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Murray on Assumptions in Hosanna-Tabor

Brian M. Murray (Staff Attorney, Community Legal Services of Philadelphia) has posted The Elephant in Hosanna-Tabor. The abstract follows.

This article identifies an unarticulated and widely ignored assumption in the Supreme Court’s recent religious liberty decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which grounded the ministerial exception in the Free Exercise Clause. Specifically, the Court’s failure to articulate which organizations can invoke the ministerial exception could undermine the Free Exercise Clause that is the very basis of the exception’s existence. I argue that the Court’s oversight will result in significant future litigation in a post-Employment Division v. Smith world. The Court’s decision in Hosanna-Tabor uses ambiguous and careless language when failing to articulate the assumption mentioned above. Chief Justice Roberts’ majority opinion uses phrases such as “religious body,” “church,” and “religious organization” interchangeably and without explanation. I explain why this is inadequate from an historical, jurisprudential, and practical perspective by highlighting the tradition of recognizing institutional autonomy and the rise of unconventional religious entities, known as “parachurches,” that self-define as religious. These organizations will present the trickiest case studies with respect to the ministerial exception, thereby making future litigation on this issue likely.
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Crossroads: Professor Goldford to Lecture on Interfaith Understanding in America

In relation to my recent post, Goldford:  The Constitution of Religious Freedom, Professor Dennis J. Goldford, of Drake University, will be speaking on March 16 at the Interfaith Alliance of Iowa monthly series, Crossroads:  A Project About Civility.  Prof. Goldford will discuss his recently published book, The Constitution of Religious Freedom: God, Politics, and the First Amendment (Baylor, 2012).  Please see the Interfaith Alliance’s announcement for more details.

Posted on by Mark Movsesian · 2 Comments

First Things Lecture Tonight

Just a reminder that I’ll be speaking tonight at the First Things editorial offices in Manhattan on the subject of equality for Christians in the Middle East. Details are here. If you’re in the neighborhood, please stop by and say hello.

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Goldford: The Constitution of Religious Freedom

This month, Baylor University Press publishes The Constitution of Religious Freedom:  God, Politics, and the First Amendment by Dennis J. Goldford.  Goldford, Professor of Politics at Drake University in Iowa, argues that the Religion Clauses of the First Amendment do not create a national religious identity, but, instead, create a religious liberty located squarely in the individual.  The publisher’s abstract follows:

In a time when the question of American religious identity underlies much political conversation that fills the public square, Dennis Goldford directs his readers to consider the First Amendment. The founding fathers’ words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” are the constitutional means of ensuring, however imperfectly, the American freedom to stand for something sacred. In his analysis, Goldford ably demonstrates that the very nature of these religion clauses establishes protection not for religion but for religious freedom. The Constitution of Religious Freedom argues that religious identity inheres not in the nation, but in the individual citizen.

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Moran: Islamic Law, Religious Freedom, and ERISA-Backed Pension Plans

Beverly I. Moran, tax-law scholar and Professor of Law at Vanderbilt Law School, has posted Islamic Law Meets Erisa:  How America’s Private Pension System Unintentionally Discriminates Against Muslims and What to Do About It.  The article explores the position of Muslim employees, who can be disadvantaged when their religious beliefs prevent them from taking retirement funds generated through interest schemes; the challenge to, and obligations of, employers in accommodating these employees’ beliefs; and related Title VII jurisprudence.  The author’s abstract, describing this complicated and troubling legal landscape, follows the jump. Read more

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Wilson on Accommodating Religion in Family Law

Robin Fretwell Wilson (Washington and Lee University – School of Law) has posted The Perils of Privatized Marriage. The abstract follows.

Governments around the world continue to struggle with how to accommodate religious minorities in an increasingly pluralistic society, and how to accommodate religion in matters of family law. Efforts to respect religious understandings in family disputes seem at first blush innocuous: they would allow religious groups to define their own norms and celebrate the rich diversity of society. However, the experience of women and children of multiple faiths across the world demonstrates that religious deference extracts an unconscionable price. As the Volume in which this Chapter appears illustrates, such proposals would confer considerable latitude in family matters not only on adherents of Islam, but on Christians, Jews, and members of other faiths.
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Posted on by Marc O. DeGirolami

“The Noblest of All Sublunary Beings”

Blackstone’s Commentaries on the Laws of England are available in full here.  And here is a lovely passage from the very beginning of the Commentaries:

This, then, is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should, in all points, conform to his Maker’s will.

Posted on by Marc O. DeGirolami · 1 Comment

Prest, “William Blackstone”

Wilfrid Prest’s biography, William Blackstone: Law and Letters in the Eighteenth Century, was published back in 2008, but it has just been released in paperback.  The book is an absolutely wonderful treatment of this deeply important figure in English and American law, and I note it here because it discusses some of Blackstone’s religious commitments and views.  The publisher’s description follows.

Lawyer, judge, politician, poet, teacher, and architect, William Blackstone was a major figure in eighteenth century public life. Over his varied and brilliant career he made profound contributions to English politics, law, education, and culture through involvements in legal practice, Parliament, and the University of Oxford. Throughout he also remained engaged in his society’s literary and spiritual life. Despite the breadth and influence of his work, Blackstone the man remains little known and poorly understood, the lack of engagement with his public and private life standing in stark contrast to the scale of his influence, particularly on the development and teaching of the law.

Blackstone’s ‘Commentaries on the Laws of England’ remains the most celebrated and influential text in the Anglo-American common-law tradition. This great book has inevitably overshadowed its author, while the dispersal of his personal and professional papers further complicates the task of understanding the man behind the work. The lack of a thorough account of Blackstone’s life has fuelled controversy surrounding his intellectual background and political views. Was he the deeply reactionary conservative painted by Bentham, or rather a committed reformer and early champion of human rights?

The present biography makes full use of a considerable body of new evidence that has emerged in recent years to shed light on the life, work, and times of this neglected figure in English and American history. Exploring Blackstone’s family upbringing and private life, his political activities and ideology, his religious outlook, and championing of the enlightenment, this book weaves together the threads of an extraordinary mind and career.  

Posted on by Marc O. DeGirolami

French PM to Jews and Muslims: Modernize!

Very interesting story here (h/t Faithworld):

France’s prime minister urged Muslims and Jews to consider scrapping their halal and kosher slaughter laws on Monday as President Nicolas Sarkozy and his allies stepped up their efforts to woo far-right voters….

“Religions should think about keeping traditions that don’t have much in common with today’s state of science, technology and health problems,” Fillon told Europe 1 radio….

The “ancestral traditions” of ritual slaughter were justified for hygienic reasons in the past but were now outdated, he said. “We live in a modern society.”

I appreciate the persistent irritation that the Prime Minister must feel.  These are frustrating times for the agents of progress on both right and left — and, it seems, nationally and abroad.  It’s difficult to get folks to realize that modern society and contemporary science, technology, and medicine have simply eclipsed and obviated their ancient moralities and traditions.  But if we can’t persuade them, I suppose coercive law stands ready to help.

Posted on by Mark Movsesian

Cardinal Suggests Legal Challenge to Contraception Mandate

In a letter he sent Friday to Catholic bishops, Cardinal Timothy Dolan, President of the US Conference of Catholic Bishops, stated that, notwithstanding President Obama’s invitation to “work out the wrinkles,” talks between the Conference and the White House on the revised contraception mandate have not gone well. According to the cardinal, White House staff have stated that the Administration will not expand the the exemption for religious institutions and have suggested the bishops listen to more “enlightened” voices within Catholicism. As a result, the cardinal wrote, the Conference is considering litigation:

In the recent Hosanna-Tabor ruling, the Supreme Court unanimously defended the right of a Church to define its own ministry and services, a dramatic rebuff to the administration, apparently unheeded by the White House. Thus, our bishops’ conference, many individual religious entities, and other people of good will are working with some top-notch law firms who feel so strongly about this that they will represent us pro-bono. In the upcoming days, you will hear much more about this encouraging and welcome development.

Hosanna-Tabor  is not directly relevant to this issues surrounding the mandate, of course, but I take it the cardinal is using the case more or less rhetorically. In Hosanna-Tabor, the Court unanimously rejected the Administration’s assertion that the  Free Exercise Clause does  not apply to a church’s employment of its minsters — as the Court stated, a rather “remarkable” assertion that suggests an unfortunate antipathy for the special protection the American Constitution offers religious communities.