When I was a student, one of the best and most insightful books on the quality of religious experience that I came across was Wayne Proudfoot’s Religious Experience (1985). Proudfoot’s exploration is important for law in a variety of ways, one of which may be that it may be seen as in conversation with the “is-religion-special” literature that is now emerging in legal scholarship. Proudfoot’s emphasis on the noetic quality of religious experience (building upon William James’s writing in deeply interesting ways) has influenced my own thinking about the nature of the experience at issue in cases like Lyng v. Northwest Indian Protective Cemetery Ass’n and others. Here is a passage from the introduction of the book:
This book is about the idea of religious experience which has been so influential in religious thought and the study of religion in the past two centuries. It is an examination of some of the most important theories of religious experience, an elucidation of the idea or concept as it is presupposed by such topics as mysticism and reductionism in the study of religion, and a consideration of the implications of these theories and this idea for contemporary issues in the philosophy of religion. Particular attention will be given to the way people come to understand or interpret their behavior and what is happening to them, and under what conditions they label certain bodily or mental states religious.
Leslie C. Griffin (University of Houston Law Center) has posted The Sins of Hosanna-Tabor. The abstract follows.
The Supreme Court has lost sight of individual religious freedom. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court for the first time recognized the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Court ruled unanimously that Cheryl Perich, an elementary school teacher who was fired after she tried to return to school from disabilities leave, could not pursue an antidiscrimination lawsuit against her employer. Read more
Richard W. Garnett (Notre Dame Law School) has posted Religious Freedom and (and in) Institutions. The abstract follows.
This paper is a contribution to a volume of essays dealing with a range of contemporary challenges – challenges posed by new questions, and by new forces – to religious liberty. It considers the role that religious communities, groups, and associations play – and the role that they should they play – in our thinking and conversations about religious freedom and church-state relations. And, its primary claim is that the values and goods that the First Amendment’s Religion Clauses embody and protect are well served by a civil-society landscape that is thick with churches (and mediating institutions and associations of all kinds) and by legal rules that reflect their importance. These institutions contribute in distinctive ways to the reality of religious freedom under law.
Joel A. Nichols (University of St. Thomas School of Law) has posted Religion, Marriage, and Pluralism. The abstract follows.
In November 2010, Oklahoma voters overwhelmingly passed the first “anti-sharia statute” as an amendment to their state constitution. Although federal courts have held the Oklahoma amendment unconstitutional, several other states continue to move toward various bans on sharia law. Such statutes would have the greatest impact in family law.
This article describes tensions faced by members of both minority Muslim and majority Christian religious communities, who view family issues as controlled both by their religious community and by the demands of the civil state. The article outlines four possible future paths for the intersection of religion and the civil state regarding marriage and divorce. Within these four alternatives, it is clear that even if states purport to disallow sharia (or any other religious beliefs) such a pronouncement will not eliminate adherence to sharia among faithful Muslims. It would mean, at most, that sharia would not be enforced by civil courts. At least for some observant Muslims, the effect will be the same as in the United Kingdom or Ontario: Islamic religious arbitrations will continue to exist outside the protection of the civillaw.
Ioanna Tourkochoriti (Committee on Degrees in Social Studies, Harvard University) has posted The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the USA. The abstract follows.
Six years after prohibiting the wearing of headscarves by students in public schools, the French state passed a law prohibiting the wearing of burkas in public places. Compared to France, in the United States there is more tolerance for wearing signs of religious affiliation. The difference in legal responses can be understood in reference to a different background understanding of the fundamental presuppositions of republicanism in the two legal and political orders, which also define their conception of secularism. The law enacted in France can be understood in a general frame of a paternalistic state, which is seen as permitted to dictate the proper exercise of their reason to the citizens. In the United States, the dominant understanding of republicanism attempts to reconcile the natural rights philosophy with the conception of the common good. The trust in the use of collective power and the legislature dominant in France can be opposed to the distrust towards the same elements in the United States.
In May, Columbia University Press will publish The Birth of Conservative Judaism: Solomon Schechter’s Disciples and the Creation of an American Religious Movement, by Michael R. Cohen, Director of Jewish Studies at Tulane University. Professor Cohen regards Conservative Judaism, which Schechter founded after he emigrated to the United States in 1902, as a characteristically American religion. He identifies in Conservative Judaism a feature he believes common to American religions: diversity. This diversity, says Professor Cohen, makes Conservative Judaism a microcosm of American religion’s triumphs as well as its failings: For diversity fosters unity by encouraging different religious communities to live in mutual harmony; yet this same embrace of diversity may also contribute to a lack of ideological clarity that undermines our building religious communities in the first place.
Please see the publisher’s description after the jump.
This month, the USCCB’s Department of Justice, Peace, and Human Development (the “JPHD”) released a statement urging the Obama Administration to move decisively toward nuclear disarmament. The JPHD referenced both the massive expense of maintaining the United States’ nuclear arsenal—money better spent aiding the poor—and Catholic just war principles, which would forbid the use of such disproportionately destructive weaponry. On these bases, the JPHD went so far as to urge not just reduction in nuclear capability to a level of bare deterrence, but actual, complete nuclear disarmament
Please follow the jump to read a copy of the form letter the JPHD urged Americans to e-sign before March 31, 2012, when Obama will be making once-per-decade decisions about whether and how much to cut the United States’ nuclear arsenal. Read more
The Center for Law and Religion is pleased to announce that Justice Antonin Scalia will visit us at St. John’s Law School next Monday, April 2, at 4:15 pm. His is the fifth session in our ongoing seminar, Colloquium in Law: Law and Religion. Justice Scalia will discuss his opinions in several of the Court’s religion clause cases, focusing especially on Employment Division v. Smith; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah; Lee v. Weisman; Bd. of Education of Kiryas Joel Village Sch. Dist. v. Grumet; Lamb’s Chapel v. Center Moriches Union Free Sch. Dist.; Capitol Square Review and Advisory Bd. v. Pinette; and McCreary County v. ACLU.
Academics in the New York area and beyond are welcome to attend, but for this visit, an RSVP to me or to Mark is essential.
Wonderful looking collection of essays edited by Thomas F.X. Noble and John Van Engen (both of Notre Dame), European Transformations: The Long Twelfth Century (Notre Dame 2012). The publisher’s description follows.
The “long twelfth century”—1050 to 1215—embraces one of the transformative moments in European history: the point, for some, at which Europe first truly became “Europe.” Historians have used the terms “renaissance,” “reformation,” and “revolution” to account for the dynamism of intellectual, religious, and structural renewal manifest across schools, monasteries, courts, and churches. Complicating the story, more recent historical work has highlighted manifestations of social crisis and oppression. In European Transformations: The Long Twelfth Century, nineteen accomplished medievalists examine this pivotal era under the rubric of “transformation”: a time of epoch-making change both good and ill, a release of social and cultural energies that proved innovative and yet continuous with the past.
Their collective reappraisal, although acknowledging insights gained from over a century of scholarship, fruitfully adjusts the questions and alters the accents. In addition to covering such standard regions as England and France, and such standard topics as feudalism and investiture, the contributors also address Scandinavia, Iberia, and Eastern Europe, women’s roles in medieval society, Jewish and Muslim communities, law and politics, and the complexities of urban and rural situations. With their diverse and challenging contributions, the authors offer a new point of departure for students and scholars attempting to grasp the dynamic puzzle of twelfth-century Europe.
Howard Friedman at Religion Clause reports that coordinated cert petitions have been filed in three recent property disputes between national church bodies and local congregations. Two decisions, discussed by CLR Forum here, arise from the Georgia Supreme Court; one comes from the Connecticut Supreme Court. All three cases question the application of the “neutral principles of law” doctrine, one of the two main approaches to church property disputes, which allows civil courts to resolve such disputes using regular civil law principles. The local congregations that lost these cases, two Episcopalian and one Presbyterian, are the petitioners; the national church bodies have not yet filed their responses.