Litigating Religion Redux

I’ve been editing the latest draft of my forthcoming article “Litigating Religion” in anticipation of presenting the piece at this year’s Stanford/Yale/Harvard Junior Faculty Forum (I’ve also been pleased to have the piece discussed previously on the CLR Forum here and here).  The primary thesis of the article is that the Establishment Clause should not be interpreted to prohibit courts from adjudicating religious questions; instead, it should be interpreted to prohibit courts from adjudicating claims properly within the province of religious institutions.  Put differently, courts should resolve religious disputes where no other religious institution is capable of doing so.

One section of the article is dedicated to discussing court cases that raise religious questions, but where there is no religious institution that has an interest and the authority to resolve the dispute.  Given that I’m always looking for more examples, I was particularly pleased to see a post from Eugene Volokh about a 2007 case (only recently posted on Westlaw) that fits the bill where a court refused to enforce an arbitration provision that called for the appointment of “Three Orthodox Rabbis” as arbitrators.    The court refused to enforce the provision on the grounds that “[t]he Establishment Clause of the First Amendment prohibits a civil court from resolving issues concerning religious doctrine and practice.”  Thus determining whether an arbitrator is Orthodox – so as to satisfy the arbitration agreement – would run afoul of the First Amendment.   Instead, the court severed this provision from the arbitration agreement and authorized each party to select an arbitrator and have those two arbitrators select a third.  As the court noted, “[a]lthough the provision requiring orthodox arbitrators is unenforceable, the parties are free to select arbitrators, who in their own judgment, meet the religious requirement.”

But is this the preferred outcome?

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Clark, “Abraham’s Children”

The s0-called Abrahamic religions, Judaism, Christianity, and Islam, all claim to be the People of God. In fact, each claims to be the  People of God, to the exclusion of the others. One possible implication is that rival claimants are imposters who must be punished, and at times each Abrahamic religion has behaved very intolerantly towards adherents of the other faiths. That is not the only possible implication, however. Rather than anticipate the Last Judgment, one might leave punishment to God and show charity to the members of the other covenants, and at times each Abrahamic religion has been tolerant of its rivals. A new book by Calvin College Professor Kelly James Clark, Abraham’s Children: Liberty and Tolerance in an Age of Religious Conflict (Yale 2012), emphasizes this second, more hopeful response. The publisher’s description follows:

Scarcely any country in today’s world can claim to be free of intolerance. Israel and Palestine, Northern Ireland, Sudan, the Balkans, Pakistan, India, Sri Lanka, and the Caucasus are just some of the areas of intractable conflict apparently inspired or exacerbated by religious differences. Can devoted Jews, Christians, or Muslims remain true to their own fundamental beliefs and practices, yet also find paths toward liberty, tolerance, and respect for those of other faiths?

In this vitally important book, fifteen influential practitioners of the Abrahamic religions address religious liberty and tolerance from the perspectives of their own faith traditions. Former president Jimmy Carter, Rabbi Arik Ascherman, Indonesia’s first democratically elected president, Abdurrahman Wahid, and the other writers draw on their personal experiences and on the sacred writings that are central in their own religious lives. Rather than relying on “pure reason,” as secularists might prefer, the contributors celebrate religious traditions and find within them a way toward mutual peace, uncompromised liberty, and principled tolerance. Offering a counterbalance to incendiary religious leaders who cite Holy Writ to justify intolerance and violence, the contributors reveal how tolerance and respect for believers in other faiths stand at the core of the Abrahamic traditions.

The President, Faith, and Same-Sex Marriage

An interesting point that may be overlooked in President Obama’s announcement yesterday that he supports same-sex marriage. According to the President, his faith as a Christian helped lead him to this position. Referring to his wife, First Lady Michelle Obama, he said:

This is something that, you know, we’ve talked about over the years and she, you know, she feels the same way, she feels the same way that I do. And that is that, in the end the values that I care most deeply about and she cares most deeply about is how we treat other people and, I, you know, we are both practicing Christians and obviously this position may be considered to put us at odds with the views of others.

But, you know, when we think about our faith, the thing at root that we think about is, not only Christ sacrificing himself on our behalf, but it’s also the Golden Rule, you know, treat others the way you would want to be treated. And I think that’s what we try to impart to our kids and that’s what motivates me as president and I figure the most consistent I can be in being true to those precepts, the better I’ll be as a as a dad and a husband and hopefully the better I’ll be as president.

Of course, as the President suggested, not everyone agrees with his assessment of what Christianity requires in this respect — the US Conference of Catholic Bishops, for example. Still, in stating that his religious faith helped determine his position, the President is well within the American tradition of political leaders who explain their policies in religious terms.

Berger on Religious Tourism

This is a very interesting post by Peter Berger about the phenomenon of “religious tourism”: a kind of serial testing or trying out of various religions to see whether one finds a good match.  Here is a bit:

I have long ago come to the conclusion that the empirical evidence has falsified so-called secularization theory—the notion that modernity necessarily brings about a decline in religion. Secularization theory should be replaced by a theory of plurality—a situation in which many religions co-exist and interact with each other. Readers of this blog have not promised to become familiar with everything I have ever written about religion (which would fall under the constitutional prohibition of cruel and unusual punishment). All the same, I cannot here develop the proposed pluralization theory. Except to simply state its two principal components, one on the level of religious institutions, the other on the level of individual consciousness. On the level of institutions:  In the pluralistic situation every religious institution, wh[ether] it likes this or not, becomes a voluntary association. Max Weber, one of the fathers of the sociology of religion, distinguished between two institutional forms of religion—the “church”, into which one is born, and the “sect”, which one joins as an adult. The historian Richard Niebuhr suggested that American history has created (presumably inadvertently) a third form of religious institution—the “denomination”, which in many ways looks like a “church”, but which one nevertheless freely joins and belongs to, and which is in competition with other religious bodies. On the level of consciousness, religion loses its taken-for-granted quality, instead becomes a matter of individual decision. The peculiarly American term “religious preference” nicely catches both levels. Put differently, the challenge of secularity, where it exists (it does in some places, notably in Europe), is that there is an absence of gods; the challenge of plurality is that there are too many gods.

When there is a combination of religious plurality with a political system which guarantees freedom of religion, what comes about is, precisely, Niebuhr’s denominationalism. For well-known historical reasons, America has been in the vanguard of such a development. Its emergence in many parts of the world today has usually little to do with American influences, but is the result of the above-mentioned combination of a social and a political fact.