In this week’s Newsweek, human rights activist and commentator Ayaan Hirsi 
Ali documents the persecution directed at Christians in many Muslim-majority countries, often with state support, or at least indifference. She argues that concern with appearing “Islamophobic” has caused Western governments and media to avoid covering the crisis, and that Western governments must “get their priorities straight” and tie foreign aid to recipients’ willingness to protect the rights of Christians and other religious minorities. (For reasons CLR Forum has discussed, it’s not clear that Western pressure would actually help Christians living in Muslim-majority countries, who are vulnerable to the charge of being Western agents). Hirsi Ali, an ex-Muslim and present atheist, is a fellow at the American Enterprise Institute.
Strang & Breen on Catholic Legal Education at the Middle of the Twentieth Century
Lee J. Strang (U. of Toledo College of Law) and John M. Breen (Loyola U. Chicago School of Law) have posted The Road Not Taken: Catholic Legal Education at the Middle of the Twentieth Century. This article dovetails nicely with Ashley Berner’s recent article on the CLR Forum, Education and Belief: Ontology. The abstract for Strang and Breen’s article follows.
The Road Not Taken describes the history and animating themes of American Catholic legal education. The heart of The Road Not Taken is a now forgotten episode in the history of American legal education. In the late 1930s, a number of leading Catholic legal scholars issued a call for reform — a proposal which urged Catholic law schools to educate in a manner distinctive from their non-Catholic peers. While open to students from diverse faith backgrounds, the proponents of this reform argued that teaching and scholarship at Catholic law schools should be grounded in the Catholic intellectual tradition. As we demonstrate, however, this call for reform went unanswered. Had it succeeded, it could have profoundly changed both the landscape of legal education and the face of the legal profession.
In this Article, we accomplish three goals. First, we describe the founding and early years of Catholic legal education. Second, we detail the national effort to reform Catholic legal education that began in the 1930s and which was driven, in large measure, by the rise of Legal Realism at home and the threat of totalitarianism abroad. Third, we explore the social, institutional, and historical reasons that explain why the reform effort failed.
Gedicks on Defending Establishment Clause Incorporation
Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted Establishment Clause Incorporation: A Logical, Textual, and Historical Defense. The abstract follows.
Incorporation of the Establishment Clause against the states is logically and textually impossible — so say most academics, many lower-court judges, and a Supreme Court justice. They maintain that because the Clause was originally understood as a mere structural protection of state power, it cannot coherently restrain state power or protect a personal due process liberty as required for incorporation. Anti-incorporationists also seem to think that the purported incoherence and textual inconsistency of Establishment Clause incorporation excuse serious engagement of Reconstruction history, since they ignore it except for the irrelevant Blaine Amendment defeated as the Reconstruction era ended.
If anti-incorporation critics are right, the entire body of Establishment Clause doctrine is doomed: Nearly every Supreme Court decision interpreting the Clause has involved a challenge to state action. Establishment Clause doctrine thus cries out for an account of its incorporation against the states that is both logically coherent and consistent with the liberty-protecting text of the 14th Amendment. Read more
Frankopan, “The First Crusade”
Peter Frankopan (Oxford) offers an unexpected historical account in The
First Crusade: The Call From the East (HUP 2012) which emphasizes the eastern causes of the conflict. The publisher’s description follows.
According to tradition, the First Crusade began at the instigation of Pope Urban II and culminated in July 1099, when thousands of western European knights liberated Jerusalem from the rising menace of Islam. But what if the First Crusade’s real catalyst lay far to the east of Rome? In this groundbreaking book, countering nearly a millennium of scholarship, Peter Frankopan reveals the untold history of the First Crusade.
Nearly all historians of the First Crusade focus on the papacy and its willing warriors in the West, along with innumerable popular tales of bravery, tragedy, and resilience. In sharp contrast, Frankopan examines events from the East, in particular from Constantinople, seat of the Christian Byzantine Empire. The result is revelatory. The true instigator of the First Crusade, we see, was the Emperor Alexios I Komnenos, who in 1095, with his realm under siege from the Turks and on the point of collapse, begged the pope for military support.
Basing his account on long-ignored eastern sources, Frankopan also gives a provocative and highly original explanation of the world-changing events that followed the First Crusade. The Vatican’s victory cemented papal power, while Constantinople, the heart of the still-vital Byzantine empire, never recovered. As a result, both Alexios and Byzantium were consigned to the margins of history. From Frankopan’s revolutionary work, we gain a more faithful understanding of the way the taking of Jerusalem set the stage for western Europe’s dominance up to the present day and shaped the modern world.
Uniao do Vegetal Back In Court
União do Vegetal was the petitioner in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), a case in which the Supreme Court held that the federal government’s seizure of a hallucinogenic tea, hoasca, which was used by the petitioner as part of a religious ritual violated the Religious Freedom Restoration Act. In the process the Court clarified that RFRA did, in fact, continue to apply against the federal government (it held in City of Boerne v. Flores that it did not apply against the states).
In this complaint, União do Vegetal has now sued the municipality of Santa Fe, bringing claims under the Religious Land Use and Institutionalized Persons Act and the Free Exercise Clause, among others, in response to Santa Fe’s denial of a permit to build a temple on land outside Santa Fe. The allegation is that the permit was denied because neighbors of the proposed temple site objected on NIMBY grounds. Of special interest (to me) is the fact that the plaintiff’s free exercise claim alleges unequal (non-neutral) application of the individual assessment exception in Employment Division v. Smith. (h/t Eric Rassbach)
The Secular Value of Supporting Churches
A very interesting perspective by John Gray here on the proposal for the creation of atheist temples (discussed here). What struck me about the piece was its recommendation to atheists to support existing churches and religious structures exactly for some of the reasons that Botton describes. The point might be expanded to apply more generally to secular support for religious institutions — not a reason from autonomy or separation or one of the other usual liberal reasons, but one more merits-oriented, as it were. From the conclusion of Gray’s piece:
[Auguste] Comte wanted his new religion to be based on science, so the temples of humanity pointed only as far as science could reach. That is why his new church failed. The very idea of a science-based religion is an absurdity. The value of religion is that it points beyond anything that can be known by the methods of science, showing us that a mystery would remain even if everything could be finally explained. The heart of religion isn’t belief, but something more like what Keats described as negative capability: “being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason”.
Rather than trying to invent another religion surrogate, open-minded atheists should appreciate the genuine religions that exist already. London is full of sites – churches, synagogues, mosques and other places of worship – that are evocative of something beyond the human world. Better spend the money that is being raised for the new temple on religious buildings that are in disrepair than waste it on a monument to a defunct version of unbelief.
Education and Belief: Ontology
Educational philosophy raises four distinct but related questions: What is education for? What is the nature of the child? What is the role of adults? Who decides which view is right?
The last post highlighted several prominent disputes about the purpose of education. Even if we agreed about the purpose of education (say, that it existed to transmit knowledge and to foster democratic citizenship), the second and third questions – how we think about the nature of the child and the role of adults – are also deeply contested and lead to quite different pedagogies. This is because they ask us to consider our basic assumptions about human nature. This is what the Greeks called an ontological question, since it concerns the essence or the nature of a thing.
Two broad conflicts have played out in American education: the first between the traditionalist and the progressive, the second between the religionist and the secularist. What are the ontological distinctions between them?
European Human Rights Court Rules Clergy Have a Right to Unionize
Here’s an interesting approach to church autonomy. This week, a chamber of the European Court of Human Rights ruled that clergy (and lay employees) of the Romanian Orthodox Church have a right to unionize, notwithstanding the Church’s objections. In 2008, clergy in a Church diocese formed a union to defend their “professional, economic, social and cultural interests” in their dealings with the Church. When the Romanian government registered the new union, the Church sued, pointing out that Church canons do not allow for unions and arguing that registration violated the principle of church autonomy. A Romanian court agreed with the Church, and the union challenged the court’s judgment in the ECtHR. The union argued that the decision not to register it violated Article 11 of the European Convention, which grants a right to freedom of association.
In this week’s decision, the chamber reasoned that, under Article 11, a state may limit freedom of association only if it shows “a pressing social need,” defined in terms of a “threat to a democratic society.” Romania had shown no such need here. The chamber faulted the Romanian court for considering only church traditions and ignoring other important factors, such as domestic and Read more
Religion, Tradition, and Change
A very nice column by David Brooks this morning on the relationship of religious and other traditions, individualism, and change. The suggestion is that people who are interested in abandoning their traditions ought to think about choosing others. A bit:
The paradox of reform movements is that, if you want to defy authority, you probably shouldn’t think entirely for yourself. You should attach yourself to a counter-tradition and school of thought that has been developed over the centuries and that seems true.
The old leftists had dialectical materialism and the Marxist view of history. Libertarians have Hayek and von Mises. Various spiritual movements have drawn from Transcendentalism, Stoicism, Gnosticism, Thomism, Augustine, Tolstoy, or the Catholic social teaching that inspired Dorothy Day.
These belief systems helped people envision alternate realities. They helped people explain why the things society values are not the things that should be valued. They gave movements a set of organizing principles. Joining a tradition doesn’t mean suppressing your individuality. Applying an ancient tradition to a new situation is a creative, stimulating and empowering act. Without a tradition, everything is impermanence and flux.
Beschile on Defining Religion
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.