This afternoon I participated in the second International and Comparative Perspectives panel, moderated by Colleen Graffy (Pepperdine). The panelists (left) addressed a variety of national and regional perspectives on law and religion.
Dia Dabby (McGill) began the panel with a presentation on a Canadian child custody case that involved a conflict between the parents’ religious beliefs and their children’s best interests. In the case, a stepfather claimed that his religious tradition – “Odinism” — justified his covering his 7-year old stepdaughter’s skin with racist drawings, including swastikas. The Canadian court dismissed the stepfather’s claim, in part because there was no evidence he knew what “Odinism” was, but also because the child’s best interests had precedence over the parent’s right to religious expression. Dabby used the case to discuss the metaphor of human skin as a way of describing conflicts about law and religion.
Kuyper Lee (Handong Global University) then discussed the situation of Christian lawyers in South Korea, a situation he described as one of “struggling and loneliness.” Christian lawyers traditionally keep silent about their faith in public, he explained, largely in deference to pastors, who have a commanding role in Korean Christianity. Christian lawyers in Korea, he said, are trying to work out how best to express their faith in a society in which Christian churches are increasingly subject to public criticism.
Santiago Legarre (Universidad Catolica Argentina) then gave an talk on a religious display case from Argentina. In the case, an American-funded NGO challenged the courthouse display of an image of the Virgin Mary, using the American creche case, Lynch v. Donnelly, as persuasive authority. Read more
Educational pluralism requires, in part, a political theory that legitimates the presence of belief (both religious and secular) in the public square while insisting upon state neutrality with respect to the content of that belief. Charles Taylor and Jocelyn Maclure’s Secularism and Freedom of Conscience offers one such argument. The book was originally written in French and intended for Canadians struggling with the growing cultural, religious and linguistic tensions in their pluralistic democracy. Secularism and Freedom of Conscience is a sketch – unlike the 800-page manuscripts we are accustomed to from Charles Taylor. However, like anything this eminent social theorist and political activist writes, it’s worth reading.
Maclure and Taylor start by distinguishing between two types of secularism, which they call the “republican” and the “liberal-pluralist.” The republican version favors a common civic identity shorn of sectarian particularity, which “requires marginalizing religious affiliations and forcing them back into the private sphere.” The republican version of secularism assigns the highest priority to moral equality before the law and is therefore wary of favoring or even accommodating differences based upon core beliefs. A private citizen may wear a Star of David, but a district judge may not. A Muslim girl may wear a headscarf at home but not at a public school. Religion becomes an essentially private affair.
The first speaker is Nathan Chapman (Stanford Constitutional Law Center), who is presenting a talk about the possibility of finding a religion-specific ground of protecting religious liberty, as opposed to a ground which applies to religious reasons and non-religious reasons alike. That is, Chapman is trying to discern a ground to protect religious conscience which would not apply to non-religious conscience. Setting aside the scope of the Religion Clauses of the American Constitution, the duty of those who believe in a “Higher Kingdom” — and around beliefs and practices ordered around a “Kingdom of God” — accounts historically at least for the idea of religious liberty, says Chapman. This has historically been the justification for the protection of religious liberty — for promoting the “Kingdom of God.” Chapman offers various explanations for the particular qualities of this justification, but makes clear that he is not advocating importing this justification directly into American law.
The second speaker is Bruce Ledewitz (Duquesne). Ledewitz proposes that religious legal theory ought to influence law and society. He approaches the issue from the perspective of a secularist himself. He argues that a humanistic but also religious sensibility, but one which is not necessarily theistic, offers a fruitful way forward. The thinness of secular discourse is incapable of dealing with the problems of concrete social practices. If religion is unique, if ought to offer unique insights to secular society. Religious traditions are “resources for society” and this might be what makes them special.
The third speaker is Micah Schwartzman. Schwartzman’s asks, “What if religion isn’t special?” One sub-question is whether religion ought to be excluded for purposes of legal decision-making. A second sub-question deals with religious accommodation. The aim of the paper is to show that along a number of lines, religion is actually not special, at least as a moral matter. He attacks the views of several prominent scholars who support the view that religion is special.
The fourth speaker is Nelson Tebbe. Tebbe’s argument deals with government endorsement of ideas. The claim is that there are certain secular positions that the government cannot endorse. An example is racialized speech. Suppose a government were to say that America is a white nation. That, says Tebbe, would be unconstitutional under the Equal Protection Clause. He also says it would be unconstitutional based on the Free Speech Clause, at least on a certain reading which is “democratic” in nature (see Owen Fiss). Another example he offers deals with government electioneering — suppose the government said, “Vote Democratic.” This, too, would be unconstitutional, even if government is able to advocate for particular policy views. The intuition is that the government cannot directly interfere in these ways with democratic processes. The textual hook is the Free Speech Clause, again read in a certain democracy-enhancing way. These are examples of “secular non-endorsement,” and Tebbe argues that they suggest that religion is not special per se insofar as it relates to disabilities on what the government can say. But even under Tebbe’s approach, the rule against religious endorsement is more powerful than non-religious endorsement.