Posted on by Mark Movsesian

The NYT on Divisions Among Egyptian Islamists

An interesting piece on the Egyptian elections in the Times. Now that an electoral commission has disqualified the Muslim Brotherhood’s preferred presidential candidate , Khairat al-Shater, as well as the leading Salafi candidate, the two principle Islamist contenders are the MB’s Mohamed Morsi and a rival, Abdel Moneim Aboul Fotouh. Morsi, the more conservative of the two, embraces a kind of back-to-basics program that, among other things, calls for limiting the presidency to Muslims and establishing a council of Muslim scholars to advise Parliament on Islamic law — the MB’s “old ‘Islam is the solution’ platform,” he declares. (The Times explains for its readers that the MB is known for “its moderate Islamist politics;” I guess Mori did not get the memo). Aboul Fotouh, whom the MB expelled two years ago for advocating political pluralism, offers a competing, more liberal Islamist vision. For example, he rejects  restrictions on political office for non-Muslims and the idea of the scholars’ council.

In opinion surveys, majorities of Egyptians consistently say that Sharia should be the only source of law in their country. Which version of Sharia prevails  will depend largely on the result of this conflict within the Islamist movement. Mori’s strategy is to appeal to more conservative elements, including the very conservative Salafis, while Aboul Fotouh seems to be staking his political future on more progressive Muslims, as well as the relatively small number of Egyptian secular liberals and Christians. MB and Salafi candidates received a combined two-thirds of the vote in a recent election for a new national assembly in Egypt, and one has to assume that Mori’s electoral strategy is the correct one. Time will tell.

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Augustine on The First Amendment, Freedom Riders and Passage of the Voting Rights Act

Jonathan C. Augustine (Louisiana Workforce Commission) has posted The Theology of Civil Disobedience: The First Amendment, Freedom Riders and Passage of the Voting Rights Act. The abstract follows.

In 2011, usage of the term “civil disobedience” resurged in the American lexicon for at least two reasons: (1) there was widespread civil protest in Egypt; and (2) America observed the fiftieth anniversary of the now-celebrated Freedom Rides. Both reasons demonstrate the continued relevance of the twentieth century American Civil Rights Movement (“the Movement”).

American media widely covered Egyptian citizens’ nonviolent acts of civil disobedience as Egyptians peacefully protested governmental corruption in demanding free and fair elections. Further, since 2011 marked the golden anniversary of the Freedom Rides in the United States, Americans were reminded of the nonviolent civil disobedience undertaken by an interdenominational movement of clergy and laity, undergirded by a Judeo-Christian suffering servant theology. Dissident adherents literally sacrificed themselves for the democratic cause in which they believed. Read more

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Larson on Indigenous Peoples’ Religious Rights Claims to Water Resources

Rhett Larson (Arizona State U. College of Law ) has posted Holy Water and Human Rights: Indigenous Peoples’ Religious Rights Claims to Water Resources. The abstract follows.

Water, perhaps more than any other natural resource, has profound religious meaning: in ceremonial uses, as a spiritual symbol, and as an object of worship. The scarcity of legal scholarship regarding the nexus between religious rights and water law is therefore curious. This paper examines that nexus and its implications in the context of indigenous peoples and international law. The international human right to water has developed as an implicit right necessary to securing jurisprudentially underdeveloped positive rights explicitly provided for under international human rights covenants, such as the right to a standard of living, but can also be built upon the foundation of broadly accepted, jurisprudentially mature civil rights, like the freedom of religion. Grounding the human right to water on such a foundation has important implications for indigenous peoples’ religious-rights-based claims to water resources. The stability of such claims depends upon effective frameworks within which international tribunals can adjudicate such claims. Ultimately, this Article evaluates the development of the international human right to water, discusses the nexus of that right with religious rights in the context of indigenous peoples’ water-resource claims, and proposes frameworks for evaluating those claims. The formulation and interpretation of water law requires greater consideration of the cultural meaning of water to promote cooperation within the watershed and to protect natural and cultural resources.

Posted on by Marc O. DeGirolami

Do Werewolves Violate the Establishment Clause?

It seems that The Military Religious Freedom Foundation has sent a cease and desist letter to the U.S. Secretary of the Navy demanding that Marine Fighter Attack Squadron 122 stop using the name “Crusaders.”  The Squadron had at alternative times in its history used the name “Werewolves” and “Crusaders.”  The MRFF claims that “Crusaders,” as well as the symbol of a red cross on a white shield used by the Squadron, violates the Establishment Clause.  “The most logical purpose of the Crusader moniker is to convey a message of approval of religion.”

I disagree; indeed, I find the position obtuse.  There may be many reasons to use the epithet “Crusader,” and in a military context “[t]he most logical purpose” is to associate oneself with the fearsome, bellicose spirit of the Crusaders — who, after all, were warriors.  So the letter seems to me to be wrong as a matter of constitutional law.

But set that aside.  Why is MRFF not upset about the name “Werewolves”?  Doesn’t “Werewolves” violate the Establishment Clause too?  Lycanthropy (humans turning into wolves), I believe, was popular with the Algonquian Native Americans (the Wendigo), and I also think that certain varieties of Wicca believe in something like lycanthropy.  Pagan belief in werewolves may have originated in Book 1 of Ovid’s Metamorphoses, where Ovid tells of King Lycaon, who is turned into a wolf by Zeus when he treats Zeus most inhospitably (“His arms descend, his shoulders sink away/ To multiply his legs for chase of prey./ He grows a wolf, his hoariness remains,/ and the same rage in other members reigns./ His eyes still sparkle in a narr’wer space:/ His jaws retain the grin, and violence of his face.”).  And, of course, werewolves are an integral part of that most pagan of holidays, Halloween.

At any rate, given these religious origins and the continuing association of werewolves with paganism, why should MRFF have a special problem with cultural symbols with Christian origins?  Let’s do this right, and get werewolves declared unconstitutional too.

Posted on by Mark Movsesian

Commonweal on the Bishops’ Religious Freedom Statement

Over the past week, I’ve written about criticism from the Catholic right of the U.S. Conference of Catholic Bishops’ recent statement on religious freedom. Of course, there’s also been criticism from the Catholic left. This week, Commonweal has a negative editorial about the bishops’ statement. More in sorrow than in anger, Commonweal maintains that the statement veers into political partisanship. The  bishops’ simplistic, one-sided language, the editorial complains, makes them sound more like Republican party operatives than pastors. Young people already are turning away from organized religion because it seems too political and conservative on social issues. Surely the bishops do not want to exacerbate that trend?

I wonder about this criticism. It’s true that the bishops’ statement highlights the Obama Administration’s contraceptives mandate. The mandate is the first on the list of threats to religious freedom the bishops identify, and surely served as the prime motivation for their statement. But the second item on the list is state anti-immigration laws, like the recent Alabama measure forbidding assistance to undocumented immigrants. In criticizing these laws, the bishops are hardly mouthing GOP talking points. Republican politicians often favor such measures, while the Obama Administration has filed a lawsuit challenging the Alabama law.

Even with respect to the contraceptives mandate, the bishops could be forgiven for saying that they didn’t start this fight. The bishops surely knew that objecting to the HHS mandate would have the effect of highlighting the Church’s position on contraception, and that this position is unpopular, particularly with Millennials. But what choice was there? It was the Obama Administration that issued the mandate during an election year. For that matter, it was the Obama Administration that argued this Term in Hosanna-Tabor that the religion clauses did not even apply to a church’s decision to fire a minister, a position that a unanimous Court characterized as “remarkable.” If it’s inappropriately partisan for religious organizations to respond when government takes steps like these, then religious organizations can never defend themselves in public debate. That may be a good thing from a spiritual point of view, but I don’t think it’s a result Commonweal would approve.

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Temperman on Religious Symbols in the Classroom

Jeroen Temperman (Erasmus University Rotterdam) has posted Religious Symbols in the Public School Classroom. The abstract follows.

This paper flags a couple of preliminary legal questions that are remarkably often ignored or trivialized by (international) courts. Underscoring the importance of identifying primary rights holders, genuine conflicting interests, and the obligations of duty bearers in symbol cases, this contribution illustrates that much depends on who can be identified as ‘symbol-displayer’ and who as ‘symbol-viewer’ and within which particular (public) setting. Focusing on public school education, the paper addresses such questions as under what circumstances may State neutrality be considered a legitimate ground for limiting fundamental rights. And who is actually supposed ‘to be neutral’ according to human rights law –– States, buildings, the ‘public square’, civil servants, teachers, students, and/or pupils? When does a symbol truly ‘interfere’ with the rights and freedoms of others or with public order? And who is to prove that? Also, what are the exact standards of proof in symbols cases?

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Blitt on the United Nations’ Resolutions on Combating Religious Intolerance

Robert C. Blitt (University of Tennessee College of Law) has posted Defamation of Religion: Rumors of its Death are Greatly Exaggerated. The abstract follows.

This Article explores the recent decisions by the United Nations (“UN”) Human Rights Council and General Assembly to adopt consensus resolutions aimed at “combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief.” These resolutions represent an effort to move past a decade’s worth of contentious roll call votes in favor of prohibiting defamation of religion within the international human rights framework. Although labeled “historic” resolutions, this Article argues that the UN’s new compromise approach endorsed in 2011 — motivated in part by the desire to end years of acrimonious debate over the acceptability of shielding religious beliefs from insult and criticism — is problematic because it risks being exploited to sanction the continued prohibition on defamation of religion and perpetuation of human rights violations on the ground.

After briefly considering the history of defamation of religion at the UN and the strategies employed by its proponents, this Article turns to an assessment of the UN Human Rights Council’s 2011 consensus Resolution 16/18. In light of the resolution’s objectives, this Article explores the viability of the international consensus around “combating intolerance” and tests to what extent, if any, the concept of defamation of religion may be waning in practice. To this end, this Article weighs, among other things, statements and resolutions of the Organization of Islamic Cooperation (“OIC”) pertaining to defamation — particularly those issued following the adoption of Resolution 16/18 — as well as its activities in other UN bodies. Read more

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Religion in U.S. Foreign Policy, pt. 2

When we look at the existing historiography of American contributions to human rights abroad, there tends to be a rather triumphalist streak to it. In some ways, there is a lot of truth to those claims. That the international human rights regime today bears a large American imprint stands in an uneasy irony with a long domestic history of aversion towards international commitments and entanglements. The saga of the Bricker amendment is the foremost example that comes to mind.

But perhaps it is not ironic at all. Even the late Louis Henkin who celebrates international human rights as projections of American constitutional rights around the world acknowledged that the U.S. tends to embrace human rights wholeheartedly if they are intended for export. In a previous post, I recounted the story of Woodrow Wilson and his efforts to promote religious freedom internationally through the League of Nations covenant. But my story/dissertation does not start with the League Covenant. It starts in 1898, when the U.S. emerged on the world stage as a recognized global power. By and large, the story resembles, in broad outline, Saba Mahmood’s articulation of the politics of religious freedom as one that is intimately tied to the history of European domination of the non-Western world. My story is only concerned with the United States, for now at least, partly because of autobiographical reasons. But in seeking to show this connection between freedom and power, of which the U.S. example seems almost perfect because of its exceptionalist tradition, I also want to look at this history and use it to move beyond debates created by this history. Even if the roots are poisoned, possibilities of redemption remain nevertheless. At least this is my hope.

What I found interesting during the course of my research is a peculiar observation. Similar to the domestic story of American religious freedom which is bigger and broader than the corpus of Religion Clause jurisprudence (a glaring contemporary example is that there is no case, at least on the Supreme Court level which tracks the rise of Islamophobia in the post-9/11 U.S.; the anti-Sharia state constitutional amendments which have been proposed since then are the best indicators, it seems but aside from the one in Oklahoma, they have never been litigated in courts), the external story of American religious freedom insofar as domestic ideas of religious freedom were projected in laws abroad does not also map neatly into any of the existing trends found in Supreme Court cases involving religious liberty, save perhaps for Reynolds. But while language found in existing cases shape, and therefore, also constrain, the way in which the domestic story unfolds, how it is discussed and debated, no such thing occurs in the foreign affairs realm. This question is at the heart of a side project I am currently working on, and which I’ll elaborate on more in a future post, but the one thing I wanted to point out is the disconnect between what happens inside and outside and more importantly, what that disconnect entails.

Posted on by Marc O. DeGirolami

The HHS Mandate at Yale Law School

I was pleased to participate in a panel at Yale Law School yesterday sponsored by the Catholic Law Students’ Association and the St. Thomas More Chapel dealing with the HHS Mandate.  I learned a great deal from my co-panelists, Matthew Boudway of Commonweal and Ashley McGuire of the Becket Fund.  I thought I could make myself most useful by focusing on the federal legal framework within which the mandate is likely to be assessed, and my comments drew from many of the posts and discussions about it here at CLR Forum (with maybe a little more emphasis on the individual assessment exception to Smith than some might think warranted).  And I was pleased at the number of interested folks who attended and the thoughtfulness of the questions.

Thanks to Christian Burset for putting the event together.

Posted on by Marc O. DeGirolami

Kimmage Reviews Preston’s “Sword of the Spirit, Shield of the Faith”

Here is an interesting and generally very favorable review by Michael Kimmage (History, CUA) of Andrew Preston recent book, Sword of the Spirit, Shield of the Faith: Religion in American War and Diplomacy (Knopf 2012), which was noted by our guest, Anna Su, here.  Perhaps Anna will have some thoughts about the review.  A bit from Kimmage:

Preston’s new book on religion and foreign policy . . . is about America and Americans. In over six hundred pages, Preston charts the scope and the centrality of religion in American politics, from the seventeenth century to the present. This book merges American history with the history of Christianity, and in doing so it qualifies the story of Christian empire. Unlike the Christian empires of the past, America has never had an established church. Nor did the American Revolution result in empire. The animating spirit behind much of Preston’s narrative is Christian republicanism, and no Christian republic has ever had the territory or the influence or the power that the United States would come to possess.           

Preston’s argument is worth outlining in detail. It has the shape of a double helix. One strand entails the melding of Christian sentiment with state power, through diplomatic maneuvers and the waging of war. This is the sword of the spirit, cherished by the Puritans and by George W. Bush alike. The other strand inverts the ideal of the church militant, appealing instead to a Christian hunger for international peace, for the beating of swords into ploughshares, for a fraternity of nations liberated from war. This is the shield of faith. Preston weaves these metaphors, both taken from Paul’s letter to the Ephesians, into a sweeping historical analysis.