This year, Dr. Yannis Papadogiannakis, lecturer in Patristics at Wolfson College, Oxford, publishes Christianity and Hellenism in the Fifth-Century Greek East: Theodoret’s Apologetics against the Greeks in Context (Oxford, 2012). Dr. Papadogianakis contextualizes Theodoret’s last apologetic within its socio-cultural milieu—in the conflict between emergent Christian civilization and the dominant socio-religious structures of the late Roman Empire. See the publisher’s abstract after the jump. Read more
Today, in Perry v. Brown, the Ninth Circuit affirmed the district court’s determination that California Proposition 8 — in which the people of California had declared marriage to be the union of a man and a woman, which in turn reversed the judgment of the California Supreme Court — violates the Due Process and Equal Protection Clauses of the U.S. Constitution. In a 2-1 decision, the court, in an opinion authored by Judge Stephen Reinhardt, held that none of the reasons offered by the proponents of Proposition 8 were legitimate under the most deferential standard of review that the court exercises in these kinds of cases — rational basis review. Throughout the decision, the court repeatedly emphasized that this case was about taking away a right which had already been granted (by the California Supreme Court), rather than extending a right which had not yet been granted. The dissenting judge disagreed with the court’s conclusions with respect to the rationality of the reasons offered in support of Proposition 8.
Unlike in the district court decision, there is little in this decision which overtly concerns religion. The court did reject the claim that Proposition 8 protects religious liberty by making it less likely that religious institutions would be penalized for refusing to provide services to same-sex couples.
But the more interesting connections are indirect. The court held that taking away the right of gay marriage (after it had been provided by the California Supreme Court) bore no rational relationship to the aims of childrearing, responsible procreation, and the promotion of a stable family structure. It also held that the aim of preserving a tradition — including one based on “sincerely held private belief” — is not rationally related to a legitimate state interest. Here’s a portion of the court’s opinion at 71-72:
Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself . . . . A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.
Absent any legitimate purpose for Proposition 8, we are left with the ‘inevitable inference that the disadvantage imposed is born of animosity toward,’ or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, ‘the class affected.’ Romer, 517 U.S. at 634. We do not mean to suggest that Proposition 8 is the result of ill will on the part of the voters of California . . . . Disapproval may also be the product of longstanding, sincerely held private belief.
UPDATE: Over at the Volokh conspiracy, Orin Kerr makes a very interesting point that, at least on my reading, the Ninth Circuit did not consider in its panel opinion. Kerr writes that at least a part of the reason that the people of California might have voted for Proposition 8 was to register — “symbolically,” as the Ninth Circuit says — their disapproval of the California Supreme Court’s decision to extend marriage to homosexual couples. The point was to issue a rebuke to the California Court. One can, of course, agree or disagree with that symbolic popular expression. But to my mind, it is difficult to conclude that a symbolic expression with that motivation does not satisfy the rational basis standard of review.
A fascinating story from Israel. According to the Jerusalem Post, the country’s Supreme Rabbinical Court of Appeals has ordered that a man be imprisoned indefinitely for refusing to grant his wife a bill of divorce, or get, under Jewish law. Tzivya Gorodetzki sued her husband, Meir, for divorce in 2001. Under Israeli law, religious tribunals have exclusive jurisdiction over marriage and divorce, so the case went before a rabbinical court, or beit din, which ordered Meir to give Tzivya a get. Under Jewish law, a divorce is effective only when the husband voluntarily gives the wife a get. Otherwise, the wife is an agunah, or “chained woman,” who may not remarry.
This is where things became interesting. Meir refused to give his wife the get. To punish him for contempt, and to encourage him to change his mind, the rabbinical court sentenced him to prison, where he has been for the last 10 years, the maximum term the rabbis could impose. Prison authorities tried various methods to make him relent, including solitary confinement, but nothing worked. Fearing that Meir would flee the country after his release, Tzivya went back to the beit din and asked it to extend Meir’s sentence indefinitely. In what the Post calls a “groundbreaking ruling,” the rabbinical judges complied. “The keys to your release are in your own hands,” the chief rabbinical judge told Meir at the hearing, “through the fulfillment of your obligations as a Jew. Release your wife and then you will receive your freedom.”
Accommodating religious law in a civil legal system is often problematic. Values clash, and it is difficult to know how much authority to give religious tribunals. Countries adopt different approaches. From the outside, this particular accommodation seems extreme. Granting religious courts the power to imprison people indefinitely is no small matter. As I understand it, Israel’s Supreme Court has reserved the right to review the decisions of religious tribunals for compliance with Israel’s Basic Law, though rabbinical courts dispute this. I wonder if the Supreme Court will have an occasion to review this ruling.
Let me begin with a thought experiment. Suppose that a majority of parents in a school district wished their children to have a traditional curriculum that included Latin, The Norton Anthology of American Literature, sentence diagramming, advanced mathematics and experimental science. Also suppose these parents wanted the teachers to have subject matter instead of education degrees. Suppose, further, they wanted the philosophical framework of their children’s schooling to be Modern Orthodox Judaism. Finally, suppose that these parents agreed to comply with the district’s regulations for school facilities, extracurricular activities and student-teacher ratios, and to surpass the district’s academic standards. Would the district fund the new school?
No, because the United States’ educational system was not designed to allow this kind of diversity. This comes as no surprise to most Americans. But they might be surprised to learn that this is in sharp contrast to virtually every other liberal democracy. In England, for example, if such parents provide 15% of the capital costs, Central Government contributes the remaining 85% and also funds the ongoing operations of the school. In the Netherlands, the new school would be funded on an equal footing with the Muslim, Catholic, Montessori, and Anthroposophic schools down the street.
Why the difference? The answer lies in political philosophy and its interactions with history and culture.
In the 1840s and ‘50s, America’s states adopted a “state control” model in which the government provides a common educational experience Read more
I am pleased to announce that the St. John’s Law Review has published several papers from a symposium of the Second Religious Legal Theory Conference, which the Center for Law and Religion organized and hosted. There are many excellent contributions, including a terrific keynote piece by Steve Smith, Nonestablishment, Standing, and the Soft Constitution, the text of which can be accessed at the link.
The publication occurs at an auspicious moment, as the Third Religious Legal Theory Conference will occur at Pepperdine Law School at month’s end, under the auspices of the Nootbar Institute on Law, Religion, and Ethics, and with the able organization of Bob Cochran and Michael Helfand.