Posted on by Michael Helfand

Levin on Judaism and the Same-Sex Marriage Debate

While procrastinating about grading, I scrolled through today’s twitter feed (yes,  you too can follow my not-particularly exciting twitter feed) and found a extremely thoughtful op-ed by Hillel Y. Levin (U. Georgia Law School) in Tablet Magazine titled “Stay Out of It.”   In the piece, Levin criticizes recent statements from prominent Orthodox Jewish institutions opposing same-sex marriage.  Much of Levin’s criticism tracks some of the larger debates over whether there is a role for religious argumentation in the public sphere – debates frequently associated with John Rawls’s seminal article “The Idea of Public Reason Revisited.”

But Levin also presses on another reason why Orthodox Jews should be particularly sympathetic to same-sex marriage, which emphasizes the minority status of both the Jewish and LGBT communities.  Here’s an excerpt I found particularly noteworthy:

Unlike our Christian friends and neighbors, Jews grow up with our minority status deeply ingrained and without the instinctive expectation that our religious traditions and beliefs will naturally be reflected in the broader law and culture. As a minority within a minority, Orthodox Jews recognize that we reap the benefits of pluralism, tolerance, and accommodation. After all, if religious beliefs in this country were to orient secular law, we would find ourselves deeply disappointed and possibly threatened, just as we historically have in every other diaspora country.

Posted on by Marc O. DeGirolami

RFRA News Item

Here’s a story for The Hill about RFRA and the HHS mandate by Elise Viebeck to which I contributed some thoughts.  The story is right that RFRA had broad bi-partisan support back in 1993, including from the late Senator Ted Kennedy.  Employment Division v. Smith elicited displeasure across the aisle.  Different times.

Posted on by Marc O. DeGirolami

Notre Dame Files HHS Mandate Complaint Against Obama Administration

The text of the complaint is here.  A whopping 43 other Catholic dioceses and organizations have also filed suit today (whoa).  A few thoughts about this complaint:

  • The leading cause of action is RFRA (beginning at paragraph 202).  This makes sense as it is the strongest legal claim.
  • On the free exercise claim, have a look at paragraph 235.  ND obviously knows that alleging a substantial burden alone is not sufficient to make out an FE claim.  It therefore emphasizes that the mandate is not a neutral law of general application “because it is riddled with exemptions.”  That technically is a claim about general applicability.  A law can be facially neutral inasmuch as it does not by its terms single out religion for discriminatory treatment.  But even if it does not discriminate on its face, a law may not be generally applicable if it is loaded with exemptions.
  • Also look at paragraph 236.  ND is not only making a claim about the lack of general application.  It is also saying that the Administration made this regulation knowing that it would burden ND’s religious beliefs.  That knowledge is in turn made the basis for a claim of “targeting” of religion.  This claim, if accepted, implicates the “neutrality” component of the Smith test.  This is an interesting claim to watch, inasmuch as I am uncertain whether knowledge is sufficient to ground a claim of discriminatory purpose (in the criminal context, sometimes knowledge is deemed sufficient — see, e.g.,  the law of conspiracy).
  • ND is also making an “excessive entanglement” claim which implicates the Establishment Clause.  “Excessive entanglement” with religion is the third prong of the Court’s still operative Establishment Clause Lemon test, and it is something the Court at least indirectly emphasized in the recent Hosanna-Tabor decision.  This sort of claim is also raised at paragraph 270 and following.

Also have a look at our friend Rick Garnett’s comments at Mirror of Justice.

Posted on by Mark Movsesian

District Court Enjoins Lord’s Prayer at County Council Meetings

Another legislative prayer case, this time from Delaware. For several years, the Sussex County Council has opened its weekly meetings with the Lord’s Prayer. In December, plaintiffs represented by Americans United for Separation of Church and State brought suit to enjoin the practice, arguing that it violated the Establishment Clause. Last week, a federal district court agreed. Although Marsh v. Chambers allows legislative prayers, Judge Stark explained, the prayers must be nonsectarian, in order to avoid the implication that government endorses any particular religion. The Lord’s Prayer was undeniably a Christian, and thus sectarian, prayer; in fact, the version the Council used was a recognizably Protestant version of the prayer. (Comparative religion buffs take note: Jesus Seminar scholar John Dominic Crossan testified in the case that the Lord’s Prayer is not, in fact, exclusively Christian, an assertion Judge Stark dismissed). “The fact that the Lord’s Prayer has been the only prayer recited at the beginning of Council meetings for over six years,” Judge Stark argued, suggests that “the Council gives Christianity an unconstitutionally preferred status, sending a message to meeting attendees that the Council is promoting the beliefs of Christianity.” Judge Stark, sua sponte, stayed his injunction for a period of one month’s time in order to give the Council a chance to adopt a practice of nonsectarian prayers that would satisfy the Establishment Clause. The case is Mullin v. Sussex County (D. Del.) (May 15, 2012).

Posted on by Marc O. DeGirolami

Second Circuit Adopts Intermediate Test for Legislative Prayer

An interesting decision yesterday from the Second Circuit dealing with the issue of legislative prayer.  The town of Greece, New York, had begun its town board meeting sessions with a prayer since 1999; the town had a practice of inviting different people to give the opening prayer.  Objecting town residents sued in 2008 and the district court granted summary judgment for the defendant town.

In a panel decision authored by Judge Guido Calabresi, the Second Circuit reversed.  Crucial to the Court’s reversal was that in practice almost all of the prayers had been delivered by Christian clergy members — “from 1999 through 2007, every prayer-giver who gave the invocation met this description.”  After 2008 and the receipt of complaints, a Wiccan and Jewish prayer were delivered, but then between 2009 and 2010, the town again invited only Christians.  Typically the invocations “gave thanks” for life in the town and “requested assistance” with governance, “begin[ning] with some variant of ‘let us pray,’  and then [] speak[ing] about the matters for which ‘we’ pray . . . . Members of the audience and the Board have bowed their heads, stood, and participated in the prayer by saying ‘Amen,'” or on occasion by making the sign of the cross.  About 2/3 of the prayers contained specific references to Jesus Christ, while the remaining third “spoke in more generally theistic terms.”

The case was one of first impression for the Second Circuit on the issue of the constitutionality of legislative prayers.  In construing Marsh v. Chambers and County of Allegheny v. ACLU, and in considering various circuit court precedent addressing the issue of legislative prayer, the Court took a very interesting position.  It held that “denominational” references in legislative prayers are permissible, and that the distinction between “sectarian” and “nonsectarian” prayer is untenable.  Here’s a portion of the Court’s decision:

Read more

Posted on by Mark Movsesian

Walter Russell Mead on Religious Identity and the Eurozone

Over at Via Meadia, Walter Russell Mead has an insightful post on the issues of religious identity that surround Greece’s possible exit from the eurozone. One often hears Europe described, sometimes disparagingly, as a Christian club. That’s certainly how Muslim Turks see it. But it may be more correct to see Europe as a Western Christian, as opposed to an Eastern Christian, entity. Of the 17 eurozone members, only two, Greece and Cyprus, are historically Orthodox. Greece is on the brink of  ruin, and Cyprus’s economic fortunes are closely tied to Greece’s. Many Greeks feel intensely bitter about the way other European countries have treated it and do not seem to care too much about remaining in the eurozone. Many other Europeans apparently feel the same way about Greece. If Greece does exit the eurozone, Mead predicts, it will  find solidarity  in a relationship with a similarly alienated Orthodox country, Russia. Mead explains why:

Americans often don’t “get” the Russia-Greek connection. In Ottoman times, Orthodox Russia was the protector of Orthodox Christians in the great Islamic empire and frequently used its diplomatic clout to defend the rights of its co-religionists. Greece looked to Russia as a reliable ally during much of the troubled period after modern Greece gained independence from the Turks.

The feeling is reciprocal. Russia received the gospel from Greek Christians. The Russian tsars married into the Byzantine royal house; the word tsar (or czar) is the Russian form of Caesar, indicating the strong Russian sense that Orthodox Moscow, after the fall of Constantinople, was the “Third Rome.” Much of modern Russian identity and sense of a unique place in the world is wrapped up in its civilizational connection with Byzantine culture and religion.

Mount Athos, the center of Orthodox monasticism and the spiritual heart of Greece, looms large in Russia. No less a person than President Vladimir Putin has made pilgrimages to this site.

In the 1990s, the late Samuel Huntington wrote a controversial book, The Clash of Civilizations, which discussed, among other things, the Orthodox/Western fault line that runs through Eastern Europe. At the time, Huntington’s work was dismissed as reductive, even offensive, particularly by some Orthodox, who resented the suggestion that they weren’t fully part of Western culture. Shared religious identity really does matter, however, and Huntington was surely on to something, as Mead’s analysis of the present situation demonstrates.

Posted on by Marc O. DeGirolami

Berger on Ritual, Religion, and Institutions

Peter Berger’s blog is quickly becoming one of my weekly regular reads — and as he explains in this post, blogging is a weekly affair for him.  One of the most incisive points he makes is about the ritualistic qualities and regularized patterns of the institutions that we construct for ourselves — a point that has not gotten as much attention with respect to legal institutions as it perhaps deserves.   Here’s a portion on the relationship of habits, rituals, and institutions:

[E]very habit has the potential to become a ritual. Since ritual is at the very heart of religion, and since I have assumed the obligation to blog about religion at least most of the time, the topic is not out of order here.

Forming habits is a basic requirement if human beings are going to live in a society (which in turn is a requirement for surviving as a species). Society is only possible because its members share mutually predictable programs of behavior. We are different from even our closest zoological relatives in that our biological makeup falls far short of supplying the required programs. The social philosopher Arnold Gehlen interpreted our species as being instinctually deprived, a “deficient being”. [He could also have called homo sapiens a biologically under-equipped chimpanzee, but philosophers, especially German ones, don’t use such colorful language.]  Since our instincts provide us with only a few programs of behavior, we must invent such programs ourselves. These ersatz instincts are what we call institutions (Gehlen has built a very interesting theory on this phenomenon). Let us assume that Adam and Eve, when they met for the first time, did have a built-in program driving them toward each other. Beyond this primal interaction, nature did not tell them what else they should do with each other. Consequently human beings constructed these immensely varied and complex institutions, which provide programs for tackling the problems of sexuality, procreation, child-rearing, nomenclature, the rights of property, and so on. If these institutions—we commonly call them kinship—did not exist, the rules of engagement would have to be renegotiated every time a man was attracted to a woman, down to the property rights of great-grandchildren. This process of endless renegotiation would take all available time: Nothing else would get done, including such urgent activities as agriculture and warfare.

ADDENDUM: I was remiss in failing to note for readers that for further reflections of a similar nature, see Berger’s wonderful book from a few decades ago, The Sacred Canopy: Elements of a Sociological Theory of Religion.

Posted on by Mark Movsesian

Lloyd, “Race and Political Theology”

From Stanford University Press, a new collection of essays, Race and Political Theology, on how the experiences of Jews and African-Americans inform discussions about religion and politics. Vincent W. Lloyd (Syracuse) is the editor. The publisher’s description follows.

In this volume, senior scholars come together to explore how Jewish and African American experiences can make us think differently about the nexus of religion and politics, or political theology. Some wrestle with historical figures, such as William Shakespeare, W. E. B. Du Bois, Nazi journalist Wilhelm Stapel, and Austrian historian Otto Brunner. Others ponder what political theology can contribute to contemporary politics, particularly relating to Israel’s complicated religious/racial/national identity and to the religious currents in African American politics. Race and Political Theology opens novel avenues for research in intellectual history, religious studies, political theory, and cultural studies, showing how timely questions about religion and politics must be reframed when race is taken into account.

Posted on by Mark Movsesian

Kuru & Stepan, “Democracy, Islam, and Secularism in Turkey”

From Columbia University Press, a new collection of essays on law and religion in Turkey, Democracy, Islam, and Secularism in Turkey, edited by Ahmet Kuru (San Diego State) and Alfred Stepan (Columbia). The publisher’s description follows.

While Turkey has grown as a world power, promoting the image of a progressive and stable nation, several choices in policy have strained its relationship with the East and the West. Providing historical, social, and religious context for this behavior, the essays in Democracy, Islam, and Secularism in Turkey examine issues relevant to Turkish debates and global concerns, from the state’s position on religion to its involvement with the European Union.

Written by experts in a range of disciplines, the chapters explore the toleration of diversity during the Ottoman Empire’s classical period; the erosion of ethno-religious heterogeneity in modern, pre-democratic times; Kemalism and its role in modernization and nation building; the changing political strategies of the military; and the effect of possible EU membership on domestic reforms. The essays also offer a cross-Continental comparison of “multiple secularisms,” as well as political parties, considering especially Turkey’s Justice and Development Party in relation to Europe’s Christian Democratic parties. Contributors tackle critical research questions, such as the legacy of the Ottoman Empire’s ethno-religious plurality and the way in which Turkey’s assertive secularism can be softened to allow greater space for religious actors. They address the military’s “guardian” role in Turkey’s secularism, the implications of recent constitutional amendments for democratization, and the consequences and benefits of Islamic activism’s presence within a democratic system. No other collection confronts Turkey’s contemporary evolution so vividly and thoroughly or offers such expert analysis of its crucial social and political systems.

Posted on by Mark Movsesian

Macfarlane, “Islamic Divorce in North America”

Lately, law and religion scholarship has begun to address the phenomenon of private religious arbitration. (Mike Helfand, who is blogging with us this month, is doing important work in the area; check it out). Although the phenomenon transcends religious boundaries, most attention goes to the new Islamic law tribunals that have appeared in the West. Many Western Muslims avoid civil courts and go instead to fiqh tribunals to handle marital and family disputes. These tribunals raise important questions, both from the perspective of civil law — should civil courts enforce the decisions of religious tribunals? — and from the perspective of religious law — to what extent do traditional fiqh rules regarding marriage apply in a contemporary non-Muslim society?

Julie Macfarlane (Windsor) has written an interesting-looking new book, Islamic Divorce in North America (Oxford 2012) that sheds light on some of these issues. The book is a qualitative sociological study of Islamic marriage and divorce in the United States and Canada. The publisher’s description follows:

Policy-makers and the public are increasingly attentive to the role of shari’a in the everyday lives of Western Muslims, with negative associations and public fears growing among their non-Muslim neighbors in the United States and Canada. The most common way North American Muslims relate to shari’a is in their observance of Muslim marriage and divorce rituals; recourse to traditional Islamic marriage and, to a lesser extent, divorce is widespread. Julie Macfarlane has conducted hundreds of interviews with Muslim couples, as well as with religious and community leaders and family conflict professionals. Her book describes how Muslim marriage and divorce processes are used in North America, and what they mean to those who embrace them as a part of their religious and cultural identity. The picture that emerges is of an idiosyncratic private ordering system that reflects a wide range of attitudes towards contemporary family values and changes in gender roles. Some women describe pervasive assumptions about restrictions on their role in the family system, as well as pressure to accept these values and to stay married. Others of both genders describe the gradual modernization of Islamic family traditions – and the subsequent emergence of a Western shari’a–but a continuing commitment to the rituals of Muslim marriage and divorce in their private lives. Readers will be challenged to consider how the secular state should respond in order to find a balance between state commitment to universal norms and formal equality, and the protection of religious freedom expressed in private religious and cultural practices.