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Rienzi on the Constitutional Right Not to Kill

Mark Rienzi (Catholic U. of America, Columbus School of Law) has posted The Constitutional Right Not to Kill. The abstract follows.

Federal and state governments participate in and permit a variety of types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings.

The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith.

This Article offers a new answer to this very old question: a federal constitutional right not to kill, protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.

The Court’s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are “deeply rooted in the Nation’s history and traditions.” Read more

Posted on by Marc O. DeGirolami

Bowers & Carpenter on Lyng v. Northwest Indian Cemetery Protective Ass’n

Amy Bowers and Kristen Carpenter have posted a very nice historical and sociological piece, Challenging the Narrative of Conquest: The Story of  Lyng v. Northwest Indian Cemetery Protective Ass’n.  Lyng is a very famous religious liberty case, in which the Supreme Court denied a free exercise claim by a Native American group which objected to the federal government’s plan to build a road through its sacred lands.  The abstract follows.

In Lyng v. Northwest Indian Cemetery Protection Association (1988), the Supreme Court held that it would not violate the Free Exercise Clause for the U.S. Forest Service to build a road through the “High Country,” an area that is sacred to Yurok, Karuk, and Tolowa Indians living in Northern California and Southern Oregon. Unable to show “coercion” of their religious beliefs, the Indian plaintiffs could not rely on the First Amendment to protect their interests in aboriginal territory now owned by the United States. As Justice O’Connor wrote: ‘‘Whatever rights the Indians may have to the use of the area, those rights do not divest the Government of its right to use what is, after all, its land.’’ Scholars have criticized the case as narrowing individual Free Exercise rights and expanding the government’s property rights, to the detriment of religious freedoms. While Lyng deserves this notoriety, an exclusive focus on defects in the holdings obscures other important dimensions of the case. In particular, the Supreme Court’s opinion comes close to silencing altogether the Indians’ perspective on their sacred High Country. Law and religion scholarship, with few exceptions, also ignores tribal voices both on the religious practices and advocacy strategies that were so key to the Lyng case and its aftermath. Indeed, the Forest Service road was never built and the tribes continue to practice their religions in the High Country.

Read more

Posted on by Mark Movsesian

Religious Arbitration and the Church of Scientology

CLR Forum friend (and soon to be CLR Forum Guest) Mike Helfand has a very interesting post on PrawfsBlawg about a Florida court decision this month upholding an arbitration agreement between the Church of Scientology and two of its former members. The former members, whom the church expelled last year, alleged that the church had wrongfully retained more than $27,000 the members had given it. The church argued that this dispute fell within an arbitration agreement the former members had signed when they joined the church — there’s an interesting rite of initiation — and the court agreed. The former members would have to submit to arbitration, notwithstanding the fact that all the arbitrators, according to the agreement, must be Scientologists in good standing.

Mike’s post addresses the interesting First Amendment issues that lurk here, particularly the intersection with the church autonomy doctrine. Under the Federal Arbitration Act, he notes, a court can vacate an arbitration award that is tainted by fraud, misconduct and collusion. Under the church autonomy doctrine, however, it’s not so clear. Mike reads Supreme Court cases like Serbian E. Orthodox Diocese v. Milivojevich as insulating religious arbitration from judicial review for fraud and collusion. Milivojevich concerned the disciplining of a bishop, though, and I wonder if the Court would extend its language beyond the ministerial context – a question I’m sure Mike will address in subsequent posts.

Posted on by Marc O. DeGirolami

Call for Papers: Reframing Punishment at Oxford

The following is a call for papers for an interesting looking conference at Oxford in September dealing with new approaches to thinking about punishment.  I reproduce it here because one of the concepts it raises is religious and/or spiritual punishment.  Interested parties should contact shs@inter-disciplinary.net.  

The concept of punishment has a long history and diverse cultural, social and criminological meanings.  Research and debate is often focused on the offender, the offence, the state and legal codification.  In contrast, this project seeks to re-frame these debates in order to combine the insights they produce with broader cultural meanings, social representations and ritualistic or other activities.  Therefore, the aim of the project is to develop different ways of understanding the penetration and complexity of shared understandings of punishment from a variety of perspectives, approaches and practitioner experiences.  Reframing the debate might be done through papers aimed at the personal or social levels.  We encourage unique approaches to punishment in terms of boundary control, whether it is control of evil, the politically subversive, the economically disruptive, or punishment in pursuit of system stability or marginalisation of liminality.   Papers might also cover punishment issues relating to defining the contours of disgust, desire, dread, or the abject.  They may even consider the operation and consequences of both wrongdoing and various forms of societal/social punishment.  Accordingly the project welcomes papers, work-in-progress and pre-formed panels from diverse areas of study such as the humanities, social sciences, business, science, law schools and the arts, as well as practitioners.

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Miller, “The Religious Roots of the First Amendment”

This year, Oxford University Press will publish The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State (forthcoming May 2012) by Nicholas P. Miller (Seventh–Day Adventist Theological Seminary).  The publisher’s description follows.

Traditional understandings of the genesis of the separation of church and state rest on assumptions about ‘Enlightenment’ and the republican ethos of citizenship. Nicholas Miller does not seek to dislodge that interpretation but to augment and enrich it by recovering its cultural and discursive religious contexts – specifically the discourse of Protestant dissent. He argues that commitments by certain dissenting Protestants to the right of private judgment in matters of Biblical interpretation, an outgrowth of the doctrine of the priesthood of all believers, helped promote religious disestablishment in the early modern West. This movement climaxed in the disestablishment of religion in the early American colonies and nation. Miller identifies a continuous strand of this religious thought from the Protestant Reformation, across Europe, through the English Reformation, Civil War, and Restoration, into the American colonies. He examines seven key thinkers who played a major role in the development of this religious trajectory as it came to fruition in American political and legal history: William Penn, John Locke, Elisha Williams, Isaac Backus, William Livingston, John Witherspoon, and James Madison. Miller shows that the separation of church and state can be read, most persuasively, as the triumph of a particular strand of Protestant nonconformity – that which stretched back to the Puritan separatist and the Restoration sects, rather than to those, like Presbyterians, who sought to replace the ‘wrong’ church establishment with their own, ‘right’ one. The Religious Roots of the First Amendment contributes powerfully to the current trend among some historians to rescue the eighteenth-century clergymen and religious controversialists from the enormous condescension of posterity.

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Helfand on Litigating Religion

Michael A. Helfand (Pepperdine University School of Law) has posted a very interesting article, Litigating Religion.  In an earlier liveblogging post, Professor DeGirolami discussed Professor Helfand’s talk drawn from the paper at the Religious Legal Theory Conference.  The abstract of the article follows.

This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating religion. Read more

Posted on by Mark Movsesian · 1 Comment

Neocons, Christians, and Syria

Robert Wright has an interesting post in the Atlantic on an emerging split between Neocons and Christians over American intervention in Syria. Although Neocons and conservative Christians joined in supporting a war to oust Saddam Hussein  in 2003, he writes, this time, conservative Christian journals, both Evangelical and Catholic, have been running articles warning of the danger to Syria’s Christians if the Assad regime should fall. Wright wonders whether Christian solidarity — “are we really ready to go to war against two million Christians?” – will stop conservative Christians from supporting American intervention this time. It’s a very interesting point. One should never discount the role that Christianity plays in American foreign relations, including America’s relations in the Middle East. And Syria’s Christians are definitely in danger. I’m not sure how much fellow-feeling there is, though. American Christians do not typically identify with the Christian communities of the Middle East, most of which, like the Copts in Egypt, are Orthodox rather than Catholic or Protestant. And fellow feeling for Iraq’s Christians did not stop conservative Christians from supporting the Iraq war, which has led to a catastrophe for Christians in that country. I’m sure that Christian solidarity plays some role, as Wright argues, but conservative Christian wariness about an incursion in Syria likely has much more to do with alienation from the current American President — with whom they certainly don’t identify.

Posted on by Marc O. DeGirolami

Inazu on Hauerwas and Dworkin

CLR Forum friend John Inazu has posted a sophisiticated piece on Ronald Dworkin’s legal and political theory (they are distinct but related), The Limits of Integrity.  John relies on the writing of Stanley Hauerwas to ground his critique of Dworkin.  The article is of a piece with some of John’s other efforts at integrating theological and legal argument.  An excellent read.  The abstract follows.

This article draws upon the work of theologian Stanley Hauerwas to demonstrate how Ronald Dworkin’s theory of law as integrity relies upon secular liberal presuppositions. Dworkin’s constraint on “religious convictions or goals” not only inhibits theological argument in our discussions about law and legal interpretation, but also neutralizes what may be the strongest objections to Dworkin’s normative views. The juxtaposition of Hauerwas and Dworkin is particularly apt because both hold similar interpretive commitments that hang in the balance between a fixed textualism and an unbounded pragmatism. Both justify their epistemic practices by a kind of faith — they do not and cannot know what comes next in their interpretive traditions.

Part I sketches Dworkin’s interpretive theory, and Part II notes its limitations. Part III introduces Hauerwas’s views on interpretation and suggests commonalities between Dworkin and Hauerwas. Parts IV and V illustrate the exclusionary effects of Dworkin’s premises on Hauerwas’s arguments by comparing the ways in which both thinkers approach the abortion controversy. Hauerwas’s arguments show that Dworkin has either imported his own normative commitments into his interpretive premises or failed to distinguish law as integrity from the constraints of public reason. Put differently, either Law’s Empire or Life’s Dominion has overreached. Dworkin hasn’t told us which it is, but Hauerwas shows us why the question cannot go unanswered.

Posted on by Marc O. DeGirolami

Broadwater, “James Madison”

Students of the religion clauses know that one of the most important figures in their drafting and adoption was James Madison.  Here is a new intellectual biography of Madison by Jeff Broadwater (Barton College), James Madison: A Son of Virginia and a Founder of the Nation (UNC Press 2012), which focuses in part on his contributions to American constitutional religious liberty.  The publisher’s description follows (though the description of Madison as a “systematic political theorist” doesn’t seem quite right to me).

James Madison is remembered primarily as a systematic political theorist, but this bookish and unassuming man was also a practical politician who strove for balance in an age of revolution. In this biography, Jeff Broadwater focuses on Madison’s role in the battle for religious freedom in Virginia, his contributions to the adoption of the Constitution and the Bill of Rights, his place in the evolution of the party system, his relationship with Dolley Madison, his performance as a wartime commander in chief, and his views on slavery. From Broadwater’s perspective, no single figure can tell us more about the origins of the American republic than our fourth president.

In these pages, Madison emerges as a remarkably resilient politician, an unlikely wartime leader who survived repeated setbacks in the War of 1812 with his popularity intact. Yet Broadwater shows that despite his keen intelligence, the more Madison thought about one issue, race, the more muddled his thinking became, and his conviction that white prejudices were intractable prevented him from fully grappling with the dilemma of American slavery

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Singh on Polygamy Law in India

Suraj Singh (University of Study and Research in Law) has posted Polygamy in India – With Special Reference to the Bulkiest Constitution in the World. The abstract follows.

The research work analyzes the issue of Polygamy with reference to the bulkiest constitution in the world. Most of the debaters argue that the Indian polygamy law only prohibits polygamy among one religious group. Thus, current Indian law poses a constitutional paradox because permitting polygamy among Muslim men but prohibiting it among Hindus under the freedom of religion provisions violates the equal protection provisions of the Indian Constitution. The author takes a departure from this standpoint and argues that there are several reasons why Polygamy was not made punishable under the muslim personal law. The reasons are umpteen, i.e., historical reasons, political reasons, etc. which are further elucidated in the report. Relevant constitutional provisions and judicial pronouncements are being articulated and discussed with reference to the issue of Polygamy.Hence, the legislation in India, prohibiting polygamy among Hindus yet allowing polygamy among Muslims, is not unconstitutional and it doesn’t violate the provisions of Articles 13, 14 and 15 of the Indian Constitution.