R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Why a Coercion Test is of No Value in Establishment Clause Cases. The abstract follows.
Courts have increasingly referred to some sort of ‘coercion’ test in resolving Establishment Clause cases. This is not surprising, given the references to coercion in other areas of the law, and the serious criticism received by other, familiar Establishment Clause tests. As it turns out, though, the literature of the social sciences and humanities, and of philosophy especially, show, initially, the discouraging complexity of trying to rely on any form of coercion test in the Establishment Clause cases.
The crucial problem, however, is not precisely one of the complexity, in this context, of the idea of coercion. Rather, the idea of coercion turns out to be remarkably unclear, open, and in various ways crucially undeveloped and incomplete. Read more
A group calling itself the “Stand Up Coalition” is planning a set of rallies across the nation tomorrow (March 23) to protest the HHS contraception mandate. The group’s website states that religious leaders and public figures will speak at the rallies, scheduled to start at noon local time, and predicts that thousands will participate. It’ll be interesting to see how this all plays out, and what sort of media attention the rallies get.
A few miles from CLR headquarters in New York City, in the neighborhood of Flushing, stands the John Bowne House. Bowne was a seventeenth-century English Quaker who lived in what was then the Dutch colony of New Netherlands. In 1662, he held a Quaker meeting in his home, which greatly irritated Governor Peter Stuyvesant, a strict Calvinist. When Bowne refused to pay a fine for conducting the meeting, Stuyvesant shipped him off to Amsterdam to face the colonial authorities, who sided with Bowne: the Flushing Charter protected religious liberty. Bowne returned to Flushing and has become famous, at least in these parts, as an early advocate for religious freedom. Stuyvesant was deposed two years later when the English seized New Netherlands.
I recount this episode from local history because it doubtless figures in a forthcoming, interesting-looking book by Columbia history professor Evan Haefeli, New Netherland and the Dutch Origins of American Religious Liberty (University of Pennsylvania). The publisher’s description follows.
The settlers of New Netherland were obligated to uphold religious toleration as a legal right by the Dutch Republic’s founding document, the 1579 Union of Utrecht, which stated that “everyone shall remain free in religion and that no one may be persecuted or investigated because of religion.” For early American historians this statement, unique in the world at its time, lies at the root of American pluralism.
New Netherland and the Dutch Origins of American Religious Liberty offers a new reading of the way tolerance operated in colonial America. Using sources in several languages and looking at laws and ideas as well as their enforcement and resistance, Evan Haefeli shows that, although tolerance as a general principle was respected in the colony, there was a pronounced struggle against it in practice. Crucial to the fate of New Netherland were the changing religious and political dynamics within the Read more