Egypt’s Presidential Election Commission today disqualified the Muslim Brotherhood’s candidate, Khairat al-Shater, from running for President in an election scheduled for next month. Nine other candidates, including Hosni Mubarak’s intelligence chief, Omar Suleiman, were also disqualified. The commission did not give reasons for the disqualification, but al-Shater, whose campaign immediately announced that he will appeal the commission’s decision, does have a previous criminal conviction. Earlier this week, CLR Forum discussed al-Shater’s stated desire to restore Sharia in Egypt.
The USCCB Statement on Religious Freedom and Widespread Misunderstanding About the State of Free Exercise
Unlike some, I find much to praise in the recent statement by the USCCB Ad Hoc Committee for Religious Liberty, which Mark noted here. This being a legal blog, however, I want to respond specifically to a claim being advanced on some blogs about the state of constitutional free exercise in this country. It’s one that I’ve encountered many times before, but the response to it needs much more ventilation, as the media in various sorts of fora are just not getting it. The misunderstanding leads commentators, even law professors, to make grossly incomplete, and unintentionally misleading, statements about whether the Free Exercise Clause may be invoked for infringements of religious liberty. I’ll focus some of these comments on the HHS mandate, though I do not think the point is limited to that context. The bottom line, in my view, is that it is very unclear whether the Free Exercise Clause is a viable legal possibility. If I were a betting man in the mandate context, I’d put the odds somewhere around 60-40 for upholding the mandate.
Shemtob on the Religious Composition of the Supreme Court
Zachary Baron Shemtob (Central Connecticut State University) has posted The Catholic and Jewish Court: Explaining the Absence of Protestants on the Nation’s Highest Judicial Body. The abstract follows.
Following the 2006 retirement of Sandra Day O’Connor and the confirmation of Samuel Alito to succeed her, Roman Catholics formed a majority on the United States Supreme Court for the first time in this institution’s 210-year history. This Catholic majority was further strengthened by the appointment of Sonia Sotomayor in 2009. By the time of Elena Kagan’s first case in October of 2010, not a single Protestant sat on the nation’s highest judicial body.
By way of comparison, in 1960 the Court consisted of seven Protestants, one Catholic and one Jew; in 1985, eight Protestants and one Catholic sat on the Court. This phenomenon is further reflected in judicial appointments. Since 1985, only one Protestant has been appointed, Justice David Souter, compared to seven Catholics and three Jews. The prima facie reason for this transformation is simple: President Reagan began the Protestant erosion by appointing two Catholics; George H.W. Bush followed by appointing a Catholic; and Bill Clinton, George W. Bush, and Barack Obama chose only Jewish and Catholic nominees. The deeper reasons, which are considerably more complex, are the focus of this article.
Philpott, “Just and Unjust Peace”
Next month, Oxford University Press will publish Just and Unjust Peace: An Ethic of Political Reconciliation (OUP May 2012) by Daniel Philpott (Notre Dame). The publisher’s description follows.
In the wake of massive injustice, how can justice be achieved and peace restored? Is it possible to find a universal standard that will work for people of diverse and often conflicting religious, cultural, and philosophical backgrounds?
In Just and Unjust Peace, Daniel Philpott offers an innovative and hopeful response to these questions. He challenges the approach to peace-building that dominates the United Nations, western governments, and the human rights community. While he shares their commitments to human rights and democracy, Philpott argues that these values alone cannot redress the wounds caused by war, genocide, and dictatorship. Both justice and the effective restoration of political order call for a more holistic, restorative approach. Philpott answers that call by proposing a form of political reconciliation that is deeply rooted in three religious traditions–Christianity, Islam, and Judaism–as well as the restorative justice movement. These traditions offer the fullest expressions of the core concepts of justice, mercy, and peace. By adapting these ancient concepts to modern constitutional democracy and international norms, Philpott crafts an ethic that has widespread appeal and offers real hope for the restoration of justice in fractured communities. From the roots of these traditions, Philpott develops six practices–building just institutions and relations between states, acknowledgment, reparations, restorative punishment, apology and, most important, forgiveness–which he then applies to real cases, identifying how each practice redresses a unique set of wounds. Read more
Me Next Week
Just a little note on a couple of talks I am giving next week, in case CLR Forum readers have a chance to stop by and say hello.
On Wednesday, April 18, I’ll be participating in a panel at Yale Law School run by the Yale Catholic Law Students’ Association dealing with the HHS Mandate and Religious Liberty. The discussion begins at 6:00. More details about the event here.
On Friday, April 20, I’ll be at the University of St. Thomas under the auspices of the Terence J. Murphy Institute’s Hot Topics: Cool Talk program run by the gracious Lisa Schiltz. The Honorable Richard Sullivan of the U.S. District Court for the Southern District of New York will be joining me. I’ll be talking about the state of punishment theory and will discuss (a little bit) some of the insights of Sir James Fitzjames Stephen and Thomas Aquinas with respect to the justification of punishment (I hope to give a cool talk, but the odds are not so good). Details here.
Catholic Bishops Issue Report on Threats to Religious Freedom
The U.S. Conference of Catholic Bishops today issued a report, Our First, Most Cherished Liberty: A Statement on Religious Liberty, on threats to religious freedom in America and abroad. The report lists several recent actions by the federal and state governments that endanger religious freedom — including the HHS contraception mandate, state laws that forbid assistance to illegal aliens, and moves by public universities to deny recognition to evangelical groups on campus — and discusses the persecution suffered by religious minorities, often Christians, in other parts of the world. The report calls on clergy and lay Catholics, as well as adherents of other faiths, “to impress upon our elected representatives the importance of continued protection of religious liberty in a free society.” In particular, the report proposes that Catholic bishops in America organize a “fortnight for freedom” this summer, a fourteen-day “period of prayer, study, catechesis, and public action [to] emphasize both our Christian and American heritage of liberty.”
Oakley on the Reshaping of Ancient Political Inheritance
This month, Yale University Press publishes The Mortgage of the Past: Reshaping the Ancient Political Inheritance (1o50–1300), by Francis Oakley, President Emeritus of Williams College. The volume is part of a three part series on the emergence of a secular from a religious socio-political worldview during the Middle Ages. In this book, Oakley explores the confluence of secular and religious forces in the Middle Ages that shaped the transformation from a political conception of (1) a divine procession from king to heir to (2) a more secular understanding of the procession from ruler to ruler.
Please follow the jump for the publisher’s description. Read more
Ashe on Women, Religion, & American Law
Marie Ashe, Professor of Law at Suffolk University Law School, will publish Women’s Wrongs, Religions’ Rights: Women, Free Exercise, and Establishment in American Law. Please see the abstract below:
This article provides an historical examination of American Constitutional law concerning religion as it has evolved through three periods: the Mormon period of the late nineteenth century; the religious pluralism period of post-WW2 decades; and the multiculturalism period that began around 1990 and that remains underway. It examines Supreme Court interpretations of First Amendment provisions pertaining to religion, and it contextualizes those interpretations to explore their implications for women’s liberty and equality at each of the three periods. Its argument is that Constitutional doctrine relating to religion – through its multiple doctrinal reversals – has consistently entailed and depended upon negative constructions of women, sacrificing women’s liberty and equality interests in order to prefer and to cultivate the liberty and equality interests of churches.
Sandberg on the Study of Law and Religion
Russell Sandberg (University of Wales System – Cardiff Law School) has posted The Sociology of the Law and Religion. The abstract follows.
This is the English language version of a piece which is published in Italian in Dizionario del sapere storico-religioso del Novecento, edited by Alberto Melloni, by Il Mulino (Bologna, 2010). It provides a definition of ‘the sociology of the law on religion’. This can be understood as a discipline which studies the interaction between law, religion and society. The paper assesses the extent to which this discipline exists. It looks at law and religion scholars such as Doe and Bradney who have made reference to sociology and sociologists of religion such as Davie and Beckford who have made reference to law. The author has further developed his analysis of the interaction between law and religion and the sociology of religion in his doctoral thesis and will return to the subject in a forthcoming monograph for Cambridge University Press.
Religion in U.S. Foreign Policy, pt. I
As I’ve described briefly in my previous post, the project of historicizing religious freedom is necessarily allied with normative goals and carries normative implications. But before I go to that, I’d like to give a preview of one case study I look at in the dissertation. My project takes a closer look at the American official effort to promote religious freedom as law abroad, an idea historically grounded on the Protestant notion of separation of church and state. A recent book by historian Andrew Preston chronicles the role of religion in U.S. foreign policy from the Founding period to the Obama administration, and in a short companion piece at Foreign Affairs, he argues that precisely because of this history, Obama should take advantage of the fact that the U.S. can also speak in the language of faith when it deals with other countries. I have certain reservations with this general claim but more on that next time. What I do agree with Preston wholeheartedly is that religion played a significant role in U.S. foreign relations. Iraq and Bush were simply part of that ongoing American tradition.
For example, many people know that Woodrow Wilson was a thoroughly devout Presbyterian and that his religious thinking permeated his policies. But what many people don’t know is that he in fact tried to crystallize his concern for religious freedom in the League of Nations Covenant, which met strong opposition from the other Great Powers involved in the negotiations. One of the reasons that France and Britain gave was that the main offenders Russia and Germany were not going to be part of the League anyway so it did not make sense to write it into the Covenant. But while Wilson, for various other reasons, failed to incorporate it in the general Covenant, he succeeded in including it in the several Minority Treaties signed between the Great Powers and the newly-independent countries of Poland, Romania, Hungary and others in Eastern and Central Europe. Articles 2-8 of the Minority treaty with Poland (which served as a template for the others) was in fact called the “Wilsonian core.” Moreover, he was also the one who included it as a guarantee for the inhabitants of Mandate territories.
Now, a question would be why was Wilson interested in doing that? What was in it for the United States? In the same way we ask why is this American tradition present all the way up to Obama? Preston claims that one reason is an exceptionalist conceit of the U.S. as God’s chosen nation. While that is certainly true, there were, as expected, political uses, at least insofar as lawmaking abroad was involved. But it was one that can’t also be thoroughly divorced from the personality involved or from the prevailing attitudes of the time. Woodrow Wilson, lawyer, political scientist, and the last Ph.D. degree holder to become President of this country, was a visionary when it came to foreign relations in many ways, and the League of Nations, though a catastrophic disaster as it might have been, was one big proof of that. But he was also coming from an imperial milieu. Despite the official promise of independence by the U.S. to the Philippines at that time in the form of the Jones Act of 1916 (the first such act by a colonial power in history, by the way), the U.S. was an overtly imperial power under Wilson. Together, the promise of spreading religious freedom elsewhere was in certain ways an act of humanitarian imperialism, probably not very much unlike the underlying ideals of the Covenant itself. But why law? For the longest period before the American victory over Spain in 1898, the U.S. government has been making interventions on behalf of oppressed religious minorities in the Ottoman Empire, but without the lawmaking part. What changed then?
That, and more stories for the next post.