Posted on by Marc O. DeGirolami

Beam Reviews Fosi’s “Papal Justice”

This is an informative and very positive review by Sara Beam of Irene Fosi’s book, Papal Justice: Subjects and Courts in the Papal State, 1500-1750, which we noted here some time ago.  A bit from the review:

Fosi focuses on the ways in which the Roman courts sought to extend papal control over its temporal territory, a region in central Italy bordered by the Kingdom of Naples in the south and reaching in the north just beyond the city of Bologna. The bulk of Fosi’s analysis focuses on the late sixteenth and seventeenth centuries, a period of state centralization and religious orthodoxy. Courts at the heart of the papal enterprise, such as the governor’s tribunal and the Roman Inquisition, were key tools in the pope’s efforts to create a hegemonic state out of disparate regions with strong local traditions of governance. Like waves lapping on the shore, the efforts of the papal courts to undermine the traditional privileges of the nobility, to correct the religious doctrine of its subjects, and to bring the authority of local bishops under the control of Rome were gradual, uneven, and yet relentless. They were also often less than completely successful, and Fosi endeavors to tease apart the aims of the government from the reality of judicial practice. Grounding her analysis in decades of intensive work in the Roman criminal archives, she shows how the rules of justice functioned while at the same time, she remains attentive to the negotiations between different courts and the frequency with which legal disputes were settled outside of the court system. Justice, for Fosi, was a fundamental component of early modern state-building not because it was always rational and systematic, but rather because it was sufficiently flexible to adapt to local conditions and mediate between competing power-brokers.  

Posted on by Marc O. DeGirolami

The Watercolor of Religious Liberty

United States v. Macintosh does not usually appear in the religious liberty canon, but it should.  The case involved a Canadian national who emigrated to the United States as a student, was eventually ordained as a Baptist minister, and later joined the faculty of the Yale Divinity School.  He returned to Canada in advance of the First World War to serve as a military chaplain on the front.  After the war, when he came back to the United States and applied for citizenship in 1925, he was asked, pursuant to Section 4 of the Naturalization Act, to swear that he would agree to bear arms on behalf of his country.  He replied that his “first allegiance was to the will of God” and that he could not agree to bear arms categorically, in advance of knowing the particulars.  The federal district court denied his petition for naturalization on the ground that he was insufficiently “attached to the principles of the Constitution.”  In a 5-4 opinion authored by Justice Sutherland, the Supreme Court affirmed.  Chief Justice Hughes wrote the dissent.

What is wonderful about Macintosh is that in just a few quick and short strokes, the Court sets out the fundamental conflict between allegiance to state and to conscience.  All at once it evokes, on the one hand, Gobitis and Barnette, and, on the other, Reynolds, Sherbert, Smith, and Hosanna-Tabor.  But the case is not technically a Free Exercise Clause case, and so it is sometimes overlooked.  If you are looking for the grand oil masterpieces of the religion clauses, you’re liable to walk right by this unimposing gem of a watercolor. 

Read more

Posted on by Mark Movsesian

Catholic Bishop Warns of Interdict in Parish Dispute

You don’t see this everyday. Bishop Robert Morlino of the Catholic Diocese of Madison, Wisconsin has warned parishioners that they may be subject to the penalty of interdict if they continue protesting the behavior of two parish priests. An interdict is a rare canonical punishment that would exclude the parishioners from sacraments like marriage and communion.

The priests, from a Spanish order, have been serving at a parish in Platteville, a farming community. They are, in Catholic terms, “traditionalist.” According to the Wall Street Journal, they have, among other things,  banned female altar servers, forbidden shorts and other casual clothing at Mass, and stressed “doctrinal orthodoxy in their sermons.” These activities did not go over well with more liberal parishioners, hundreds of whom signed a petition to Bishop Morlino demanding the priests’ removal. The parishioners complained that the priests were acting inconsistently with Church teaching, particularly the reforms of Vatican II.

In a letter to the parish, Bishop Morlino admitted that some of the priests’ actions had been hurtful; he encouraged parishioners to forgive the priests and the priests to be more sensitive in future. But there was no evidence that the priests had contravened Church doctrine, including the teachings of Vatican II, he wrote. In the end, the complaints reflected mere “personal likes and dislikes, along with inflated rumors and gossip, some of which may even rise to the level of calumnious inciting of hatred of your priests, the faith, and myself.” These complaints could not be the basis for “firing” the priests — indeed, under canon law, a parish has no authority to “fire” its pastors.

Canon law does, however, give a bishop authority to discipline refractory parishioners, and Bishop Morlino suggested he might do so if the complaints don’t stop. He attached to his letter a list of relevant texts on which he asked parishioners “to reflect prayerfully.” Among these were canons providing for “penal sanctions, ” including Canon 1373, which provides that a person who “publicly incites . . . animosities or hatred against the Apostolic See or an ordinary [e.g., a bishop] because of some act of power or ecclesiastical ministry or provokes subjects to disobey them is to be punished by an interdict or other just penalties.” The parishioners would still be Catholics; an interdict would not change that. Of course, some parishioners may decide to leave the Church on their own. As it is, donations since the priests began serving the parish have dried up, so much so that the parish school has had to close.

Posted on by Marc O. DeGirolami

No Establishment Clause Violation in RI Sports Field Allocation Dispute

The United States District Court for the District of Rhode Island has ruled that the City of Pawtucket’s football and soccer field permitting policies do not violate the Establishment Clause (readers may remember that the City of Pawtucket was the defendant in an important Establishment Clause case several years ago, Lynch v. Donnelly).

Plaintiffs, a collection of parents of public school students in Pawtucket, alleged that the City was “preferentially allocating permits for the use of publicly owned and maintained athletic fields to private religious schools.”  Because both the public and parochial schools within the City generally do not have athletic fields on their own respective grounds, they have had to share the City’s public fields.  The District Court’s excruciatingly detailed factual findings about the history of field allocation across the years indicate that for a long period, that arrangement seemed acceptable.  But an athletic director for one of the public schools became disgruntled about scheduling difficulties, and decided that displeasure as to the allocation of practice field permits warranted an Establishment Clause claim. 

Applying the Lemon and endorsement tests, the Court rejected the claim.  The City granted preference to public schools over the parochial schools in the scheduling of games, and public schools were advantaged in some ways, but not in others.  “The Court need not complicate a simple analysis: the City’s permitting policies implement the clearly secular purpose of allocating limited game and practice field space to all junior high and high school students within the City.” 

As to effect, the plaintiffs’ claim was that because the only private schools which benefited from the policy were Catholic, that in itself violated the Establishment Clause.  That argument was, quite properly, rejected by the court, which noted that

The Supreme Court has consistently rejected the premise that conduct which in some manner aids an institution with a religious affiliation violates the Establishment Clause. See Mueller, 463 U.S. at 393. It is “well-established” that a state may reimburse parents for expenses associated with transporting their children to and from school and that a state may loan secular textbooks to all schoolchildren within the state. Id. Some benefit flowing from the government to religion is permissible, as “not every [practice] that confers an indirect, remote or incidental benefit upon [religion] is, for that reason alone, constitutionally invalid.”  Lynch, 465 U.S. at 683.

The case is Rogers v. Mulholland, 2012 WL 1565091 (D.R.I. May 4, 2012).

Posted on by Michael Helfand

Putting the Legal in Religious Legal Theory

I just finished reading Samuel Levine’s essay RLT: A Preliminary Examination of Religious Legal Theory as a Movement, which considers the challenges facing the creation of a Religious Legal Theory (RLT) movement akin to Critical Legal Studies, Law & Economics and Empirical Legal Studies.  As Levine notes, the growing – and, to mind, successful – Religious Legal Theory conferences (the three annual RLT conferences thus far have been held at Seton Hall, St. John’s and Pepperdine) indicates that there is a conglomeration of research and scholarship revolving around some central concept captured by the label “religious legal theory.”

Among the challenges to the RLT movement detailed by Levine, I was most drawn to the tension between the pluralism embedded within RLT – it brings together different methodologies, disciplines and faith perspectives – and the need for a movement to advance a “foundation of meaningful concepts” in order to retain coherence, integrity and longevity.

As I’ve thought about this challenge, I’ve wondered whether RLT can do more to capitalize on the legal within religious legal theory.  By that I mean, further focus its efforts on the ways in which religion and religious life incorporates legal structures and norms.  This inquiry might itself be described as two-fold: to what extent does religious life mimic that of a legal system – and how might those similarities impact the nation-state’s treatment of religion.  As example, RLT might further explore the methods of authority, interpretation, and norm-creation within religious communities and compare those methods to compare to other legal structures.  Moreover, to the extent religion and law share important similarities, questions of accommodation, deference and enforcement might require considering religion alongside, for example, international law and foreign law where the nation-state has contemplated navigating the competing claims of conflicting legal norms.  Such an approach would incorporate insights of legal pluralism, international legal theory, political philosophy, and indigenous law into the RLT movement.

This is not to say that this isn’t already happening; to the contrary, there is growing amount of writing on this very issue – and probably more to come in light of the Supreme Court’s recent pronouncements in Hosanna-Tabor v. EEOC.  Some examples that come to mind – just to name a few – include Paul Horwitz’s work on First Amendment Institutions (here and here), Joel Nichols recent book Marriage and Divorce in a Multicultural Context, Ayelet Shacher’s book Multicultural Jurisdictions, Perry Dane’s work on church autonomy and legal pluralism (see, e.g., here and here), Rick Garnett’s work on religious institutions, (see, e.g., here and here), Chaim Saiman’s Jesus Legal Theory, and Mark Movsesian’s Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence.

Consider this a pitch for more of the same and for moving this focus into the center of the RLT movement.

Posted on by Mark Movsesian

Valliere, “Conciliarism”

Where does authority lie in the Christian church? Who has the ultimate say on canons and doctrine? These questions have preoccupied Christianity pretty much from the beginning, and one traditional answer has been the “ecumenical council,” a collection of bishops from around the world who convene to consider disputes about theology and practice. The most famous such council was the Council of Nicea in 325 A.D., which fixed the date for Easter and issued the historical Christian creed that bears its name. (The council was called by a pagan emperor, Constantine, a fact that itself opens the door to interesting questions about church-state relations). Human nature being what it is, Christians fairly quickly fell into debate about which councils were in fact ecumenical and binding. For Oriental Orthodox Christians, there have been three, the latest of which convened in the fifth century; for Eastern Orthodox, there have been seven, the latest of which convened in the eighth century; for Catholics, there have been 21, the latest of which, Vatican II, ended only in 1965. Protestant Christians, who have a much looser concept of the church, typically do not vest the councils with as much importance.

All of this is background for what looks to be an interesting new book by Butler Professor Paul Valliere, Conciliarism: A History of Decision-Making in the Church (Cambridge 2012). The publisher’s description follows:

Conciliarism is one of the oldest and most essential means of decision-making in the history of the Christian Church. Indeed, as a leading Orthodox theologian Alexander Schmemann states, ‘Before we understand the place and the function of the council in the Church, we must, therefore, see the Church herself as a council.’ Paul Valliere tells the story of councils and conciliar decision-making in the Christian Church from earliest times to the present. Drawing extensively upon the scholarship on conciliarism which has appeared in the last half-century, Valliere brings a broad ecumenical perspective to the study and shows how the conciliar tradition of the Christian past can serve as a resource for resolving conflicts in the Church today. The book presents a conciliarism which involves historical legacy, but which leads us forward, not backward, and which keeps the Church’s collective eyes on the prize – the eschatological kingdom of God.

Posted on by Mark Movsesian

Giving the Ministerial Exception a Bad Name

Over at PrawfsBlawg, our friend Paul Horwitz notes an interesting piece in the New York Times yesterday on doings at the Trinity Broadcast Network, an extremely successful Christian cable channel. Well, “doings” is perhaps too polite. TBN, which advocates the so-called “Prosperity Gospel,” has received many millions of dollars over the years in donations from the faithful — $93 million in 2010 alone. An insider now claims that much of the money has gone to fuel the lavish lifestyle of TBN executives, particularly the network’s founders, the husband-and-wife team of Paul and Janice Crouch. I won’t go into the details, except to say that the portrait is one of high-spending, low-rent excess, and that the allegations come from one of the Crouch’s own granddaughters, who other family members say was the real sponger.

IRS regulations prohibit “excess compensation” for executives of non-profit organizations. According to the Times, though, TBN has been able to avoid scrutiny by relying on the ministerial exception. TBN has allegedly ordained “dozens of staff members . . . including chauffeurs, sound engineers, and others,” as ministers, thus allowing TBN to give them rent-free luxury “parsonages” and to avoid paying Social Security taxes on their salaries. TBN’s lawyer defended the network’s actions, arguing that the hundreds of ordained employees, including performers at a TBN-affiliated religious theme park, had experienced a true religious vocation.

Who knows how these allegations will sort out? One issue that seems sure to arise, though, is fraud. Some of the Court’s church autonomy cases suggest that fraud is a limitation on the ministerial exception, though the cases don’t really develop the idea. If the IRS were to go after TBN, it could argue that the ordinations for company workers without any theological or pastoral training were phony. Questioning such ordinations would obviously raise free exercise concerns, though, and at least one legal expert the Times quotes thinks it won’t happen: “absent clear fraud, the government is not going to touch that.”

Posted on by Marc O. DeGirolami

On Being “Compromised”

Over at the Mirror of Justice, Lisa Schiltz offers a brief recap of the Religiously Affiliated Law Schools conference that began yesterday and is continuing today, and which Mark attended.  Though I did not attend the conference, and so did not hear the exchange that she describes, this statement about a claim by Professor Michael Broyde caught my eye:

Michael Broyde from the Center for the Study of Law and Religion at Emory sparked some friendly fireworks with his provocative claim that law and religion institutes at religiously-affiliated schools are necessarily compromised in their ability to engage in an intellectually honest pursuit of truth[.]

The idea of a scholar, or a scholarly center, being “compromised” because of the religious affiliation of the home institution is an interesting one and I want to explore it here.  Because I did not hear Professor Broyde myself, I will rely on Lisa’s report of his remarks — more to think through some of these issues than to attack anything he said specifically. 

I can think of three ways in which an academic institution or the scholar working in it may be “compromised” in the “intellectually honest pursuit of truth” by a religious affiliation.  Let’s take them one at a time.

Read more

Posted on by Mark Movsesian

Tennessee Governor to Veto Vanderbilt Bill

Tennessee Governor Bill Haslam has announced that he will veto the bill, discussed here, that would ban “all-comers” policies, such as the one at Vanderbilt University, that require student groups to open their leaderships to all students, including students who reject the groups’ core beliefs. Although he disapproves such policies, Haslam said, he thinks it’s “inappropriate for government to mandate the policies of a private institution.”