The Crossroads Cultural Center will host a panel discussion, “The Original Source of Law: The Individual? The State? God?”, at NYU on May 9. The panel will address natural law, both as a general concept and in its practical implications. Speakers include Robert George (Princeton) and Andrea Simoncini (Florence). Details are here.
Thanks to Anna Su and Welcome to Mike Helfand
Thanks very much to Anna Su, who has been blogging with us for the month of April. We enjoyed having you with us, Anna, and hope you’ll come back soon.
And welcome to our next guest blogger, Mike Helfand, who will be posting with us in May. Mike joins us from Pepperdine, where he is Associate Professor of Law and Associate Director of the Diane and Guilford Glazer Institute for Jewish Studies. He writes in law and religion, arbitration, and constitutional law; his most recent piece, Litigating Religion, will appear in the Boston University Law Review. Welcome, Mike!
Religious Freedom Promotion and its Discontents
A month ago, the U.S. Congress appointed Prof. Robert George and Dr. Zuhdi Jasser to serve as the new commissioners on the U.S. Commission on International Religious Freedom (USCIRF). Speaker Boehner appointed George while Senator McConnell appointed Jasser. (The appointments were not without some controversy. An online petition against their appointments made the rounds accusing both of anti-Muslim bias through their organizational affiliations.) It still surprises me that the statute creating the USCIRF remains unknown to many Americans today. According to its website, the USCIRF “monitors and advocates for religious freedom abroad wherever that right is being abused. USCIRF also offers policy solutions to improve conditions at the critical juncture of foreign policy, national security and international religious freedom standards.” The Commission almost closed shop – it was given a last-minute reauthorization December 16 of last year by Congress and its mandate was extended up to 2018. Interestingly, there is a separate Office for International Religious Freedom within the State Department. The difference between the two is that the USCIRF is an independent federal government entity while the other works within the institutional framework of the State department. In any case, Canada, apparently the new constitutional powerhouse of the world, must think this office is a pretty good idea. Last January, the Conservative government announced the creation of an Office of Religious Freedom within the Canadian Foreign Ministry which would probably use its American counterpart as a model of sorts.
In this last post (thanks Mark and Marc for the guest stint!), I want to talk a bit about the history and implications of these official religious freedom promotion activities. Religious freedom has always occupied a special place in the pantheon of American freedoms. But the origins of this office are much more recent than what an ordinary observer might think. To be sure, Read more
Movsesian on the Tanzimat
My colleague, Mark Movsesian, has posted a short, highly readable, and instructive piece about an important episode in nineteenth-century religion-state relations in the Middle East, The Price of Ottoman Failure. The abstract follows.
This essay, written for a symposium on secularity in the contemporary Middle East, explores the dangers secularization may pose for non-Muslims, especially Christians. It looks to a historical example, the 19th Century Ottoman reform movement known as the Tanzimat. The Tanzimat aimed to modernize the empire and revise its law to reflect secular European models. One major reform gave legal equality for the first time to non-Muslims. Equality contradicted classical Islamic law and contributed to a violent backlash against Christians that set the stage for genocide in the 20th Century. Of course, the story of the Tanzimat’s failure is complex. Factors other than religious law were also involved, and one cannot draw a direct analogy to events that occurred 150 years ago in a different society. Nonetheless, the story of the Tanzimat and its failure suggests that secularization in the Middle East is a delicate matter that poses risks for Christian communities.
Constitutional Appoggiaturas
The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer — as a moment for loose impromptu brilliance. And in his exceptional piece, “Constitutional Cadenzas,” Dan Farber argued that there are sections of the Constitution which contain cadenzas — “instructions for the interpreter to improvise on the Constitution’s grand themes.” Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment’s Privileges or Immunities Clause as such sections. “[B]oth of these constitutional provisions,” he wrote, “call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration.” Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation — specifically, “transnational legal sources” and “contemporary social consensus” — the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius. The performer of the cadenza may know something about previous performers — he may perhaps take notice of past interpretations — but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.
I have a different musical metaphor in mind — the appoggiatura. The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody. In Italian, ‘un appoggio’ is a support or something to lean on in a moment of weakness or indecision. Like the cadenza, the appoggiatura is an embellishment — it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example. But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will. The appoggiatura cannot stray very far at all from the melody — it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after. It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.
What might be a constitutional appoggiatura? There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation. Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution. Each has an interpretive role to play. Madison put it this way in Federalist 49:
Court Dismisses Muslim Harrassment Suit
The U.S. District Court for the Northern District of Illinois has dismissed a suit by a Saudi Arabian Muslim plaintiff who worked as a child care attendant at the Cook County Circuit Court, and who claimed that her supervisor harrassed her because she wore a headscarf, that he prayed with other employees, and that he referred to other employees as “good Christians.” The plaintiff brought Establishment and Free Exercise Clause claims, and both were dismissed. On the establishment front, the court held that there was no allegation of a “governmental policy or practice underlying the alleged misconduct at issue in this case or any entanglement by any governmental entity with religion or preference of any religion by a governmental entity.” As for free exercise, the court held that the only fact related to this claim in the complaint was an allegation that one of the defendants on one occasion denied the plaintiff time off for an Islamic religious observance. This was insufficient to make out a free exercise violation.
The case is Huri v. Circuit Court of Cook County, 2012 WL 1431268 (N.D. Ill. April 25, 2012).
Reviews of Douthat’s “Bad Religion”
Here are a couple of reviews of Ross Douthat’s very interesting, and certainly provocative, book, Bad Religion: How We Became a Nation of Heretics (Free Press 2012). As one might expect, given the claims in the book and the respective reviewers, the reviews are generally quite negative (one can always sense in a dyspeptic review like Winters’s something more at work than just a straight review of the book; see also his reply to Douthat’s response), though Randall Balmer does have one or two positive things to say. (Aside: he also has this perplexing line, “institutions, in my experience, are remarkably poor vehicles for piety” — and one wonders why there is a difference of opinion between himself and Douthat about the value of the Church…).
Though I have not yet read it, one of the key claims in the book seems to relate to the Establishment Clause at least in an indirect way: in the absence of an established national church, Christianity was particularly important for the United States as a cultural binding agent. That would indeed be upsetting to those who view the primary purpose of the Establishment Clause either in separationist terms or as a way to secularize society.
Paul Ryan and the Catholic Bishops
When the US Conference of Catholic Bishops issued its statement on religious freedom this month, critics complained the bishops were being inappropriately partisan. The bishops’ statement portrayed the Obama Administration’s contraceptives mandate as a major threat to religious freedom. Critics argued that the bishops shouldn’t have taken sides in an election year.
This week, there was evidence that Catholic social teaching cuts both ways. Yesterday, House Budget Committee Chairman Paul Ryan (R-Wisconsin) gave a speech at Georgetown University. Ryan is famous, of course, for proposing a budget that cuts the growth in federal benefits programs, like Medicare and Medicaid. Earlier this month, the Bishops Conference wrote Congress to oppose the proposal. The Ryan budget inappropriately burdens the poorest Americans, the bishops argued, and fails to meet “moral criteria.” At Georgetown, where 90 faculty members and priests signed a letter admonishing him for misunderstanding Catholic social teaching, Ryan defended himself on religious grounds. “I suppose that there are some Catholics who for a long time thought they had a monopoly of sorts, not exactly on heaven, but on the social teaching of our Church,” he said. (Ryan was perhaps referring to the Catholic bishops). “There can be differences among faithful Catholics on this.”
As an outsider, I’m not in the best position to evaluate whether Ryan is correct in suggesting that Catholic social teaching allows more room for debate about how best to assist the poor than about the need to avoid cooperation with the distribution of contraceptives. I’ve certainly heard people make that argument. For me, the interesting thing is how quickly the rhetorical positions switch. Politically liberal Catholics often argue that Church teaching, properly understood, allows latitude for dissent on sexuality; politically conservative Catholics argue that Church teaching allows latitude on economics. What this indicates, perhaps, is that Catholicism, like other traditional Christian confessions, represents a political third way: conservative on social issues, especially sexuality, but liberal on fiscal issues. Given contemporary American politics, that doesn’t seem a winning combination.
Piatt, “Catholic Legal Perspectives”
Robert William Piatt, Jr. (St. Mary’s) has published Catholic Legal 
Perspectives (Carolina Academic Press 2012), designed for classes on jurisprudence and Catholic legal theory. The publisher’s description follows.
This book examines our system of justice by identifying, in several critical areas, how Catholic principles and legal principles overlap and diverge. While it is not expected or required that the reader agree, in every instance, with either the law or the Catholic perspectives, the reader of this work will come away with an understanding of both. Critiques and responses are included throughout. Topics include family issues (marriage, same sex marriage, divorce, and annulment), immigration, public assistance, and matters of life and death (including abortion, euthanasia, and the death penalty).
Chicago-Kent Law Review to Publish Symposium on Neutrality
The Chicago-Kent Law Review will publish a symposium, “The Future of the Establishment Clause: Neutrality, Religion, or Avoidance?”, next month. Edited by Bruce Ledewitz (Duquesne), the symposium will discuss
the future of the Establishment Clause, confronting three interrelated questions: 1) If the Court is to reaffirm government neutrality toward religion, can such neutrality coexist with resurgent popular religious belief at the same time that it serves the needs of a growing national secularism?; 2) Conversely, if the Court is to permit government embrace of religion, can it do so without alienating the large numbers of nontheistic believers and nonbelievers?; and 3) How far can the Court take the turn to standing before it undermines noneconomic approaches to injury-in-fact in all of constitutional law and before it renders even classic violations of the Establishment Clause essentially unchallengeable?
Contributors include Richard Albert (Boston College), Christopher Lund (Wayne State), Samuel Levine (Touro), Zachary Calo (Valparaiso), and Mark Rahdert (Temple). For more information, please contact Editor in Chief Maggie Master at the Chicago-Kent Law Review.