Donald L. Beschile (The John Marshall Law School) has posted Does a Broad Free Exercise Right Require a Narrow Definition of “Religion”?. The introduction follows.
In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions. The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.
Here’s a very interesting article just published by Jonathan Burnside (Bristol), The Spirit of Biblical Law. The abstract follows:
The Bible—paradoxically—has been deeply influential on Western civilization, including law, yet our assumptions are deeply hostile to its having any influence in the modern world at all. This article subverts the view that there is nothing we can learn from biblical law. Instead, it suggests that it is possible to speak of ‘the spirit of biblical law’. This means seeing biblical law as more than just an object of textual critique. Biblical law can be caricatured in a number of ways; however, this is an inadequate way of reading the subject. We need to recover the spirit of biblical law by looking at a number of its substantive areas, including: property and money; economic organization; race relations and immigration; the role, nature and accountability of Government; family structure; our relationship with the environment and the pursuit of justice. As we do so, we discover that the spirit of biblical law has an ethos which is worth exploring as an imaginative and moral resource.
Here is an interesting story about the vision of the French writer, Alain de Botton, to capture some of what he sees as religion’s “consoling, subtle, or just charming rituals” by erecting gigantic atheist “temples.” The story relates to Botton’s new book, Religion For Atheists: A Nonbelievers Guide to the Uses of Religion (Hamish Hamilton 2012). Inside these collossal atheist edifices, it is not exactly clear what would occur, except that people obviously would not worship, but would instead “behave as they would in a museum.” Proposed Fortress of Atheism at right.
An update on a story we covered last November. The Forest Service this week approved a permit for the continued display of a six-foot statute, known as “Big Mountain Jesus,” on federal land in Big Mountain, Montana. The statute has been there since 1954. Its sponsor, the Knights of Columbus, says that the statue, which replicates statues seen by American soldiers fighting in Europe in World War II, serves as a war memorial. The Forest Service had decided last August not to renew the permit, but reversed itself this week in response to public outcry. The Freedom from Religion Foundation, which argued that renewal of the permit would violate the Establishment Clause, has announced plans to file a federal lawsuit as early as this week.
Cases about public religious displays are notoriously unpredictable. The Supreme Court has indicated that such displays cannot violate the government’s duty of religious neutrality, but the Justices have defined that duty in various, and not completely consistent, ways. Categorical tests are not very helpful; cases turn on specific facts and historical context. With respect to Big Mountain Jesus, it will be interesting to see which interpretation of the statue prevails: is the statue really a war memorial whose religious associations are only incidental, or is it, as FFRF argues, an unconstitutional sectarian endorsement? Watch this space for further developments.
“Formal education…presents pictures or maps of reality that reflect, unavoidably, particular choices about what is certain and what in question, what is significant and what unworthy of notice. No aspect of schooling can be truly neutral.” – Charles Glenn, The Myth of the Common School (1988).
If Glenn is correct that knowledge occurs within a map of reality, then we need to look at the map’s assumptions. This is the work of educational philosophy, which asks four key questions:
- What is the purpose of education?
- What is the nature of the child?
- What is the role of the teacher?
- Who has or should have educational authority?
Schooling addresses these questions, even if implicitly. An insistence upon high academic standards, for instance, implies something about the purpose of education, our view of the child who is being educated, and the locus of authority.
What I’d like to do in the next few posts is to look at each question and some of the ways each has been answered in the United States. My intent is not to argue that any one answer is right or wrong (although I do have my personal preferences). Rather, I want to highlight the sheer variety of responses and then examine how America and other liberal democracies differ in managing them.