Lots of law-and-religion news out of Britain this weekend. Here’s another story: in Catholic parishes in Britain today, worshipers heard a pastoral letter from Archbishop Vincent Nichols, the Catholic primate, warning about the dangers of legalizing same-sex marriage. The letter follows similar statements by Anglican bishops, including Archbishop of Canterbury Rowan Williams and Archbishop of York John Sentamu; Williams is quoted as saying that legalization would force “unwanted change on the rest of the nation.” The bishops’ statements follow reports that the coalition government of Prime Minister David Cameron is considering introducing legislation to legalize same-sex marriage in Britain. It’s not clear from the reports whether the legislation would authorize only civil same-sex marriages or actually alter the articles of the Church of England — adopted by act of Parliament — to authorize religious same-sex marriages as well. I assume the former, but I don’t know enough about Parliament’s role in setting doctrine in the Church of England.
Government of Great Britain: No Right to Wear a Cross at Work
An extraordinary position for, of all countries, Great Britain to take before the European Court of Human Rights. Here’s a bit from the story:
In a highly significant move, ministers will fight a case at the European Court of Human Rights in which two British women will seek to establish their right to display the cross.
It is the first time that the Government has been forced to state whether it backs the right of Christians to wear the symbol at work.
A document seen by The Sunday Telegraph discloses that ministers will argue that because it is not a “requirement” of the Christian faith, employers can ban the wearing of the cross and sack workers who insist on doing so.
Davie on Law, Sociology, and Religion
I missed this when it came out a few months ago — Grace Davie’s Law, Sociology, and Religion: An Awkward Threesome — in the Oxford Journal of Law and Religion. Like all of the journal’s content at present, it is available for free. And our readers will want to check out this piece. Here is the opening of Professor Davie’s extremely interesting article:
Lawyers are increasingly interested in religion—for good reason. Religious disputes demand the attention of legal experts—an interest that is likely to grow given that almost all of us live in religiously diverse societies, in which effective forms of co-habitation have to be established and regulated. Sociologists, initially distracted by the assumption that modernization implied secularization, are similarly inclined, spurred on by the presence of religion in public as well as private debates. No longer is it possible to relegate religion to the sidelines of social science. Sociologists, finally, have always been interested in the law—recognizing that the law and law-making reflect the changing nature of society. The interpretation of law, conversely, sharpens the issues at stake and becomes itself an important factor in social change.
All that said, these can be difficult conversations. Lawyers and sociologists are differently trained and ask different questions about religion, as indeed about everything else. They do not always listen to each other. Lawyers, for example, create and interpret legal frameworks, some of which deal with religion; they are less interested in the messy realities of lived religion as this is experienced in everyday life. If it is one thing to deem certain forms of religion to be legally acceptable and others not, it is quite another to grasp the implications for the individuals and communities, that fall—at times arbitrarily—on one side of the line or the other. Why, for example, do certain religious movements fare better in some parts of Europe than in others? Clearly this has nothing to do with the religious movements themselves, and everything to do with the understandings of tolerance and toleration in the host society, and the historical specificities that lie behind this. Legal judgements must be placed in context.
Professor Davie is surely right to say that lawyers, sociologists, and religious studies scholars are pursuing very different sorts of inquiries and projects, and she is surely also right to say that they nevertheless can learn a great deal from one another.
Call for Papers: Notre Dame Journal of Law, Ethics, and Public Policy
A notice from the excellent Notre Dame Journal of Law, Ethics, and Public Policy:
The Notre Dame Journal of Law, Ethics and Public Policy is currently soliciting articles for publication in our upcoming Spring 2013 issue. The issue will focus on the legal, ethical and policy considerations of a variety of important public policy issues currently facing the country. The Journal is unique among legal periodicals because it examines public policy questions within the framework of the Judeo-Christian intellectual and moral tradition. The Journal seeks to create a dialogue of ethical issues that is inclusive of diverse perspectives. The Journal has a national audience of persons actively involved in the formulation of public policy, and often includes timely pieces from a broad spectrum of prominent scholars and officials. Past contributors include Presidents George W. Bush and Ronald Reagan, Justice William J. Brennan, Secretary-General Kofi Annan, Judges Richard Posner and Diarmuid O’Scannlain, Senators Bill Bradley and Orrin Hatch, Governor Mario Cuomo, Mayor Rudolph Giuliani, Father Richard John Neuhaus, and Michael Novak, among others. The Journal’s unique focus is widely recognized, as demonstrated in citations to the Journal by various state and federal courts, including the United States Supreme Court.
If you are interested in submitting a piece for publication, please contact me directly at (505) 280-8334, or via e-mail at bhoughto@nd.edu. Should you wish to examine a prior issue, the Journal would be pleased to provide you with a copy. On behalf of myself, the Journal, and the University of Notre Dame, thank you for your kind consideration.
Sincerely,
Breanna Houghton
Solicitation Editor
Notre Dame Journal of Law, Ethics and Public Policy
Classic Revisited: Stoner, “Common-Law Liberty”
One of the books that I’ve learned most from in the last few years is
James R. Stoner’s terrific Common-Law Liberty: Rethinking American Constitutionalism (2003). Stoner’s thesis is not only that American constitutional law cannot be understood well without reference to the common law tradition, but that “the common law is a key guide to understanding the fundamental principles of our Constitution and a guide for deciding contemporary constitutional cases.” Common-law constitutionalism has been taken in different directions in recent years (see, e.g., David Strauss’ interesting work). But it is in Stoner that, in my view, one sees the purest and most convincing expression of common-law constitutionalism.
Here is a particularly insightful passage from the book (at 59) dealing with common-law constitutionalism with respect to the religion clauses.
To attend to the common-law moment in exploring the law of free exercise is, in other words, to examine as a source of law the American experience of religious liberty, as it can be collected from constitutions and statutes, and even from the laws and traditions of particular churches. Obviously, these various sources of law will not weigh equally in a court’s determination of a particular dispute before it, but it is characteristic of common law to determine the applicability of rules in the context of the facts of the instant case, not to seek a single rule or theory to encompass all imaginable cases. It is, for example, not irrelevant to such a consideration that common law itself arose in a particular religious context . . . . Nor is it irrelevant to such a consideration that American circumstances with regard to religion, at the time of the Founding and perhaps still today, are unique, and that those circumstances vary markedly from state to state. To recommend a common-law perspective, then, is to suggest avenues of inquiry rather than to propose a ready theory. Yet it does suppose a certain openness to experience, both in its deference to the wisdom collected in tradition and in its willingness to entertain the possibility of a genuinely new and unanticipated case.
Christianity Today on KONY 2012
Yesterday, I was chatting with a student here at St. John’s who told me about the KONY 2012 campaign that has gone viral, receiving tens of millions of hits in just a few days this week. KONY 2012 is a campaign by a non-profit organization called Invisible Children to arrest and bring to trial Joseph Kony, the leader of the so-called Lord’s Resistance Army, which has been terrorizing Uganda. In particular, the campaign alleges, Kony has been involved with the abduction of tens of thousands of children to serve as soldiers in the LRA. The campaign wants Kony prosecuted for war crimes.
One reason the campaign has gone viral is that Invisible Children has targeted Christian activists in America, who have been promoting KONY 2012 on their blogs. (Although Invisible Children is not a sectarian organization, its founders are apparently Christians whose zeal derives at least in part from their Christian convictions). According to Christianity Today, however, these activists have begun to have second thoughts. Apparently, Invisible Children has a mixed record for transparency and truth-telling. Critics also point out that Invisible Children backs the Ugandan army, which itself has been accused of human-rights violations. The story is here.
Justice John Marshall Harlan on Education and Religion
In my constitutional law class, we are studying a very interesting case, Berea College v. Kentucky (1908). The case involved a private religious college which wished to teach white and African American students together; this was criminalized at the time by the state of Kentucky, which had enacted a statute forbidding any educational institution from integrated teaching. The statute was upheld on a narrow ground by the Court, and Justice John Marshall Harlan (the first), himself a Kentuckian, dissented (as, of course, he often and famously did).
I reproduce below an interesting and, in my view, constitutionally provocative law-and-religion passage from Harlan’s dissenting opinion:
The capacity to impart instruction to others is given by the Almighty for beneficent purposes; and its use may not be forbidden or interfered with by government, — certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety . . . . If the common-wealth of Kentucky can make it a crime to teach white and colored children together at the same time, in a private institution of learning, it is difficult to perceive why it may not forbid the assembling of white and colored children in the same Sabbath school, for the purpose of being instructed in the Word of God, although such teaching may be done under the authority of parents of the children. So, if the state court be right, white and colored children may even be forbidden to sit together in a house of worship or at a communion table in the same Christian church. In the cases supposed there would be the same association of white and colored persons as would occur when pupils of the two races sit together in a private institution of learning for the purpose of receiving instruction in purely secular matters. Will it be said that the cases supposed and the case here in hand are different, in that no government, in this country, can lay unholy hands on the religious faith of the people? The answer to this suggestion is that, in the eye of the law, the right to enjoy one’s religious belief, unmolested by any human power, is no more sacred nor more fully or distinctly recognized than is the right to impart and receive instruction not harmful to the public. The denial of either right would be an infringement of the liberty inherent in the freedom secured by the fundamental law.
Vatican Office Rules American Bishop Wrongly Closed Parishes
According to news reports, a Vatican office has taken the extraordinary step of overruling a bishop’s decision to close 13 parishes in his diocese. The Bishop of Cleveland, Richard Lennon, ordered the parishes closed as part of a diocesan downsizing three years ago. Parishioners challenged the closings as violations of canon law, and yesterday the Congregation for the Clergy, an office in the Roman Curia, ruled in their favor. According to the parishioners’ lawyer, the Congregation held that Bishop Lennon had failed to follow the canonical procedure for closing parishes, for example, by neglecting to consult clerical advisers and issue a formal decree. Bishop Lennon may now appeal to the Vatican’s high court. This week’s ruling is yet another example of the growing interest in canon-law litigation in the Catholic Church.
Esbeck on Hosanna-Tabor and the First Amendment
Carl H. Esbeck (University of Missouri School of Law) has posted A Religious Organization’s Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment. As noted by Professor DeGirolami in an earlier post, Professor Esbeck co-authored an amicus brief in the case. The abstract of the article follows.
In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required.
Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during a sacrament. Smith held that the Free Exercise Clause was not implicated when Oregon enacted a neutral law of general applicability that happened to have an impact on a religious practice. The Court admitted that the nondiscrimination law in Hosanna-Tabor was a general law of neutral application that happened to have an impact on the School’s ability to fire a teacher. It distinguished Smith. Read more
Bickers on Standing and Establishment Clause Jurisprudence
John M. Bickers (Northern Kentucky University – Salmon P. Chase College of Law) has posted a very interesting piece, Standing on Holy Ground: How Rethinking Justiciability Might Bring Peace to the Establishment Clause. The abstract follows.
The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting lack of clarity leaves lower courts to their own devices in endeavoring to calm increasingly intense struggles. Read more