations.  The case was narrowly limited to employment discrimination suits “brought on behalf of a minister.”  There is nothing in this holding which would apply to the contraception mandate.  It may be that the connection between the Hosanna-Tabor decision and the contraception mandate case is, as Franck also says, that the Obama Administration in both cases is taking hard-line and extreme positions.  But that is not a legal connection.

Posted on by Mark Movsesian

Nussbaum, “The New Religious Intolerance”

From Harvard University Press, a new book by Martha Nussbaum (University  of Chicago), The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age (forthcoming 2012). The publisher’s description follows.

What impulse prompted some newspapers to attribute the murder of 77 Norwegians to Islamic extremists, until it became evident that a right-wing Norwegian terrorist was the perpetrator? Why did Switzerland, a country of four minarets, vote to ban those structures? How did a proposed Muslim cultural center in lower Manhattan ignite a fevered political debate across the United States? In The New Religious Intolerance, Martha C. Nussbaum surveys such developments and identifies the fear behind these reactions. Drawing inspiration from philosophy, history, and literature, she suggests a route past this limiting response and toward a more equitable, imaginative, and free society.

Fear, Nussbaum writes, is “more narcissistic than other emotions.” Legitimate anxieties become distorted and displaced, driving laws and policies biased against those different from us. Overcoming intolerance requires consistent application of universal principles of respect for conscience. Just as important, it requires greater understanding. Nussbaum challenges us to embrace freedom of religious observance for all, extending to others what we demand for ourselves. She encourages us to expand our capacity for empathetic imagination by cultivating our curiosity, seeking friendship across religious lines, and establishing a consistent ethic of decency and civility. With this greater understanding and respect, Nussbaum argues, we can rise above the politics of fear and toward a more open and inclusive future.

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Garnett on School Choice and the Future of Catholic Schools

Nicole Stelle Garnett (Notre Dame Law School) has posted Are Charters Enough Choice? School Choice and the Future of Catholic Schools. The abstract follows.

This contribution to a Notre Dame Law Review symposium on “Law and Educational Innovation” critiques the oft-repeated assertion that private-school-choice programs, such as tuition vouchers or tax credits, are unnecessary because charter schools provide sufficient educational choices.  This essay is, in essence, a response to this “charters are enough,” argument. It proceeds from the simple reality that current education policy in most states offers Catholic school leaders an unacceptable ultimatum: If you want access to public education funds for your schools, then secularize and relinquish control of them. As a result of this ultimatum, Catholic schools will continue to close by the dozens in the inner city neighborhoods each year, and many of them will be replaced by charter schools, either by design or default. For reasons addressed in the essay, Catholic schools’ departure is a loss for civil society, especially for the urban communities where they have served for decades. Furthermore, it is a loss that could be mitigated by school-choice devices that make private schools financially accessible for the children living in these communities who desperately need the high-quality education that Catholic schools have long provided. Arguing that policy makers have failed to come to terms with the profound, unfortunate consequences of Catholic schools’ rapid disappearance from urban neighborhoods, the essay builds a case for a shift in education policy that embraces both charter schools and private-school-choice mechanisms.

Posted on by Marc O. DeGirolami

A Structuralist Musing on the Establishment Clause

The Constitution uses the word “Establishment” exactly twice.  The second time is familiar to CLR Forum readers: “Congress shall make no law respecting an establishment of religion…”  Do you know what the first reference is?  (No peeking!…the answer, a thought, and a question after the jump)

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Posted on by Mark Movsesian · 1 Comment

Halík on State Neutrality

Tomáš  Halík is a Czech philosopher and public intellectual. He is also a Catholic priest. In fact, he was an underground priest during the Communist years, so he knows something about state atheism. I’ve been reading his wise new book, Night of the Confessor: Christian Faith in an Age of Uncertainty (Random House 2012), in which he meditates on the possibility of Christian hope in the context of an increasingly post-Christian Europe. CLR Forum readers will be particularly interested, I think, in this passage, in which Halík discusses the relationship between state religious neutrality and state atheism:

Many people continue to confuse the desirable religious (or more precisely, denominational) neutrality of the state with a certain new type of state atheism. If atheism fails to be regarded as one of many “beliefs” and is exalted to the position or role of arbiter on the religious scene, it is capable of being even less tolerant than religion once was in the periods of history when it exercised political power. “Religious neutrality of the state” means a legally guaranteed space for religious freedom and plurality (including legitimate space for people who believe in atheism).

Posted on by Marc O. DeGirolami

What Does It Mean to Call a Judicial Decision Particularist?

Hosanna-Tabor has come and gone, with a flurry of commentary out of the gate  and now a bit of (perhaps welcome!) silence.  Last week, I described the decision as particularist, but I did not define the term.  Judicial particularism is a concept that I explore in my current book project, Tragedy and History: The Quality of Religious Liberty, but for purposes of this post, I thought to offer some quick-shot thoughts about what judicial particularism might mean — first what it does not, or need not, mean, and second what I believe it does, or at least could, mean. 

If judicial particularism is taken to mean only the simple and bland proposition that “context matters” in the adjudication of cases, then that seems fairly uncontroversial. Of course context matters.  Who would disagree?  Even those who prefer the ostensible discipline of hard rules in adjudication acknowledge that general rules are not self-applying and that the specifics of a case will and ought to affect the outcome. 

Judicial particularism also does not necessarily mean or imply adjudicatory narrowness, in the sense of deciding only the absolute minimum that one needs to dispose of the case.  It is true that often times particularistic judgments may also be narrow judgments.  Indeed, this is a position with great appeal.  But one could be both a judicial particularist and write a decision that intimates (perhaps subtly, in dicta, or perhaps implicitly, by failing to say anything) the resolution of other, future cases that are factually similar on similar grounds, or the resolution of other, future cases that are factually dissimilar on dissimilar grounds.

Following Jonathan Dancy’s work on moral particularism, I take the core of judicial particularism to be that it is possible to decide cases reasonably predictably without the necessity of relying on a single general value or principle, or even a set number of general values or principles, to do so.  The sting in particularism is not that ‘context matters’ but that reasons or values which are important in some specific context may not be so in others.  Reasons or values do not have either constant or categorical weight across a range of disputes, or even among cases within a range, so that what is a reason for reaching a judgment in one set of circumstances may not, as Dancy puts it, retain the same “polarity” in another set of circumstances. 

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Erne on Christian and Islamic Views on Human Rights

Jaanika Erne (University of Tartu) has posted Islamic and Christian Understanding of Fundamental Rights as Constitutive Values. The abstract follows.

Purpose – The paper attempts at introducing the main differences in Islamic and Christian human rights thought.

Design/methodology/approach – The paper uses the Old and New Testament, the Qur’an and the European Convention on Human Rights as ideological-theoretical framework with the aim to compare religions and values with the aim to define the compared religions. Definition of religions helps to better understand the tensions of a political character, an example brought by Jacob Neusner is the relationship between the State of Israel and its Muslim neighbors, served as a religious conflict (Neusner 1999: xi).

Findings – Although already the ten commandments in the Christian tradition and Islamic tradition to a great extent overlap, formulation of rights and interpretation of rights to a great extent differ in these traditions. The differences result even in the assertions that distinguish, the Islamic marketing approach from (not to say oppose to) the marketing approach in the Western countries by Islamic scholars who view the Western marketing approach as secular marketing approach
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Posted on by Mark Movsesian

Careers in Canon Law?

A thousand years ago, Catholic canon-law courts had an active docket and an extensive jurisdiction that covered contracts, property, torts, and much else. Over centuries, in a process Harold Berman famously described in Law and Revolution, the docket dwindled and the jurisdiction contracted. As a result of secularization, church courts lost most of their jurisdiction and importance  in Catholic life. Nowadays, canon-law courts  are reserved principally for marriage annulments.

According to an AP story this week, though, things may be starting to change, at least in the United States. The AP reports on  a significant recent rise in litigation before church courts. Some litigation involves  priests accused of sex abuse, but much concerns everyday matters like parish closings, use of church property, even complaints about non-liturgical music. More and more, it seems, Catholics see church courts as the proper place to air their grievances and seek redress. In fact,  something of a new practice area seems to be developing. The AP story describes the practice of attorney Michael Ritty from upstate New York, who employs three lawyers in his canon law firm.  A small practice, to be sure, but indications are the field is growing. “‘Most of us, when we were training, were preparing for marriage tribunals, marriage annulments,’ said Monsignor Patrick Lagges of Chicago, a canon lawyer for three decades….  ‘Now there’s such a broad range of things. It’s a much broader field.'”