Posted on by Marc O. DeGirolami

Barnett & Stein (eds.), “Sacred Aid: Faith and Humanitarianism”

Here’s an interesting collection of essays about the increasing religious inspiration and commitment of contemporary human rights organizations, Sacred Aid: Faith and Humanitarianism (OUP 2012), edited by Michael Barnett (GW) and Janice Gross Stein (Toronto).  The publisher’s description follows.

The global humanitarian movement, which originated within Western religious organizations in the early nineteenth century, has been one of the most important forces in world politics in advancing both human rights and human welfare. While the religious groups that founded the movement originally focused on conversion, in time more secular concerns came to dominate. By the end of the nineteenth century, increasingly professionalized yet nominally religious organization shifted from reliance on the good book to the public health manual. Over the course of the twentieth century, the secularization of humanitarianism only increased, and by the 1970s the movement’s religious inspiration, generally speaking, was marginal to its agenda. However, beginning in the 1980s, religiously inspired humanitarian movements experienced a major revival, and today they are virtual equals of their secular brethren.

From church-sponsored AIDS prevention campaigns in Africa to Muslim charity efforts in flood-stricken Pakistan to Hindu charities in India, religious groups have altered the character of the global humanitarian movement. Moreover, even secular groups now gesture toward religious inspiration in their work. Clearly, the broad, inexorable march toward secularism predicted by so many Westerners has halted, which is especially intriguing with regard to humanitarianism. Not only was it a highly secularized movement just forty years ago, but its principles were based on those we associate with “rational” modernity: cosmopolitan one-worldism and material (as opposed to spiritual) progress. How and why did this happen, and what does it mean for humanitarianism writ large? That is the question that the eminent scholars Michael Barnett and Janice Stein pose in Sacred Aid, and for answers they have gathered chapters from leading scholars that focus on the relationship between secularism and religion in contemporary humanitarianism throughout the developing world. Collectively, the chapters in this volume comprise an original and authoritative account of religion has reshaped the global humanitarian movement in recent times.

Posted on by Marc O. DeGirolami

A Poor Editorial

This is a silly and uninformed editorial.  There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it.  But this editorial is about the legal challenge to the mandate.  And it calls that challenge “built on air.”  Actually, it is built on the Constitution and a federal statute, and we’ll soon see whether those foundations remain solid enough to support it.

The editorial does mention the Constitution and the federal statute.  But what it says misrepresents both.  It also fails to mention that the original mandate — and not the putative change in plans alluded to by the President in February — is at present the law.  The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience.  And it makes the following colossally stupid statement about RFRA: “In 1993, Congress required government actions that “substantially burden a person’s exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy.”  Can anybody figure out how the second sentence follows from the first?  Did anyone at the Times think to check with a lawyer before writing this?  How about a law student?

There are arguments to be made in defense of the mandate.  Surely the government will make them in court.  But this editorial neither makes nor even references any of them.  What an embarrassment.

Posted on by Mark Movsesian

The Memorial Day Prayer for Peace

Monday is Memorial Day in the United States, a national holiday. The day commemorates the men and women who have died serving in the US military. There will be speeches, parades, picnics and wreath-layings across the country.

There will also be an officially-promoted prayer. By law, the President “is requested” each year to issue a proclamation “calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace.” The proclamation is supposed to designate a time on Memorial Day for the prayer and invite the media to participate. This year’s proclamation, issued yesterday, reads in part as follows:

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim Memorial Day, May 28, 2012, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time to unite in prayer. I also ask all Americans to observe the National Moment of Remembrance beginning at 3:00 p.m. local time on Memorial Day.

I’m not sure why, but the Memorial Day Prayer for Peace hasn’t drawn the same attention as the yearly presidential Thanksgiving Day Proclamation. Perhaps this is because the Memorial Day prayer is a more recent phenomenon, dating, like the inclusion of the words “under God” in the Pledge of Allegiance, only from the 1950s. Perhaps people are too busy enjoying their picnics to notice. In any event, notwithstanding the Court’s occasional pronouncements about the need to avoid even generic official endorsements of religion, non-sectarian endorsements like the Memorial Day prayer are very much a part of the American constitutional tradition. Americans, on the whole, seem to like them and want them to continue. Happy Memorial Day.

Posted on by Mark Movsesian

More on Religion and the Eurozone Crisis

Last week, I discussed Walter Russell Mead’s interesting post on how the Greek crisis implicates the divide between the Eastern and Western Christian worlds. Here’s another reference to the religious implications of the eurozone crisis, in an essay by Estonian President Toomas Hendrik Ilves. Ilves complains that northern countries have been trying for decades to be fiscally responsible. Now, he says, the EU is asking these countries, even relatively poor countries like Estonia, to fund transfer payments to profligate southern countries like Greece, Italy, Portugal, and Spain. And when political leaders in the northern countries object, their counterparts in the rest of the eurozone accuse them of courting “populism,” which, in the European context, carries the connotation of fascism.

These accusations irritate Ilves, and he says so bluntly. In the course of his essay, he makes a startling religious reference. It’s only a quick reference in a long essay, with a subtle, almost dog-whistle quality. But I think it’s significant. Ilves draws on the image of the Protestant Reformation to explain the current eurozone crisis:

When we still talk about new and old members, we still talk nonsense about “populism” in all the wrong ways. Indeed I believe that the “populism” and the “specter of the 30s” that all kinds of pundits unknowledgeably appeal to has nothing to do with the populism we see in Northern Europe. That is not a populism of the dispossessed, the unemployed. It is a populism more akin to what Calvin and Luther appealed to than what the fascists of the 1930s appealed to. It is, like most populism, based on resentment, and resentment at unfairness. But the unfairness is, as it was in the 16th Century, a resentment of those who flaunt their flouting the rules by which others abide. Resentment on the part of those who take commitments seriously regarding those who do not: Is that the “specter of the 30s”?

It would be silly to ascribe the whole eurozone crisis to the different worldviews of Protestants and Catholics, and Ilves doesn’t do so. Some fiscally responsible countries that Ilves praises, like Austria and Poland, are historically Catholic. And, anyway, politics throughout Europe is quite secular, and there’s plenty of blame to go around. Still, one can’t help noticing that the “frugal” countries happen to be mostly northern and historically Protestant, and the “profligate” countries tend to be southern and historically Catholic (or Orthodox). Paging Max Weber! H/T: Rod Dreher.

Posted on by Michael Helfand

The New Footnote 4?

For all the attention given to the Supreme Court’s decision in Hosanna-Tabor v. EEOC, there’s been very little attention given to footnote 4 of the decision, which states the following:

A conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits. . . . We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear [the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.

Now for many, this footnote is just a civil procedure issue, which says little about the core law & religion debates addressed in Hosanna-Tabor.  Indeed, Howard Wasserman has a thoughtful piece exploring how this footnote fits within a larger trend of Supreme Court decisions addressing the distinction between jurisdictional bars and merits-based defenses.

But Wasserman’s arguments notwithstanding, I can’t shake the feeling that this footnote says something very important about the relationship between church and state.

For some time, a number of authors have contended that constitutional doctrines such as the ministerial exception functioned as jurisdictional bars; that Read more

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Weinstein on RLUIPA’s Effect on Local Governments

Alan C. Weinstein (Cleveland-Marshall College of Law, Cleveland State University) has posted The Effect of RLUIPA’s Land Use Provisions on Local Governments. The abstract follows.

In the absence of perfect information about how RLUIPA has affected local governments, this article argues that the courts have adopted a pragmatic approach to maneuvering in the difficult terrain that RLUIPA occupies: combining appropriate judicial deference to a legislature that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same law is applied to a specific zoning approval, a circumstance that frequently allows for subjectivity, and thus the potential for discrimination or arbitrariness against religious uses, in the approval process. I conclude that: (1) until proven otherwise, the costs RLUIPA undoubtedly imposes on local governments is the price to be paid for insuring against the discriminatory or arbitrary application of land use regulations and (2) RLUIPA does not seek to establish an unconstitutional preference for religious uses, but rather a proper accommodation of religious exercise in the land use context.

Posted on by Marc O. DeGirolami

Religion and Bankruptcy: Sturges v. Crowninshield

One of the activities that the CLR co-sponsored last year was the conference by our excellent bankruptcy colleagues Ray Warner and Keith Sharfman (who together run the Center for Bankruptcy Studies at St. John’s) on Religion and Bankruptcy.  You can see some discussion of the conference here, here, here, and here.

As often happens to me, I came upon a neat topic of discussion months after the conference was over.  Sturges v. Crowninshield (1819), authored by Chief Justice Marshall, dealt in part with New York’s power to create a “bankrupt” law (a bankruptcy law) or instead “whether the power is exclusively vested in the congress of the United States” pursuant to Article I section 8 which gives Congress authority to enact “uniform Laws on the subject of Bankruptcies throughout the United States.”  It’s not my area, and so I am likely missing lots of important details (please fill them in), but I’m apprised by some bankruptcy folks that the old rule was that states could have bankruptcy rules so long as Congress did not pass a federal one, which meant that for much of the period  before 1898, states did have, and could have, their own bankruptcy laws.

Crowninshield is a long and extremely complicated case, involving the Contracts Clause as well.  But I thought to highlight one interesting piece of dicta in a later portion of the decision involving the relationship of bankruptcy and the religious ideas of the discharging of debt, expiation, and the alleviation of public misery and poverty.  Note also the natural law language used by Marshall in discussing the states’ “inherent” power to achieve these aims, as well as the way in which the Court wrestles with the problems of prison, debt, and freedom in the cultivation of good citizenship.

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Wright on Neutrality in Religion Clause Cases

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Can We Make Sense of ‘Neutrality’ in the Religion Clause Cases?: Seven Rescue Attempts, and a Viable Alternative. The abstract follows.

This Article addresses the controversial question of ‘neutrality’ as a crucial test in a number of important Religion Clause cases. The idea of ‘neutrality’ in the Religion Clause context turns out to be popular, but unavoidably incoherent.

The Article then explores seven alternative approaches to explaining why Religion Clause neutrality tests persist, despite the evident incoherence of the concept of neutrality. None of these seven alternatives, however, holds much promise for a valuable re-interpretation or rescue of the idea of neutrality.

What is needed is not a re-interpretation of Religion Clause neutrality tests, but a replacement for such tests. The Conclusion offers coherent and useful guidance in addressing many Religion Clause cases, based on a surprising adaptation of elements from the apparently remote area of Takings Clause and police power regulation jurisprudence.

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Ali on Women’s Rights in Pakistan

Shaheen S. Ali has posted Overlapping Discursive Terrains of Culture, Law and Women’s Rights: An Exploratory Study on Legal Pluralism at Play in Pakistan. The abstract follows.

This paper argues that plural regulatory frameworks (‘laws’ broadly defined) including religion, culture, customs, tradition as well as ‘formal’ law (national and international) informing women’s human rights, collude to create and perpetuate gender hierarchies. Whilst ‘informal’ norms of culture, custom and tradition expressly advance this position, gender neutral laws adopted by the state and her institutions are suspect, as these too, operate within a male socio-legal and political environment. Using the example of Pakistan, the paper attempts to present the contours of an analytical framework for mounting a challenge to plural legal systems from the perspective of women’s lived experiences and realities of their being.

Posted on by Michael Helfand

Garnett on Koppelman and Religious Neutrality

Richard Garnett just posted “Neutrality and the Good of Religious Freedom: An Appreciative Response to Professor Koppelman” on SSRN (check out his short post about the paper here as well).  The piece was prepared for the recent conference we held at Pepperdine Law School, titled “The Competing Claims of Law & Religion: Who Should Influence Whom” and will be published in the upcoming symposium volume of the Pepperdine Law Review dedicated to papers from the conference.  Here’s the abstract for Garnett’s paper:

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.

Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.