Posted on by Mark Movsesian · 2 Comments

Throne and Altar

Judging by church attendance and the percentage of people who say religion plays an important role in their lives, Europe is a secular place. And yet, as sociologists of religion have observed, Christianity continues to have a major cultural and legal role. Nowhere is this clearer than in Britain, where the Monarch is the “Supreme Governor” of the state church. Britain today commemorated the Jubilee of Queen Elizabeth II with a Thanksgiving service in London’s St. Paul’s Cathedral. The Prime Minister read from the New Testament and the Archbishop of Canterbury delivered a sermon praising the Queen for manifesting the values of St. Paul himself:

Dr Rowan Williams paid tribute to the Queen’s selfless devotion, saying: “I don’t think it’s at all fanciful to say that, in all her public engagements, our Queen has shown a quality of joy in the happiness of others; she has responded with just the generosity St Paul speaks of in showing honour to countless local communities and individuals of every background and class and race.”

One would think such ceremonies, to borrow the phrase from American law, send a message of exclusion and disparagement that religious minorities resent, but that is apparently not the case, or at least not typically. It’s not the American way of doing things, but, as Joseph Weiler has written, “there is something inspiring and optimistic by the fact that even though the Queen is the Titular Head of the Church of England, the many Catholics, Muslims and Jews, not to mention the majority of atheists and agnostics, can genuinely consider her as ‘their Queen’ too.”

Posted on by Mark Movsesian

Kar on the Eastern Origins of Western Law

Robin Kar (Illinois) is doing a series of articles that takes issue, among other things, with parts of the Berman thesis I mentioned yesterday in my post on John McGinnis. Here is the abstract for the second in the series, On the Early Eastern Origins of Western Law and Western Civilization: New Arguments for a Changed Understanding of Our Earliest Legal and Cultural Origins (Part 2):

Western law and Western civilization are often said to be parts of a distinctive tradition, which differentiates them from their counterparts in the “East” and explains many of their special capacities and characteristics. One common version of this story, as propounded by the influential legal scholar Harold Berman, asserts that Western civilization (including its incipient legal traditions) began in the 11th century AD with a return to the texts of three more primordial traditions: those of ancient Greece, Rome, and Israel. The basic story that Western civilization finds its origins in ancient Greek, Roman, and Hebrew culture is, however, so familiar and so pervasive that it has rarely — until recently — been questioned in the West.

This Article develops a novel set of arguments, rooted in recent findings from a broad range of cognate fields, to suggest that this standard story is nevertheless incomplete and even potentially misleading. If we are genuinely interested in understanding our origins in a way that will shed light on why the West has exhibited such distinctive capacities for large-scale human civilization and the rule of law, then the story we commonly tell ourselves starts abruptly in the middle and leaves out some of the most formative (and potentially transformative) dimensions of the truth. Western law and Read more

Posted on by Marc O. DeGirolami · 2 Comments

The Eighth Circuit on “Substantial Burden”

The Eighth Circuit has held that a defendant with religious objections may have the right under the Religious Freedom Restoration Act to refuse to rise when a judge enters the courtroom.  The defendant in a prosecution for conspiracy and providing material support to terrorist organizations refused on several occasions to stand up when the court convened.  After explaining that the First Amendment did not give the defendant a right not to rise, the judge found the defendant in contempt of court twenty times for refusing to stand up.  On remand, the Eighth Circuit has instructed the District Court to determine whether standing in court is the “least restrictive means” of achieving the concededly compelling interest of “maintaining order in the courtroom.”  The Eighth Circuit also indicates, at the end of the decision, that it will accord considerable deference to the District Court on this score. 

Because there has been a bit of discussion lately in the context of the HHS Mandate about what constitutes a “substantial burden” for RFRA purposes, I thought to highlight that portion of the Eighth Circuit’s discussion.  The District Court had evaluated the issue of substantial burden by comparing the behavior of other Muslims, noting that they had no problem with standing up.  That comparison was rejected by the Court as improper: “such considerations are irrelevant in the RFRA context so long as Ali’s objection to the pretrial order was rooted in her own sincerely held religious beliefs.”

Also important is the issue of “inconsistency.”  Apparently the defendant stood up for the jury and in other contexts, but did not stand up for the judge.  The District Court found this to be evidence of “inconsistent” adherence to her religious belief (even though the defendant explained the difference as being one about outward shows of respect).  The Eighth Circuit again rejected inconsistency as a gauge to measure substantial burden: 

[F]ocusing on Ali’s “inconsistent” application of her belief in refusing to rise to honor the court but standing so that prospective jurors could see her is not appropriate in the RFRA context . . . . [T]he court erred by evaluating the orthodoxy and sophistication of Ali’s belief, instead of simply evaluating whether her practice was rooted in her sincerely held religious beliefs. 

This is relevant language, because one sometimes hears supporters of the mandate say that a burden really cannot be that substantial if either (a) some, or even many, Catholic organizations have provided funding for contraceptives in various other contexts; or (b) the particular Catholic organization in question has inconsistently adhered to its belief that providing funding for contraceptives is wrong.  But if the Eighth Circuit is right, then these sorts of arguments are not relevant to assessing the question of substantial burden for RFRA purposes.

The case is United States v. Ali, 2012 WL 1970776 (8th Cir. June 4, 2012).

Posted on by

Resnicoff on Jewish Law and the Tragedy of Sexual Abuse of Children

Steven H. Resnicoff  (DePaul U. School of Law) has posted Jewish Law and the Tragedy of Sexual Abuse of Children: The Dilemma within the Orthodox Jewish Community. The abstract follows.

Jewish law requires a person to exert one’s energies and expend one’s financial resources to prevent the commission of interpersonal crimes and to protect or rescue victims of such crime. By contrast, American law generally permits a person to watch another bleed to death without offering any assistance at all. Most Jewish law courses place great emphasis on this difference, and commentators frequently cite it as proof of Jewish law’s moral superiority.

However, with respect to the tragedy of child sexual abuse, the systems seem to have switched roles. American law imposes a variety of affirmative duties on individuals and organizations to protect prospective victims. These obligations include conducting fingerprint-based criminal background checks on employees and reporting reasonably suspected or reasonably believed child abuse to public authorities.

By contrast, with respect to child sexual abuse, many, although certainly not all, important Orthodox authorities have rejected the ameliorative steps prescribed by secular law. Even more troublingly, they have permitted, and in at least some cases possibly encouraged, reprisals against those who have reported abuse, including victims and their families.

I argue that the problem does not lie in Jewish law. After thoroughly examining the relevant Jewish law doctrines, I conclude that Jewish law not only permits but actually demands that vigorous measures be taken to eradicate child sexual abuse. However, I also acknowledge that the sociological realities of the Orthodox Jewish community seem to have produced a variety of pressures that help perpetuate the status quo. Such factors include conscious or subconscious concerns for the financial viability of important communal institutions and for the community members’ continued fealty to traditional rabbinic authorities. However, I argue that even these concerns could be more successfully addressed if rabbinic authorities would spearhead steps to stamp out child sexual abuse.

Posted on by

Zelinsky on Religious Tax Exemptions and Entanglement

Edward A. Zelinsky (Cardozo School of Law) has posted Do Religious Tax Exemptions Entangle in Violation of the Establishment Clause? The Constitutionality of the Parsonage Allowance Exclusion and the Religious Exemptions of the Individual Health Care Mandate and the Fica and Self-Employment Taxes. The abstract follows.

In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion from gross income of clerical housing allowances.

I ultimately find unpersuasive the indictment of Section 107 as constitutionally entangling. For the same reasons, I also conclude that the religious exemptions of the Social Security taxes and of the individual health mandate pass First Amendment muster. In the modern world, extensive contact between tax systems and religious institutions is unavoidable. Whether religious entities and actors are taxed or exempted, there are inevitable tensions between the contemporary state and sectarian institutions and their personnel. Whether religious entities and actors are taxed or exempted, there are no disentangling alternatives, just imperfect trade-offs between different forms of entanglement.

Thus, Section 107 and the exclusion from gross income it grants to clerical recipients of housing and parsonage allowances are constitutionally permitted, though not constitutionally required, responses to the problems of entanglement inherent in the relationship between modern government and religion. Similarly, the Code’s sectarian exemptions from the individual health care mandate and from the FICA and self-employment taxes are acceptable, though not obligatory, means under the First Amendment of managing the inevitable contacts and tensions between the contemporary state and the religious community.

However, as a matter of tax policy, the exclusion of Section 107(2) for cash parsonage allowances stands on weaker ground than does the exclusion of Section 107(1) for in-kind housing provided to “minister[s] of the gospel.” The taxation of such cash allowances, in contrast to the taxation of housing provided in-kind, does not involve problems of valuation or of taxpayer liquidity and is thus more practicable as a matter of tax policy.

Posted on by Mark Movsesian

Sixth Circuit Rules Plaintiff Lacks Standing to Challenge Government’s Bailout of Firm Selling Sharia-Compliant Financial Products

In a recent contribution for a symposium CLR hosted here at St. John’s, Steve Smith argued that the Supreme Court’s restrictive standing doctrine in Establishment Clause cases has helpfully kept many disputes out of court. A Sixth Circuit case handed down on Friday provides a good example. Plaintiff challenged the U.S. Treasury’s provision of $70 billion to American International Group (AIG), which, through its subsidiaries, sells Sharia-compliant financial products, for example, products that avoid returns from “pork, alcohol, interest, gambling, or pornography.” Treasury disbursed the money pursuant to TARP, the Troubled Asset Relief Program, which Treasury established pursuant to the Emergency Economic Stabilization Act of 2008 (EESA). Plaintiff argued that the disbursement amounted to a promotion of Islam in violation of the Establishment Clause and claimed standing as a federal taxpayer.

The Sixth Circuit disagreed. Relying principally on the  Supreme Court’s 2007 holding in Hein v. Freedom from Religion Foundation, the court held that plaintiff lacked standing. Under Hein, the court explained, “a taxpayer-plaintiff has standing to challenge an executive-branch disbursement of funds only if the appropriating statute expressly contemplates the disbursement of federal funds to support religious groups or activities.” EESA did not; Treasury had made the decision to fund AIG on its own. “Neither . . . EESA nor any reasonable inference from its historical context suggest that Congress knew, or much less intended, that TARP funds might support the marketing and sale of” Sharia-compliant products, the court wrote. “It was only through executive discretion that TARP funds were transferred to AIG.”  The case is Murray v. U.S. Dept. of Treasury (6th Cir., June 1, 2012).

Posted on by Marc O. DeGirolami

Establishment Clause Cross-Winds

This is a news report about a hearing before Judge Loretta Preska (SDNY) on the Bronx Household of Faith case, discussed previously here and here.  The story may be behind a wall, so I will summarize some of it.  Bronx Household of Faith obtained a preliminary injunction and is now seeking a permanent injunction against New York City, which would stop the City from excluding Bronx Household and any other religious organization from equal access to public school facilities. 

The City’s ground for excluding Bronx Household was that it was engaging in “worship” while other groups using public facilities were not.  This rationale was accepted by the majority of a Second Circuit panel (Judge Walker dissented) as not constituting viewpoint discrimination, even though it was bound to accept the Supreme Court’s holding in Good News Club v. Milford Central School that the City could not exclude religious expression.  The panel further held that the City had an anti-establishment interest in avoiding the appearance of an endorsement which justified the policy of exclusion of “worship.” 

The case is now before Judge Preska on free exercise and establishment grounds.  Judge Preska seems skeptical that the City can determine what constitutes “worship” and what doesn’t without running into entanglement problems. 

Read more

Posted on by roncolombo · 1 Comment

Cristiada / For Greater Glory – Impressions

As promised, I’m reporting back with my impressions of “For Greater Glory,” a film depicting the Mexican Cristeros War of 1926-29, which opened this past weekend.

The film is not an American production – and its director makes his debut with it.  I fear that this shows.  Despite some genuine stars (Andy Garcia, Peter O’Toole, Eva Longoria), and beautiful visuals, the film lacks a certain polish.  It is at times too fast and choppy, and at times too slow and drawn out.  That said, the film has its moments – there are several excellent scenes.  And overall, it is certainly watchable.

And given its subject matter and content, I suggest that it is certainly worth watching.

The Cristeros War was sparked by widespread popular resistance to Read more

Posted on by Mark Movsesian

Turkish Pianist Indicted for Insulting Religious Values

On Friday, a Turkish court charged an internationally known pianist with the crime of insulting religious values for comments about Islam he posted on his twitter feed. The pianist, Fazil Say, allegedly mocked Islamic teachings about paradise. Say denies the charge, arguing through his attorney that his tweets were not public and that he merely criticized people who exploit Islam for profit. A New York Times discussion of the case is here.

Posted on by Mark Movsesian

McGinnis on Berman

Over at the Liberty Law Blog, John McGinnis (Northwestern) is doing a very interesting series on Harold Berman’s seminal two-volume history of Western law, Law and Revolution. In Law and Revolution, Berman argued that the existence of competing jurisdictions, each with a valid claim on people’s loyalties, has played an essential role in Western law, going all the way back to the 11th-century investiture crisis, which dealt in part with the competing jurisdictions of canon and royal courts. In this post, McGinnis argues that legal polycentrism of the sort Berman describes can promote liberty by preventing governmental monopolies. Classical American federalism, for example, promotes liberty by dividing power between state and federal sovereigns. McGinnis wonders, though, whether federalism can do the job today, now that states claim relatively little loyalty from their citizens. Check out the whole series.