ECtHR Decides Church Autonomy Case

2012 is turning out to be a big year for church autonomy rulings across the world. The rulings don’t all cut the same way. In January, the US Supreme Court handed down a pro-autonomy decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,  unanimously endorsing a constitutional “ministerial exception” to the federal employment anti-discrimination laws. In February, a section of the European Court of Human Rights handed down an anti-autonomy decision, Sindacatul “Pastoral cel Bun” v. Romania, holding that Orthodox priests could form a union over their church’s objections. Now, a section of the ECtHR has handed down a pro-autonomy decision in a case involving the employment of a laicized Catholic priest.

In Spain, public schools offer classes in Catholicism, taught by instructors approved by the local bishop. In the most recent case, a local bishop had withdrawn approval of one such instructor, a laicized priest who had taken a public stand against mandatory priestly celibacy. When the school dismissed the instructor, he brought suit under the European Convention, arguing that the dismissal violated his rights to privacy, family life, and expression. Somewhat surprisingly, perhaps, a section of the ECtHR ruled against him. In withdrawing approval, the section stated, the bishop had acted “in accordance with the principle of religious autonomy;” the instructor had been dismissed for purely religious reasons, and it would be inappropriate for a secular court to intrude.

It will be interesting to see whether the Grand Chamber reviews this judgment, or the judgment in the Romanian case, which Romania has already referred. The case is Fernandez Martinez v. Spain, available on the ECtHR’s website here (in French). For an interesting analysis of how this case relates to Hosanna-Tabor, check out Stijn Smet’s post on Strasbourg Observers.

Greetings from Chicago

I have the pleasure of being hosted this week at the DePaul College of Law by the Center for Jewish Law and Judaic Studies, which is holding a two-day Jewish Law Symposium.  The format for the symposium has been fantastic.  The first day was dedicated to CLE presentations on contemporary issues in Jewish law (I presented on practical issues that arise when trying to enforce rabbinical court judgments in U.S. courts).  The second day will include works in progress by some fantastic Jewish Law scholars, including Chaim Saiman (Villanova), who is presenting his paper “Talmudic Analysis and Ethical Thought,” David Flatto (Penn State), who is presenting his paper “Justice Retold,” and Roberta Kwall (DePaul), who is presenting her paper “The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study,” with all papers receiving comments from Keith Sharfman (St. Johns).  I’ve got to say the combination of both discussions of practical Jewish law issues and scholarly presentations of Jewish Law papers has been a great format.  Many thanks to the Center and to its co-directors Roberta Kwall and  Steven Resnicoff for putting together such a wonderful program.

“Religious Arbitration and the New Multiculturalism” on The Legal Workshop

The Legal Workshop – one of my favorite websites – posted the short essay version of my recent article “Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders.”   I have to say that I really enjoyed the process of distilling the core points of the full version of the article (available here) into the shorter format, which is what I think makes The Legal Workshop such a useful venue for reading up on recent scholarship.

The Cambridge History of Religions in America

Here is an absolutely tremendous 3-volume resource that should be of interest to all students of American history: The Cambridge History of Religions in America, to be published by Cambridge University Press in July and edited by Stephen J. Stein (Indiana Bloomington).  The publisher’s description follows.

The three volumes of The Cambridge History of Religions in America trace the historical development of religious traditions in America, following both their transplantation from other parts of the world and the inauguration of new religious movements on the continent of North America. This story involves complex relationships among these religious communities as well as the growth of distinctive theological ideas and religious practices. The net result of this historical development in North America is a rich religious culture that includes representatives of most of the world’s religions. Volume 1 extends chronologically from prehistoric times until 1790, a date linked to the formation of the United States as a nation. The first volume provides background information on representative Native American traditions as well as on religions imported from Europe and Africa. Diverse religious traditions in the areas of European settlement, both Christian and non-Christian, became more numerous and more complex with the passage of time and with the accelerating present. Tension and conflict were also evident in this colonial period among religious groups, triggered sometimes by philosophical and social differences, other times by distinctive religious beliefs and practices. The complex world of the eighteenth century, including international tensions and conflicts, was a shaping force on religious communities in North America, including those on the continent both north and south of what became the United States. Volume 2 focuses on the time period from 1790 until 1945, a date that marks the end of the Second World War. One result of the religious freedom mandated by the Constitution was the dramatic expansion of the religious diversity in the new nation, and with it controversy and conflict over theological and social issues increased among denominations. Religion, for example, played a role in the Civil War. The closing decades of the nineteenth century witnessed the rising prominence of Roman Catholicism and Judaism in the United States as well as the growth of a variety of new religious movements, some that were products of the national situation and others that were imported from distant parts of the globe. Modern science and philosophy challenged many traditional religious assumptions and beliefs during this century and a half, leading to a vigorous debate and considerable controversy. By the middle of the twentieth century, religion on the North American continent was patterned quite differently in each of the three nations – the United States, Canada, and Mexico. Volume 3 examines the religious situation in the United States from the end of the Second World War to the second decade of the twenty-first century, contextualized in the larger North American continental context. Among the forces shaping the national religious situation were suburbanization and secularization. Conflicts over race, gender, sex, and civil rights were widespread among religious communities. During these decades, religious organizations in the United States formulated policies and practices in response to such international issues as the relationship with the state of Israel, the controversy surrounding Islam in the Middle East, and the expanding presence of Asian religious traditions in North America, most notably Buddhism and Hinduism. Religious controversy also accompanied the rise of diverse new religious movements often dismissed as “cults,” the growth of mega-churches and their influence via modern technologies, and the emergence of a series of ethical disputes involving gay marriage and abortion. By the turn of the twenty-first century, the national and international religious contexts were often indistinguishable.

Bebbington, “Victorian Religious Revivals”

Another terrific looking book about religious history in Great Britain which also delves into some sociology of the religious “awakening” —  this one by David Bebbington (Stirling), Victorian Religious Revivals: Culture and Piety in Local and Global Contexts (OUP 2012).  An especially interesting feature of this book looks to be the study of the structure or organization of the revival, which is perhaps in some cases less spontaneous than one might believe.  The publisher’s description follows.

Revivals are outbursts of religious enthusiasm in which there are numerous conversions. In this book the phenomenon of revival is set in its broad historical and historiographical context. David Bebbington provides detailed case-studies of awakenings that took place between 1841 and 1880 in Britain, North America and Australia, showing that the distinctive features of particular revivals were the result less of national differences than of denominational variations. These revivals occurred in many places across the globe, but revealed the shared characteristics of evangelical Protestantism. Bebbington explores the preconditions of revival, giving attention to the cultural setting of each episode as well as the form of piety displayed by the participants.

No single cause can be assigned to the awakenings, but one of the chief factors behind them was occupational structure and striking instances of death were often a precipitant. Ideas were far more involved in these events than historians have normally supposed, so that the case-studies demonstrate some of the main patterns in religious thought at a popular level during the Victorian period. Laymen and women played a disproportionate part in their promotion and converts were usually drawn in large numbers from the young. There was a trend over time away from traditional spontaneity towards more organised methods sometimes entailing interdenominational co-operation.

Worden, “God’s Instruments”

Very interesting book about the religious dimensions of Puritan politics in 17th century England by Blair Worden (Royal Holloway College London), God’s Instruments: Political Conduct in the England of Oliver Cromwell (OUP 2012).  The publisher’s description follows.

The Puritan Revolution escaped the control of its creators. The parliamentarians who went to war with Charles I in 1642 did not want or expect the fundamental changes that would follow seven years later: the trial and execution of the king, the abolition of the House of Lords, and the creation of the only republic in English history. There were startling and unexpected developments, too, in religion and ideas: the spread of unorthodox doctrines; the attainment of a wide measure of liberty of conscience; new thinking about the moral and intellectual bases of politics and society. God’s Instruments centres on the principal instrument of radical change, Oliver Cromwell, and on the unfamiliar landscape of the decade he dominated, from the abolition of the monarchy in 1649 to the return of the Stuart dynasty in 1660.

Its theme is the relationship between the beliefs or convictions of politicians and their decisions and actions. Blair Worden explores the biblical dimension of Puritan politics; the ways that a belief in the workings of divine providence affected political conduct; Cromwell’s commitment to liberty of conscience and his search for godly reformation through educational reform; the constitutional premises of his rule and those of his opponents in the struggle for supremacy between parliamentary and military rule; the relationship between conceptions of civil and religious liberty. The conflicts Worden reconstructs are placed in the perspective of long-term developments, of which historians have lost sight, in ideas about parliament and about freedom. The final chapters turn to the guiding convictions of two writers at the heart of politics, John Milton and the royalist Edward Hyde, the future Earl of Clarendon. Material from previously published essays, much of it expanded and extensively revised, comes together with freshly written chapters.  

Israel to Recognize and Fund Non-Orthodox Rabbis; Religious Services Minister Threatens to Resign

For the first time, Haaretz reports, Israel will recognize leaders of Conservative and Reform communities as “rabbis” and fund their salaries. Up till now, the state has recognized and funded only Orthodox rabbis. Unlike Orthodox rabbis, non-Orthodox rabbis will not have authority over questions of Jewish law, or Halakhah, and will receive funding from the Culture and Sports Ministry rather than the Religious Services Ministry. Nonetheless, Conservative and Reform leaders have welcomed the new policy, arguing that it will help equalize resources among different streams of Judaism in Israel and strengthen ties with the Jewish diaspora. Orthodox leaders are not so enthusiastic. For example, Religious Services Minster Yaakov Margi reacted to the announcement by threatening to resign if the government ever asked him to pay the salaries of non-Orthodox rabbis.

Eighth Circuit Rules Plaintiffs Have Standing to Challenge Fargo’s Ten Commandments Monument

An interesting decision by the Eighth Circuit Friday suggests a way for plaintiffs who object to public religious displays to get more than one bite at the apple. In 2002, a group called the Red River Freethinkers sued the city of Fargo, North Dakota, alleging that a Ten Commandments monument on city property violated the Establishment Clause. A federal district court applied the endorsement test and ruled against the group in 2005, concluding that a reasonable observer in the circumstances would not perceive an official endorsement of religion. The Freethinkers did not appeal that ruling, but instead petitioned the city to accept a companion monument declaring that the United States Government was “not, in any sense, founded on the Christian religion.” Rather than display both monuments, the city initially decided to remove the Ten Commandments display altogether. That decision caused a public outcry, however, and the city reversed itself. The city decided to retain the Ten Commandments monument and indefinitely table the Freethinkers’ petition for the companion display.

At that point, the Freethinkers sued again, arguing that the city’s decision to retain the Ten Commandments but reject their secularist monument failed the endorsement test. The city objected that the Freethinkers lacked standing to bring this second suit, but on Friday the Eighth Circuit disagreed. The Freethinkers had alleged an actual, concrete injury — the Ten Commandments monument had made them feel alienated and unwelcome in Fargo, they claimed — which could be remedied by the monument’s removal. Moreover, res judicata did not bar the suit, because the Freethinkers had alleged a new injury resulting, not from the city’s initial decision to erect the Ten Commandments monument, but from the city’s decision to retain the monument without placing the Freethinkers’ monument alongside it — a decision which the city took after the initial lawsuit had ended. In a separate opinion, Judge Shepherd argued that, although the Freethinkers did have standing, they were unlikely to prevail on the merits. He would have dismissed the case.

I’m not sure whether the Freethinkers planned it this way, but their strategy of offering the city a secularist memorial has cleverly kept the controversy alive. They can effectively retry the constitutionality of the Ten Commandments monument, get media attention, and impose further litigation costs on the city. (It’s already been 10 years!). Could they do this repeatedly? Assuming they lose this round on the merits, could the Freethinkers wait a while, offer a different secularist monument, and start all over again? I’m not a civ pro maven, but I doubt it. Anyhow, it’s worked for them so far. The case is Red River Freethinkers v. City of Fargo, 2012 WL 1887061 (8th Cir., May 25, 2012).

Waldron on Natural Law

Jeremy Waldron  (NYU School of Law) has posted What is Natural Law Like? The abstract follows.

“The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else — like positive law, a set of customs, natural morality, natural ethics, a set of natural inclinations, the truth of certain prudential calculations, a widespread but perhaps false belief in some transcendent law, the voice of God, or just a natural disposition on the part of some pompous people to make sonorous objective-sounding pronouncements? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability form objective from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world.

Redding on What American Legal Theory Might Learn from Islamic Law

Jeff Redding (Saint Louis U. School of Law) has posted What American Legal Theory Might Learn from Islamic Law: Some Lessons About ‘The Rule of Law’ from ‘Shari‘a Court’ Practice in India. The abstract follows.

In 2010, voters in the state of Oklahoma passed a constitutional amendment that prohibits the Oklahoma courts from considering “Sharia Law.” A great deal of the support for this amendment and similar (ongoing) legal initiatives appears to be generated by a deep-seated paranoia about Muslims and Islamic law that has taken root in many parts of the post-9/11 United States. This Article contends that the passage of this Oklahoma constitutional amendment should not have been surprising given that it is not only right-wing partisans who have felt the need to strictly demarcate and police the boundaries of the American legal system, but also liberal partisans too. Indeed, this Article argues that certain modes of American liberal legal thought actually facilitate the anti-shari‘a mania currently sweeping the United States. As a result, an adequate response to this mania cannot simply rely on traditional, American-style, liberal legal theorizing. Indeed, as this Article argues and explains, some extant American liberal understandings of ‘law,’ ‘legal systems,’ and ‘the rule of law’ are eminently inappropriate resources in the struggle against American forms of reactionary parochialism because these liberal understandings are themselves deeply compromised by their own forms of parochialism.

This state of theoretical affairs is unfortunate. As a result, in the course of demonstrating some of the theoretical inadequacies of American liberal legalism, this Article also commences an alternative theorization about ‘law,’ ‘legal systems’ and, more particularly, ‘the rule of law.’ This theorization relies heavily on what can be learned about ‘the rule of law’ — including whatever exists of it in the United States — from the experiences of an Indian Muslim woman, ‘Ayesha,’ who recently used a non-state ‘shari‘a court’ (specifically, a ‘dar ul qaza’) in Delhi to exercise her Indian Islamic divorce rights. I recently interviewed Ayesha at length as part of a larger project on liberalism and Islamophobia.