Posted on by Marc O. DeGirolami

Awarding Government Contracts to Catholic Organizations Violates the Establishment Clause

I blogged about this issue back in October.  During the Bush Administration years, HHS had awarded a contract to the United States Conference of Catholic Bishops for providing services to victims of human trafficking.  But the Obama Administration, in keeping with the general approach of its HHS, chose not to renew the contract, awarding it to another organization.  Just before that, the ACLU sued HHS claiming that its decision to award the contract to the Bishops violated the Establishment Clause.

And now Judge Richard Stearns (D. Mass.) has pronounced that awarding a government contract to a Catholic organization for the provision of services to victims of human trafficking, when that organization declines to refer victims for abortion services or to distribute contraceptives, violates the Establishment Clause.  There were standing issues involved here, but the merits determination apparently comes down to the judge’s belief that allowing the placement of restrictions on the implementation of the contract amounts to an endorsement of Catholicism, as well as an impermissible delegation of governmental functions to a religious entity (see, e.g., Larkin v. Grendel’s Den and Kiryas Joel).  On the latter point, Judge Stearns claims that the awarding of a government contract to the USCCB provides a “significant symbolic benefit to religion.”  I am not persuaded by this argument.  Even though I think the decision in Kiryas Joel is wrongly decided, I fail to see how the situation in Grendel’s Den is analogous to this case.  Grendel’s Den involved the delegation of a kind of blanket veto power to religious institutions as to liquor licenses within a certain distance from the institution.  The benefit there was hardly symbolic.  The benefit here is to much more attenuated, much more symbolic, and of different orders of substantiality.  The judge also saw fit to include long tracts of Justice Black’s separationist spiel in Everson, notwithstanding the fact that the current Supreme Court has largely abandoned the separationist view of the Establishment Clause.

At all events, the Obama Administration could not have gotten a more favorable outcome for its interests, it seems to me.  Its own decision to withdraw the contract from the USCCB has now been declared the only constitutionally viable option.

Posted on by Mark Movsesian

Tonight at Fordham Law

I’ll be participating on a panel tonight, “Sharing Sacred Space in Jerusalem,” at Fordham Law School’s Institute on Religion, Law & Lawyer’s Work. The panel will address how religious space in Jerusalem has been shared historically, how religious communities have interpreted customary law, and how they have engaged each other to resolve conflict. I’ll be discussing relations among Christians at the Church of the Holy Sepulcher in the Old City. Details are here. If you’re in the neighborhood, stop by and say hello.

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Upham on Society of Sisters, Natural Law, and the Pope’s Undeserved Praise

David R. Upham (U. of Dallas) has posted Pierce v. Society of Sisters, Natural Law, and the Pope’s Extraordinary — But Undeserved — Praise of the American Republic. The abstract follows.

In his 1929 encyclical, Divini Illius Magistri (On Christian Education), Pope Pius XI paid an extraordinary tribute to the United States, the Supreme Court, and more specifically, the Court’s interpretation of the Fourteenth Amendment in Pierce v. Society of Sisters. In the course of affirming that parents have the primary right and duty to direct their offsprings’ education, he quoted with approval from Justice McReynolds’s opinion in Pierce. Moreover, the Pope praised both the Taft Court for its reliance on natural law, and the whole American Republic for having ordained the natural rights of the family, and the natural law in general, in the Constitution.

This article will explore the significance and validity of this praise. This article concludes that this tribute, while extraordinary, was simply unwarranted. Rather, the Taft Court evinced an increasing indifference, if not hostility, to natural law concepts–an indifference clear in Pierce itself as well as Buck v. Bell and other cases. Read more

Posted on by Marc O. DeGirolami

Gjerde, “Catholicism and the Shaping of Nineteenth-Century America”

Another wonderful looking new book for today, this one by Jon Gjerde (Berkeley), Catholicism and the Shaping of Nineteenth-Century America (CUP 2012).  The publisher’s description follows.

Catholicism and the Shaping of Nineteenth-Century America offers a series of fresh perspectives on one of the most familiar themes – the nation’s encounter with Catholicism – in nineteenth-century American history. While religious and immigration historians have construed this history in univocal terms, Jon Gjerde bridges sectarian divides by presenting Protestants and Catholics in conversation with each other. In so doing, Gjerde reveals the ways in which America’s encounter with Catholicism was much more than a story about American nativism. Nineteenth-century religious debates raised questions about the fundamental underpinnings of the American state and society: the shape of the antebellum market economy, the transformation of gender roles in the American family, and the place of slavery in an ostensibly democratic polity were only a few of the issues engaged by Protestants and Catholics in a lively and enduring dialectic. While the question of the place of Catholics in America was left unresolved, the very debates surrounding this question generated multiple conceptions of American pluralism and American national identity.

Posted on by Marc O. DeGirolami

Asher, “Evolution and Belief”

Fascinating looking book by the paleontologist Robert Asher (Cambridge), Evolution and Belief: Confessions of a Religious Paleontologist (CUP 2012).  The publisher’s description follows.

Can a scientist believe in God? Does the ongoing debate between some evolutionists and evangelicals show that the two sides are irreconcilable? As a paleontologist and a religious believer, Robert Asher constantly confronts the perceived conflict between his occupation and his faith. In the course of his scientific work, he has found that no other theory comes close to Darwin’s as an explanation for our world’s incredible biodiversity. Recounting discoveries in molecular biology, paleontology and development, Asher reveals the remarkable evidence in favor of Darwinian evolution. In outlining the scope of Darwin’s idea, Asher shows how evolution describes the cause of biodiversity, rather than the agency behind it. He draws a line between superstition and religion, recognizing that atheism is not the inevitable conclusion of evolutionary theory. By liberating evolution from its misappropriated religious implications, Asher promotes a balanced awareness that contributes to our understanding of biology and Earth history.

Posted on by Marc O. DeGirolami

Tibi, “Islamism and Islam”

An interesting book by Bassam Tibi (Göttingen), Islamism and Islam (Yale 2012).  The publisher’s description follows.

Despite the intense media focus on Muslims and their religion since the tragedy of 9/11, few Western scholars or policymakers today have a clear idea of the distinctions between Islam and the politically based fundamentalist movement known as Islamism. In this important and illuminating book, Bassam Tibi, a senior scholar of Islamic politics, provides a corrective to this dangerous gap in our understanding. He explores the true nature of contemporary Islamism and the essential ways in which it differs from the religious faith of Islam.

Drawing on research in twenty Islamic countries over three decades, Tibi describes Islamism as a political ideology based on a reinvented version of Islamic law. In separate chapters devoted to the major features of Islamism, he discusses the Islamist vision of state order, the centrality of antisemitism in Islamist ideology, Islamism’s incompatibility with democracy, the reinvention of jihadism as terrorism, the invented tradition of shari’a law as constitutional order, and the Islamists’ confusion of the concepts of authenticity and cultural purity. Tibi’s concluding chapter applies elements of Hannah Arendt’s theory to identify Islamism as a totalitarian ideology.

Posted on by Mark Movsesian

Call for Papers: The Changing Faces of Religion and Secularity

The Institute for Culture and Society at the University of Navarra (Spain) has posted a call for papers for a conference this summer on “The Changing Faces of Religion and Secularity.” Details are here.

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Gross on Emergency Measures in Jewish Law

Oren Gross (U. of Minn. Law School) has posted Violating Divine Law: Emergency Measures in Jewish Law. The abstract follows.

Judaism is a thoroughly legal culture. Structured around the concept of mitzvot (commandments), Jewish law regulates both the public sphere of social and political interactions and the private sphere of human conduct. Jewish law is founded on a single source of legal authority, i.e., divine will as it is expressed in the Torah that was revealed to Moses at Sinai and transmitted down the generations. Yet, applying the Torah’s principles and rules to everyday life requires further decision-making in the processes of interpretation, application and administration of the law. Jewish law embraces the principle of human decision-making responsibility by recognizing the exclusive competence of halakhic authorities to determine the meaning of the Torah by way of interpretation and exegesis.While laws and regulations that are put in place by halakhic authorities without having a direct basis in the biblical text are binding they cannot contradict or overturn primary (divine) legislation. To the extent that they purport to do so, they would be “unconstitutional” and invalid.

Yet, the paper argues that this has not always been the case. The first argument is that dealing with such questions as could rules promulgated by the halakhic authorities go so far as to practically “overrule” the divinely ordained law of the Torah and could the sages permit or even command that which the Torah forbids, or prohibit that which under the Torah had been allowed, Jewish law has always given these questions a qualified affirmative answer despite the divine source of the Torah law. The second claim is that the legal basis for the sages’ ability to make emergency decisions and adopt emergency measures is not entirely clear. In fact, the paper argues that the ambiguity about the legal foundation of such radical authority or power is purposeful. While some halakhic authorities identify the source of their authority as present within the framework of the law, others seem to recognize that their actions had been lacking legal authority. Rather than invoking their widely-recognized broad interpretative powers and attempt to make the claim that their actions and decisions had been in accordance with the dictates of the Torah they accept, albeit tacitly, the need to act in contravention of the Torah.

Posted on by Mark Movsesian

Lobby Day and Rally for Reason

Lots of religion-related politicking this weekend. In addition to the Stand Up Coalition‘s Rally for Religious Freedom, today, a group called the Secular Coalition for America (“Representing Secular Americans in Our Nation’s Capital”) will hold a “Lobby Day for Reason.” Lobby Day is designed “to allow atheists, agnostics, humanists, and secular Americans to directly lobby their members of Congress on the issues that matter to us.” I imagine one of those issues is the unfortunate tendency of religious organizations to lobby members of Congress. Tomorrow, the group will host a day-long “Reason Rally” on the National Mall, featuring Richard Dawkins and Jessica Ahlquist, the Rhode Island high school student who appeared as plaintiff in this case.

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Wright on the Coercion Test and Establishment Clause Cases

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