Posted on by Marc O. DeGirolami · 1 Comment

First Lawsuit to Challenge the (Revised) HHS Mandate

The first lawsuit (but surely not the last) challenging the putatively revised HHS contraceptive and abortifacient mandate has been filed right here in the U.S. District Court for the Eastern District of New York: Priests for Life v. Sebelius.  The plaintiff is a private non-profit with about 50-60 employees.  Whatever the content, and future, of the alteration that President Oabama mentioned last Friday, it is the mandate as originally crafted by the Obama Administration which has now become final.  This action challenges that rule, alleging violations of the First Amendment and RFRA, though it also claims that there is no distinction between that rule and the proposed alteration.

I think the RFRA claim is a serious one.  One of the interesting features of the case on the free exercise front is that the plaintiffs argue that the law is not a neutral one of general application because “[t]o date, HHS has granted over 1,000 individualized waiver requests from employers and to insurance plans,” and because by the very terms of the Affordable Care Act, certain insurance plans are grandfathered in.  ¶¶ 17, 20.   One to keep an eye on.  (h/t Professor Friedman)

Posted on by

Hiers on Biblical Contract and Tort Jurisprudence.

Richard Hiers (University of Florida) has posted Ancient Laws, Yet Strangely Modern: Biblical Contract and Tort Jurisprudence. The abstract follows.

People generally, and even most biblical scholars, tend to view biblical law as, at best, a random patchwork of odd and antiquated commandments and rules.  The present Article demonstrates that many biblical laws can be understood to have functioned in biblical time, in ways remarkably similar to various laws characterized in modern AngloAmerican jurisprudence as contract and tort law.  In particular, the Article points out that the biblical tort laws found in Exodus 21:18 through 22:17 are structured along lines closely parallel to concepts found in modern tort law jurisprudence.  Many of the  biblical laws considered here give expression to the underlying values of concern for the worth and well being of both individuals and the community.  The findings here should be of interest to both legal and biblical scholars.

Posted on by

Education & Belief: Democratic Accountability

The key question, as Charles Glenn wrote in Contrasting Models of State and School, is “How the freedom of parents to choose how their children will be educated can be balanced with the opportunity for educators to create and work in schools with a distinctive character, and how both of these in turn should be limited by some form of public accountability to ensure that all children in a society receive a generally comparable and adequate education.” American public education does not achieve this balanced ideal, but many of its proponents worry that a civil society model as practiced in Europe and Asia would be worse.

The prominent political philosopher Amy Gutmann speaks openly about the challenges of democratic education, such as the fact that it cannot be neutral but is, rather, moral and teleological in nature. Rather than consider pluralistic education as a way out of this difficulty, she insists that the current state-control framework of American education “is an essential welfare good for children as well as the primary means by which citizens can morally educate future citizens.” She contrasts “public schooling” with the market mechanisms of private schooling that she believes will lead to unalloyed parental control. Gutmann thinks American public schooling is imperfect (she would like less bureaucracy, for instance), but believes that the practice of what she calls “democratic deliberation” achieves the optimal balance between the interests of the state, parents, and educators.

These are questionable assertions for two reasons. Read more

Posted on by Marc O. DeGirolami

Witte on Early Protestant Models of Church, State, and Marriage

From the excellent Oxford Journal of Law and Religion (whose content is still available for free) is this extremely interesting piece by John Witte (Emory), Church, State, and Marriage: Four Early Modern Protestant Models.  The abstract follows.

This article recounts the rise of four early modern Protestant models of marriage that emerged in place of the medieval Catholic sacramental model. These are the Lutheran social model of Germany and Scandinavia, the Calvinist covenantal model of Geneva, France, the Netherlands and Scotland, the Anglican commonwealth model of England and its colonies and the budding separationist model of John Locke. Theologically, the differences between these models can be traced to the genesis of these models respectively in medieval Catholic sacramental theology, Lutheran two kingdoms doctrines, Calvinist covenantal constructions, Anglican commonwealth theory and Lockean contractarian theories, respectively. Politically, these differences can be seen in shifts in marital jurisdiction. Medieval Catholics vested exclusive marital jurisdiction in the church. Anglicans left marital jurisdiction to church courts, subject to royal oversight and Parliamentary legislation. Calvinists assigned interlocking marital roles to local consistories and city councils. Lutherans consigned primary marital jurisdiction to the territorial prince or urban council. Locke pressed for a sharper separation of church and state in the governance of marriage. The Article concludes with a brief reflection of the implications of the Lockean synthesis for modern contests over marriage law and its governance.

Posted on by

Woehrling & Jukier on Religion in Canada

José Woehrling (University of Montreal) and Rosalie Jukier (McGill University) have posted Religion and the Secular State in Canada. The abstract follows.

This article reflects the National Report from Canada on Religion and the Secular State prepared by the co-authors for the XVIIIth International Congress of Comparative Law that took place in Washington, D.C., in July 2010. This Report provides a snapshot of the state of the law with respect to religion in Canada from a multitude of perspectives, touching on both its private law and public law dimensions, against the backdrop of the diverse and changing social and religious composition of Canada. The theoretical and constitutional frameworks, as well as important questions of the definition of secularity and the need for reasonable accommodation, are canvassed. Particular applications of religion and the secular state in the arenas of education, marriage and divorce, contracts, religious symbols and hate speech are also discussed.

Posted on by Marc O. DeGirolami

Rascoff on the “Counter-Radicalization Strategy”

I want to highlight a very interesting looking article by Samuel Rascoff (NYU) just out in the Stanford Law Review, Establishing Official Islam?  The Law and Strategy of Counter-Radicalization.  The abstract follows.

In the name of national security, federal and local governments have begun to intervene domestically in the religious lives of Muslims and into Islam itself. Taken together, these interventions form part of the emerging strategy of counter-radicalization, by which officials aim to diminish the pull of radical Islamic ideology in part by promoting more “mainstream” theological alternatives. Both the official opposition to radical Islam (as opposed to the violence that it is thought to generate) and the support for more palatable (to the state, that is) religious alternatives generate friction with the Establishment Clause and the values that it enshrines. But the prospect of establishing “Official Islam” is not the only worry surrounding counter-radicalization. Counter-radicalization also suffers from a number of strategic flaws that have become apparent in the context of British counter-radicalization efforts undertaken over the last five years. Most fundamentally, Western governments, including our own, are unlikely to succeed in tackling the risk of future terrorism by attempting to shape religious ideology. In fact, this strategy is likely to backfire by stoking animosities and fear. This Article describes the emergence of American counter-radicalization and its roots in the British example, highlights the tension between this area of official endeavor and the Establishment Clause, and reveals the tight connection between the legal and strategic challenges with which American counter-radicalization must contend.

Posted on by Marc O. DeGirolami

Two Books About Muslims in Europe

The first is Europe’s Angry Muslims: The Revolt of the Second Generation (OUP 2011) by Robert S. Leiken (Brookings Institution).  The publisher’s description follows.

Bombings in London, riots in Paris, terrorists in Germany, fury over mosques, veils and cartoons–such headlines underscore the tensions between Muslims and their European hosts. Did too much immigration, or too little integration, produce Muslim second-generation anger? Is that rage imported or spawned inside Europe itself? What do the conflicts between Muslims and their European hosts portend for an America encountering its own angry Muslims?

Europe’s Angry Muslims traces the routes, expectations and destinies of immigrant parents and the plight of their children, transporting both the general reader and specialist from immigrants’ ancestral villages to their strange new-fangled enclaves in Europe. It guides readers through Islamic nomenclature, chronicles the motive force of the Islamist narrative, offers them lively portraits of jihadists (a convict, a convert, and a community organizer) takes them inside radical mosques and into the minds of suicide bombers. The author interviews former radicals and security agents, examines court records and the sermons of radical imams and draws on a lifetime of personal experience with militant movements to present an account of the explosive fusion of Muslim immigration, Islamist grievance and second-generation alienation.
Robert Leiken shines an unsentimental and yet compassionate light on Islam’s growing presence in the West, combining in-depth reporting with cutting-edge and far-ranging scholarship in an engaging narrative that is both moving and mordant. Leiken’s nuanced and authoritative analysis–historical, sociological, theological and anthropological–warns that “conflating rioters and Islamists, folk and fundamentalist Muslims, pietists and jihadis, immigrants and their children is the method of strategic incoherence–‘in the night all cats are black.'”

The second book is Immigration, Islam, and the Politics of Belonging in France: A Comparative Framework (U. Pennsylvania Press 2011) by Elaine R. Thomas (Bard College).  The publisher’s description follows.

Over the past three decades, neither France’s treatment of Muslims nor changes in French, British, and German immigration laws have confirmed multiculturalist hopes or postnationalist expectations. Yet analyses positing unified national models also fall short in explaining contemporary issues of national and cultural identity. Immigration, Islam, and the Politics of Belonging in France: A Comparative Framework presents a more productive, multifaceted view of citizenship and nationality.

Political scientist Elaine R. Thomas casts new light on recent conflicts over citizenship and national identity in France, as well as such contentious policies as laws restricting Muslim head-scarves. Drawing on key methods and insights of ordinary language philosophers from Austin to Wittgenstein, Thomas looks at parliamentary debates, print journalism, radio and television transcripts, official government reports, legislation, and other primary sources related to the rights and status of immigrants and their descendants. Her analysis of French discourse shows how political strategies and varied ideas of membership have intertwined in France since the late 1970s. Thomas tracks the crystallization of a restrictive but apparently consensual interpretation of French republicanism, arguing that its ideals are increasingly strained, even as they remain politically powerful. Thomas also examines issues of Islam, immigration, and culture in other settings, including Britain and Germany.

Immigration, Islam, and the Politics of Belonging in France gives scholarly researchers, political observers, and human rights advocates tools for better characterizing and comparing the theoretical stakes of immigration and integration and advances our understanding of an increasingly significant aspect of ethnic and religious politics in France, Europe, and beyond.

Posted on by Mark Movsesian

Muslim Peer Calls for Christian Europe

Sayeeda Warsi sits in the House of Lords and serves as minister without portfolio in Prime Minister David Cameron’s cabinet. This week, she will lead a British delegation to meet with Pope Benedict at the Vatican. In advance of her meeting, she has written a piece in today’s Telegraph that is bound to get attention.

Baroness Warsi writes that secular Europe should be more comfortable with religion. In fact, she argues that Europe should recover its Christianity. When she meets the Pope, she writes:

I will be arguing for Europe to become more confident and more comfortable in its Christianity. The point is this: the societies we live in, the cultures we have created, the values we hold and the things we fight for all stem from centuries of discussion, dissent and belief in Christianity.

These values shine through our politics, our public life, our culture, our economics, our language and our architecture. And, as I will say today, you cannot and should not extract these Christian foundations from the evolution of our nations any more than you can or should erase the spires from our landscapes. . . .

Of course there is a crucial caveat to all of this. I am not calling for some kind of 21st century theocracy. Religious faith and its followers do not have the only answer. There will be times when politicians and faith leaders will disagree. What is more, secularism is not intrinsically damaging. My concern is when secularisation is pushed to an extreme, when it requires the complete removal of faith from the public sphere. So I am calling for a more open confidence in faith, where faith has a place at the table, though not an exclusive position.

What makes these sentiments somewhat surprising is that Baroness Warsi is a Muslim. In fact, she is the first Muslim woman to serve in a British cabinet. Her remarks are similar to those of Rabbi Jonathan Sacks, who last fall wrote nostalgically about his memories of growing up in the Christian Britain of the 1950s. At least for some members of minority faiths in Britain, it seems, a faith-based culture — even if the faith is not one’s own — is preferable to a militantly secular culture in which all faith is deprecated.

Posted on by

Zoroastrianism in the Global Economy

This month, Prods Oktor Skjærvø, professor at Harvard University, publishes The Spirit of Zoroastrianism (Yale 2012).  In it, professor Skjærvø explores Zoroastrianism—an ancient, dualist religious movement that originated in Iran in the second millennium BCE—and several of its key texts.  Not widely understood, Zoroastrianism’s relatively few adherents (see Zoroastrianism: An Introduction, [I.B. Tauris 2011] by Jenny Rose, graduate professor at the Claremont School of Religion in California) belie the religion’s far-reaching influence in the global economy.  For example, the Tata family, who are Parsi (the Indian offshoot of Zoroastrianism), operate the Tata group, a massive Indian conglomerate with worldwide operation and impact.  (For example, Tata Consultancy Services is an international provider of outsourcing.)  For the publisher’s abstract, please follow the jump. Read more

Posted on by · 1 Comment

Sharia’h and the Exploitation of Natural Resources

Via Professor Howard Friedman:  Nima Mersadi Tabari, Ph.D. candidate at the University of London’s Institute of Advanced Legal Studies, has timely posted The Sharia’h Dimension of the Persian Gulf’s Hydrocarbon Resources.  Tabari illustrates how Islamic law governs extraction of Middle Eastern oil, financing oil operations, and sale of this indispensable and all consuming resource.  Such a study promises to illuminate the originating motives of the global oil politics that permeate American domestic policy (consider the congressional Arctic National Wildlife Refuge drilling dispute, which remains active after decades [NYT, Feb. 3]) and its foreign concerns (the Iranian threat to blockade the Strait of Hormuz, and naval buildup there, is a frightening tinderbox [NYT, Feb. 13].  Please find Tabari’s abstract after the jump. Read more