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Education & Belief: Cultural Change

The structure of American public education, and its laws and culture, are now so familiar that it is hard to imagine how it might be otherwise. Yet as we have seen, American public education as it exists today is historically contingent, the product of distinctive ideas (about the person, society, pedagogy, law and religion), as well as of social movements that gave these ideas institutional expression.  The question, then, is whether the structures and mythologies that comprise public education are amenable to transformation. What are the conditions under which this might be possible?

Historians and sociologists are always trying to explain social change, accounts of which range from idealism (“Great ideas change history”) to individualism (“Powerful men and women change history”) to material structuralism (“Economic relationships and industrial developments change history”). I think the best analysis of cultural change is offered by the prominent sociologist James Davison Hunter, whose thesis incorporates all three into a sophisticated account. Cultural change requires 1) overlapping networks of individuals with access to financial, political, intellectual and social capital, who 2) articulate a common goal over a long period of time, and 3) create new institutions that embody those ideals. For the change to enter the cultural mainstream, a sufficient number of people must be convinced that it is 4) sufficiently plausible and 5) morally compelling.

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No Establishment of Religion: The Novelty of the Establishment Clause

This year, Oxford University Press will publish No Establishment of Religion: America’s Original Contribution to Religious Liberty, edited by T. Jeremy Gunn, director, Program on Freedom of Religion and Belief, ACLU, and John Witte, Jr., director, Center for the Study of Law and Religion, Emory University.  The volume collects works detailing, first, how the Establishment Clause was a novel product in its time.  Then, its essays discuss the questions of Establishment Clause interpretation that have occupied courts since the adoption of the Bill of Rights—for example, favoring some religions as against others, the constitutionality of blue laws, and the question of whether the Clause binds only the federal or also state governments.  Other contributors to the volume include Professor Emeritus of Practice in Religion, Ethnicity, and International Conflict David Little, of Harvard Divinity School; Professor Steven K. Green, director of the Center for Religion, Law, and Democracy at Willamette University; and Professor of Justice, Law, and Society Daniel L. Dreisbach at American University.

Please see the publisher’s description after the jump. Read more

Posted on by Marc O. DeGirolami · 2 Comments

The Capacity to Hold Thoughts in Tension

My colleague, Mark, once described a psychological study that he had heard about indicating that people often have difficulty keeping two thoughts which are deeply in tension in their minds simultaneously.  Here are two such thoughts which I have been trying to reconcile.

The first thought is that we ought to debate and argue with one another about which vision of the good life and morality is the best, and that these debates ought to generate rules about how to live.  We certainly disagree with one another about many things on this score.  And government is permitted to engage in that debate.  It participates in it all the time.  One tacit assumption lying behind this first thought is that thinking rightly about the good life, and acting accordingly, is very important — perhaps even the most important thing we can do.

The second thought is that there ought to be some limits to the first thought.  Though we may reach an impasse, the second thought counsels that we abstain from pressing further — and certainly that we refrain from pressing to the point of official compulsion.  The second thought is in deep tension with the first because its tacit assumption is that thinking and acting according to the best understanding of the good may actually not be the most important thing that we can do.

I have thought for a while that the most likely place for these two thoughts to co-exist is in the court system, in part because training people to hold two thoughts which are in tension together at the same time is part of what it means to be a lawyer.  But I recognize that others disagree.  It will be interesting to see, as various debates develop, whether people — lawyers and non-lawyers — are capable of living within the tension generated by these two thoughts.

Posted on by Marc O. DeGirolami

George Washington on Religion, Morality, and Politics

It is the commemoration of President George Washington’s birthday today.  Washington took a highly republican (small ‘r’) view of the relationship of religion and politics, one which not all of the founding generation espoused but which nonetheless forms an important part of our national heritage.  Here is a selection from a draft of Washington’s Farewell Address of 1796, explaining to the country why he would not seek a second term in office (I found this passage in the Liberty Fund’s excellent collection of Washington’s writings, in Volume XIII):

Of all the dispositions and habits, which lead to political prosperity, Religion and morality are indispensable supports.  In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and Citizens.  The mere Politician, equally with the pious man, ought to respect and to cherish them.  A volume could not trace all their connexions with private and public felicity.  Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion.  Whatever may be conceded to the influence of refined education on minds of peculiar structure—reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.

Posted on by Mark Movsesian

Ecumenical Patriarch Calls for Religious Equality in Turkey

Bartholomew I is the Ecumenical Patriarch, “first among equals” in the Eastern Orthodox Church and spiritual leader of hundreds of millions of Orthodox Christians worldwide. He lives in Istanbul, once Constantinople, along with his remaining flock, a few thousand Greek Orthodox Christians. By all accounts, his situation is quite precarious; he has, for example, been the target of numerous assassination plots by Muslim extremists.

Today, Bartholomew appeared before a Turkish parliamentary subcommittee that is preparing a new constitution for Turkey. He made a plea for religious freedom and equality. He requested that Halki Greek Orthodox Seminary, closed by the government since the 1980s, be reopened; that freedom of worship be protected; and that state funding be available for minority as well as Muslim communities. Although the present Turkish constitution guarantees religious freedom, members of minority religions often complain that their rights are not honored in practice. “Unfortunately there have been injustices toward minorities until now,” Bartholomew said. “These are slowly being corrected and changed. A new Turkey is being born.” We shall see.

 

Posted on by Mark Movsesian

We Could Have Told You That

On Saturday, Pope Benedict named 22 new cardinals, including Archbishop Timothy Dolan of the neighboring Catholic Archdiocese of New York, now Timothy Cardinal Dolan. While in Rome, Cardinal Dolan went out of his way to assure the Vatican that New York is not an entirely irreligious city:

“New York seems to have an innate interest and respect for religion and I’m going to bring that up because I don’t like that caricature that New York is some neo-Sodom and Gomorrah” he told reporters after celebrating Mass on Thursday in Rome’s Santa Maria Maggiore Basilica…. “[T]here are instances of secularism and materialism and paganism in New York as there are everywhere … but I have found the New York community to be very religious and innately respectful of religion, interested in religion,” he said.

Cleary, more Vaticanisti need to be reading CLR Forum.

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Ringelheim on Rights, Religion & the Public Sphere in the European Court of Human Rights

Julie Ringelheim (U. of Louvain, Belgium) has posted Rights, Religion and the Public Sphere: The European Court of Human Rights in Search of a Theory?  The abstract follows.

This paper seeks to analyze the European Court of Human Rights’ (ECtHR) case-law on religious freedom in the light of political and social theory debates on the place of religion in the public sphere. The Court’s jurisprudence on these matters denotes an increasing attempt at going beyond casuistry and building a consistent vision of religious freedom and its implications for state-religions relations, valid across Europe. Alongside the core notion of pluralism, three major principles have progressively emerged in this case-law: the right to autonomy of religious communities vis-à-vis the state; an obligation of neutrality for the state; and the necessity of the secularity of the legal order’s foundations. These principles, it is submitted, are in line with the democratic ideal that underlies the European Convention. Yet, the Court’s approach to religion-related disputes is not without tensions and problems. These are especially manifest when the Court handles disputes that go beyond the issue of the respective autonomy of religion and public authority, and concern the multifaceted question of expression ofreligion in the public sphere, in particular, the status of religion in public discourse, the wearing of religious garments at public school or university, and claims for accommodation of religious practice in the workplace. In some cases of this sort, the Court has adopted stances that are questionable from the viewpoint of the principles it has itself identified as central for religious freedom. In other instances, these principles themselves appear to be in need of further elaboration. But the significance of the tensions surrounding the treatment of religious disputes by the Court cannot be fully grasped without having regard to present-day discussions in social and political theory on the relations between religion and the public sphere. From this perspective, it appears that the ECtHR’s case-law is to a large extent built on assumptions stemming from the classic secularisation thesis, and that this, among other factors, makes it theoretically ill-equipped to deal with situations that do not fit this paradigm.

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Johnson on Corporate and Religious Fiduciaries in Bankruptcy

Lyman Johnson (Washington and Lee U. & U. of St. Thomas, St. Paul Schools of Law) has posted Debarring Faithless Corporate and Religious Fiduciaries in Bankruptcy. This paper was first presented in September 2011, at the “Religion and Bankruptcy” Conference, hosted by the Center for Law and Religion. Marc DeGirolami liveblogged the presentation for the CLR Forum. The abstract of Johnson’s article follows.

Fiduciary duties for the top governance officials of both business and religious organizations demand faithfulness to the institution’s mission, a seemingly strict demand. Meaningful sanctions for breach, however, are difficult to obtain and may not deter future misconduct, including that kind of conduct leading to organizational bankruptcy. This article advocates that, to attain both special and general deterrence, bankruptcy law should look to other regulatory regimes and permit a bankruptcy court to debar faithless secular and ecclesiastical fiduciaries from holding certain leadership positions. Although written shortly before the 2012 Supreme Court Hosanna-Tabor decision, that opinion – addressing the “ministerial exception” for employees − does not alter the constitutional assessment of the position argued for in this article with respect to harm-causing, non-ministerial governing officials.

Posted on by Marc O. DeGirolami

Journal of Church and State Issue on Historical and Contemporary Challenges to Catholicism

The Oxford Journal of Church and State has published a very interesting looking series of articles on historical and contemporary challenges to Catholicism.  The authors include Jo Renee Formicola (Seton Hall), Christopher Beneke (Bentley University), and others.  Unfortunately the issue is behind a pay wall because the articles look well worth checking out.

Posted on by Marc O. DeGirolami

Second Circuit Clarifies Scope of TRO in Bronx Household of Faith Case

The Second Circuit Court of Appeals issued an order clarifying the scope of the TRO issued by the district court in the Bronx Household of Faith case.  The order states:

We call to the district court’s attention an appearance of overbreadth of its order. The district court stated that it “issues a temporary restraining order enjoining defendants from enforcing” regulation D-180.  As stated the order could be construed to enjoin the Board from enforcing its regulation not only against the plaintiffs, but also against non-parties as well.  The Board has thus complained that, at the last minute, it is being required to process more than 23 new permit applications. This is a misunderstanding of the order. The order should be understood as enjoining the City from enforcing its regulation against the parties to the case—not as enjoining the City from enforcing its order against non-parties. The district court’s finding that Bronx Household has shown likelihood of success on the merits of its case does not justify enjoining the Board from enforcing its order against non-parties.

My understanding is that the plaintiff is challenging this regulation as being facially unconstitutional, so if it eventually prevails on the merits of that claim, that would prevent the City from enforcing the regulation against non-parties.  But because at present this is only before the court on a motion for TRO, it applies only to Bronx Household of Faith, and the City is at liberty to throw everybody else out.