Posted on by Mark Movsesian · 1 Comment

A Question for Mike Helfand on Religious Arbitration

Mike, thanks for the very interesting posts you’ve been doing this month. I wonder if I could ask about something in your last post, in which you discuss the case with the arbitration agreement calling for “three Orthodox rabbis.” A state court refused to enforce the agreement, since enforcement might have required the court to decide whether the named arbitrators were, in fact, “Orthodox,” which would impermissibly have entangled the court in a religious question. You suggest that the court’s concern with entanglement was overstated, and I have some sympathy with that view.

I wonder whether last week’s Second Circuit decision in Commack Self-Service Kosher Meats has any implications for your argument. In that case, the Second Circuit upheld a NY law requiring sellers of kosher products to indentify which private organization had made the kosher certification. The law did not raise entanglement concerns, the court argued, because the law did not require civil government to certify that particular products were, in fact, “kosher.” The law simply facilitated private decision-making by requiring sellers to disclose the basis for their assertions about their products. If sellers wished to sell, and consumers wished to purchase, products with a “kosher” certification from the United Methodist Church, for example, the state would not object.

Might a mechanism that defers to the decisions of private organizations avoid entanglement issues in arbitration agreements? For example, we could require parties who seek religious arbitrators to specify ahead of time which private associations will name the arbitrators. For example, the parties could agree that any disputes between them “will be resolved by three Orthodox rabbis from the Beth Din of America.” In enforcing such an agreement, a civil court would not be endorsing the proposition that rabbis from the Beth Din of America are, in fact, “Orthodox.” The court would merely be deferring to the parties’ decision to defer to the Beth Din’s decision. Of course, this solution would privilege organizations like the Beth Din over less institutional arbitration mechanisms, and that might pose an establishment problem under current doctrine. But is it worth thinking about?

Posted on by Marc O. DeGirolami

Hammill, “The Mosaic Constitution”

Here is a very interesting contribution to intellectual, literary, and political history, The Mosaic Constitution: Political Theology and Imagination from Machiavelli to Milton (U. Chicago Press 2012), by Graham Hammill (SUNY Buffalo).  The publisher’s description follows.

It is a common belief that scripture has no place in modern, secular politics. Graham Hammill challenges this notion in The Mosaic Constitution, arguing that Moses’s constitution of Israel, which created people bound by the rule of law, was central to early modern writings about government and state.

Hammill shows how political writers from Machiavelli to Spinoza drew on Mosaic narrative to imagine constitutional forms of government. At the same time, literary writers like Christopher Marlowe, Michael Drayton, and John Milton turned to Hebrew scripture to probe such fundamental divisions as those between populace and multitude, citizenship and race, and obedience and individual choice. As these writers used biblical narrative to fuse politics with the creative resources of language, Mosaic narrative also gave them a means for exploring divine authority as a product of literary imagination. The first book to place Hebrew scripture at the cutting edge of seventeenth-century literary and political innovation, The Mosaic Constitution offers a fresh perspective on political theology and the relations between literary representation and the founding of political communities.
Posted on by Marc O. DeGirolami

Hashmi (ed.), “Just Wars, Holy Wars, & Jihads”

Here is a very interesting collection of essays on religious perspectives on military engagements of various kinds: Just Wars, Holy Wars, & Jihads: Christian, Jewish, and Muslim Encounters and Exchanges (OUP 2012), edited by Sohail H. Hashmi (Mount Holyoke).  The publisher’s description follows.

Just Wars, Holy Wars, and Jihads explores the development of ideas of morally justified or legitimate war in Western and Islamic civilizations. Historically, these ideas have been grouped under three labels: just war, holy war, and jihad. A large body of literature exists exploring the development of just war and holy war concepts in the West and of jihad in Islam. Yet, to date, no book has investigated in depth the historical interaction between Western notions of just or holy war and Muslim definitions of jihad. This book is a major contribution to the comparative study of the ethics of war and peace in the West and Islam. Its twenty chapters explore two broad questions:

1. What historical evidence exists that Christian and Jewish writers on just war and holy war and Muslim writers on jihad knew of the other tradition?

2. What is the evidence in treatises, chronicles, speeches, ballads, and other historical records, or in practice, that either tradition influenced the other?

The book surveys the period from the rise of Islam in the early seventh century to the present day. Part One surveys the impact of the early Islamic conquests upon Byzantine, Syriac, and Muslim thinking on justified war. Part Two probes developments during the Crusades. Part Three focuses on the early modern period in Europe and the Ottoman Empire, followed by analysis of the era of European imperialism in Part Four. Part Five brings the discussion into the present period, with chapters analyzing the impact of international law and terrorism on conceptions of just war and jihad.

Posted on by Marc O. DeGirolami

The Political Relevance of Religious Leaders

The New York Times is reporting that President Obama made fairly significant efforts to placate various religious leaders almost immediately after he announced last week that he now supports same-sex marriage (see this post by my colleague, Mark, in which the President explained that his position on same-sex marriage was informed by his Christian faith).  One of the people whom the President contacted expressed concerns that this policy shift might have implications for religious liberty.  The President is reported to have responded: “Absolutely not.  That’s not where we’re going, and that’s not what I want.”

What is most interesting is not the wide range of reactions that the President received from religious leaders, all of whom are otherwise aligned with the President politically, but that the President believed it to be crucial as a political matter to reach out to so many religious figures only hours after he made the announcement.  That alacrity speaks to the continuing political importance of these religious communities, whether for the right or the left.

Posted on by Marc O. DeGirolami

Fourth Circuit Prison Beard Case Remanded

Ordinarily we do not post about too many cases brought by prisoners alleging a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which reinstated in the context of land use and prison disputes the strict scrutiny balancing regime that Employment Division v. Smith had rejected.  Yet it may be of interest for readers to know that these cases are brought quite frequently by prisoners.  The prisoners generally lose.

But the Fourth Circuit yesterday gave a prisoner suing under RLUIPA a win.  Plaintiff is a Sunni Muslim prisoner serving multiple life sentences in Virginia who brought a RLUIPA claim when prison officials refused to let him grow a 1/8 inch beard in compliance with the requirements of his faith.  In 1999, the prison instituted a grooming policy prohibiting the wearing of beards, unless someone obtained a “No Shave Pass” from the prison’s medical authority, in which case they were allowed to sport a 1/4 inch beard.

Writing for a unanimous panel (which included Retired Supreme Court Justice Sandra Day O’Connor and Judge Dennis Shedd), Chief Judge Traxler first found that the grooming policy imposed a substantial burden on the plaintiff’s religious practice.  The Court also held that the state had a compelling interest in the grooming policy — accepting the prison’s claims about security, health, concerns about prisoner identification, and others.

The case was vacated and remanded on the issue of whether the policy was the least restrictive means of advancing the state’s compelling interest.  The plaintiff argued that a religious exemption for a 1/8 inch beard would have been just such a less restrictive means, but the prison officials rejected that solution, reasserting their interests in security and health.  That was deemed an insufficient response by the court: the prison officials’ affidavits did not:

address[] the feasibility of implementing a religious exemption or discuss whether a one-eighth-inch beard would in fact implicate the identified health and safety concerns in the Policy . . . . [T]hey fail to explain how the prison is able to deal with the beards of medically exempt inmates but could not similarly accommodate religious exemptions.    

The key here was that the prison officials failed even to address the possibility of the 1/8 inch beard solution, or to explain why it would not fulfill the aims of the policy.  “That explanation, when it comes, will be afforded due deference.” 

The case is Couch v. Jabe, 2012 U.S. App. LEXIS 9602 (4th Cir. May 11, 2012).

Posted on by Mark Movsesian

Second Circuit Upholds NY’s Kosher Labeling Statute

New York’s Kosher Law Protection Act of 2004 requires sellers who market food products as kosher to label the products “kosher” and identify the person who has made the “kosher” certification. Unlike an earlier statute, which defined “kosher” by reference to Orthodox Jewish kashrut rules, the 2004  act does not define the term or authorize state inspectors to determine whether products satisfy particular kashrut requirements. It simply requires sellers to affix a label and disclose the basis for their assertion that the products are, in fact, kosher.

A New York deli that sells kosher food under the supervision of a non-Orthodox rabbi challenged the 2004 statute under the Establishment and Free Exercise Clauses. The deli pointed out that non-Orthodox interpretations of Jewish law do not require kosher food to bear a label, and argued that the labeling requirement thus amounted to an establishment of Orthodox Judaism. The deli also argued that the labeling requirement burdened its free exercise of a non-Orthodox form of Judaism.

Yesterday, the Second Circuit dismissed these claims. With respect to establishment, the court applied the  Lemon test. It held that the 2004 act had the secular purpose of preventing consumer fraud and did not advance religion. It’s true that the labeling requirement coincided with Orthodox Jewish practice, the court reasoned, but that did not amount to a legislative endorsement of Orthodox Judaism. A reasonable observer would see the labeling requirement as a neutral guide for consumers who wished to purchase kosher food — 70% of whom, the court noted, were not even Jewish, according to market research (who knew?). And, because the statute did not require the government to assess the correctness of a kosher designation, but only required sellers to identify the private persons that had made the designation, the statute did not threaten any entanglement with religion. With respect to the free exercise claim, the court held under Smith that the 2004 act was a neutral and generally applicable consumer protection law that did not violate plaintiff’s rights. The case is Commack Self-Service Kosher Meats v. Hooker, 2012 WL 1633143  (May 10, 2012).

Posted on by Michael Helfand

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?

Read more

Posted on by Mark Movsesian

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.

Posted on by Mark Movsesian

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.

Posted on by Marc O. DeGirolami

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.