On June 22 in Rome, CLR co-hosted a conference, State-Sponsored Religious Displays in the US and Europe, with the Department of Law at Libera Università Maria SS. Assunta (LUMSA). Videos of the panels are now available below. Papers will appear in a forthcoming issue of the Journal of Catholic Legal Studies.
- Silvio Ferrari (Università di Milano – Facoltà di Giurisprudenza)
Session 1: Cultural or Religious? Understanding Symbols in Public Places
- Thomas C. Berg (U. of St. Thomas School of Law)
- Carlo Cardia (Università di Roma Tre – Facoltà di Giurisprudenza)
- Eduardo Gianfrancesco (LUMSA – Dipartimento di Giurisprudenza)
- Francesco Margiotta Broglio (Università di Firenze – Facoltà di Scienze Politiche)
Session 2: The Lautsi Case and the Margin of Appreciation
- Monica Lugato (LUMSA – Dipartimento di Giurisprudenza)
- Marc O. DeGirolami (St. John’s U. School of Law)
- W. Cole Durham, Jr. (Brigham Young U. Law School)
Session 3: State‐sponsored Religious Displays in Comparative Perspective
- Diarmuid F. O’Scannlain (U.S. Court of Appeals for the Ninth Circuit)
- Paolo Cavana (LUMSA – Dipartimento di Giurisprudenza)
- Mark L. Movsesian (St. John’s U. School of Law)
- Sophie C. van Bijsterveld (Tilburg U. School of Humanities)
Ian C. Bartrum (U. of Nevada, Las Vegas, William S. Boyd School of Law) has posted The Ministerial Exception and the Limits of Religious Sovereignty. The abstract follows.
In January, the Supreme Court announced its decision in Hosanna Tabor v. EEOC and gave its official blessing to the controversial bit of doctrine known as the “ministerial exception.” The exception, which has been alive in the Circuit Courts for nearly forty years, exempts religious organizations from employment discrimination laws in the context of “ministerial” hiring decisions. Thus, such organizations are free to discriminate against ministerial employees not only on the basis of religion—which various statutory exemptions already permit—but also on the basis of race, gender, sexual orientation, and disability. Several thoughtful and well-‐respected voices have suggested that this effectively places churches “above the law,” and in some sense these criticisms seem to ring true. The constitutional justification often offered for this state of affairs, however, is that churches are not so much above the civil law, as simply outside of its jurisdiction. That is, while we may disapprove of the ways that a church selects its leadership—indeed, we may even believe that certain hiring practices are illegal—our constitutional structure simply does not empower the government to intervene in matters of church governance. And we have structured our Constitution in this way based, in large part, on the liberal Lockean conviction that church and state operate within separate and incommensurable spheres.
Carried to its logical extreme, however, this conception of separate and independent religious sovereignty suggests that the bar to governmental intervention in church governance is absolute; that a church can do anything—including, presumably, perform sacrificial rituals—that its members believe essential to basic governance decisions. In truth, however, no one I know of holds this sort of extreme, absolutist view, and thus arises the theoretical puzzle this essay addresses. If religious sovereignty is not absolute—if the liberal check on the state’s power to invade church jurisdiction does not go “all the way down”—then where do the limits on that sovereignty lie, and how do we determine that a church has exceeded them? In what follows, I draw some lessons from Thomas Kuhn’s thoughts about the shared grounds on which scientists justify their choices between incommensurable theoretical paradigms. Ultimately, I conclude that we can and do make decisions about the scope of religious sovereignty by balancing constitutional purposes against one another in making what Kuhn called “value judgments.” In the case of the ministerial exception, it is my constitutional value judgment that racial discrimination both exceeds the limits of independent religious sovereignty, and justifies state intervention in church governance.
Caroline Mala Corbin (U. of Miami School of Law) has posted The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Although Corbin addressed this issue last year, this updated article includes Corbin’s reflections post-decision. The abstract follows.
In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost. In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have.
Yale sociologist Philip Gorski has written a thoughtful essay in The Chronicle of Higher Education (subscription required) on the need to accommodate both secular and religious values in American politics. Both secular and religious Americans should give up their maximalist claims, he argues, in favor of “civil religion,” a concept most closely associated in the United States with sociologist Robert Bellah:
What is needed, then, is a mediating tradition that allows room for both religious and political values, without subordinating one to the other. Such a tradition does exist. The sociologist Robert N. Bellah sought to describe it almost a half century ago in his famous article on “Civil Religion in America.” It comprises two main intellectual strands: civic republicanism and prophetic religion. Where liberalism emphasizes individual autonomy and a free market, republicanism is more concerned with civic virtue and participatory government. Consequently it is less wary of religion. Where religious conservatism stresses individual salvation and personal accountability, prophetic religion emphasizes human flourishing and collective responsibility. Consequently it is less wary of the state.
It’s an interesting idea, but I wonder whether civil religion would really do the job Gorski asks of it. At an abstract level, civil religion may resolve tensions between individualists and communitarians, between secular and religious Read more
One of the most important debates in contemporary Islam concerns the possibility, and desirability, of accommodating classical Islamic law to modernity. A new book by Princeton scholar Muhammad Qasim Zaman, Modern Islamic Thought in a Radical Age: Religious Authority and Internal Criticism (Cambridge 2012), addresses the debate. The publisher’s description follows.
Among traditionally educated scholars in the Islamic world there is much disagreement on the crises that afflict modern Muslim societies and how best to deal with them, and the debates have grown more urgent since 9/11. Through an analysis of the work of Muhammad Rashid Rida and Yusuf al-Qaradawi in the Arab Middle East and a number of scholars belonging to the Deobandi orientation in colonial and contemporary South Asia, this book examines some of the most important issues facing the Muslim world since the late nineteenth century. These include the challenges to the binding Read more
Harold Berman famously argued that Western legal culture originated in the papal reforms of the High Middle Ages, which unleashed a torrent of law making throughout society. Catholic University Press has just released an English-language translation of University of Turin historian Massimo Vallerani’s work on the evolution of criminal trials in medieval Italy, Medieval Public Justice (2012), which includes statistical analyses of surviving court records. The publisher’s description follows.
In a series of essays based on surviving documents of actual court practices from Perugia and Bologna, as well as laws, statutes, and theoretical works from the 12th and 13th centuries, Massimo Vallerani offers important historical insights into the establishment of a trial-based public justice system. Challenging the long-standing evolutionary paradigm of medieval Read more
Once again, we’ve hit the silly season for objections to religious symbols. This week, in response to a threatened lawsuit by the Freedom from Religion Foundation, the city of Steubenville, Ohio, decided to revise its official seal (left) to remove the silhouette of a local landmark, the chapel on the campus of Franciscan University. You see it? Take your time, it’s over there on the right. The problem was the cross on top of the chapel. According to FFRF, its depiction amounted to an establishment of religion under current Supreme Court case law, which forbids government from endorsing religion. Someone suggested depicting the chapel without the cross, but FFRF apparently objected to that, too. So, rather than face an expensive lawsuit it figured it would lose, the city caved and restored an older version of the seal (below). The old seal avoids endorsing religion, though it does seem to endorse wooden forts.
I’m not sure the city was correct in estimating its chances. True, many lower courts have ordered the removal of crosses from city seals under the endorsement test, but the cases are very fact specific. The key question is whether a reasonable observer would see an official endorsement of Christianity, rather than a reflection of a community’s history. For example, the Tenth Circuit held a few years ago that the city of Las Cruces, New Mexico, could retain crosses on its seal in light of the Read more
That was fast. Last week, Mayor Thomas Menino announced that, because of COO Dan Cathy’s comments in favor of traditional marriage, Boston would not allow Chick-fil-A to open any restaurants in that city. Chicago Mayor Rahm Emanuel followed with similar statements. “Chick-fil-A values are not Chicago values,” he declared. The response from commentators on both the left and right was uniform and swift. Government cannot deny licenses because businesses express political opinions with which government disagrees: that’s what the Free Speech Clause is about. By this week, Menino had backed down, and New York’s Mayor Mike Bloomberg, a supporter of same-sex marriage, had distanced his city from the anti-Chick-fil-A campaign. The crusade to shut down Chick-fil-A seems to have ended, at least for now.
Consumers have every right to organize a boycott because they disapprove of what a firm’s COO has to say. Such boycotts typically fail, however, because of collective action problems. It’s hard to organize these things; most consumers simply don’t care enough about politics to have it drive their purchasing decisions. In the 1990s, conservatives failed when they tried to boycott Disney because of its support for gay rights, and liberals failed when they tried to Read more
The U.S. District Court for the District of Colorado has issued a preliminary injunction against the federal government in a lawsuit brought by a private corporation, Hercules Industries, Inc., and its owners and several individual plaintiffs, alleging that the HHS Mandate violates their religious liberty. These plaintiffs, unlike many of the plaintiffs in the other suits, were never within the safe harbor and do not qualify for the “religious employer” exemption of the HHS regulations. Rather, Hercules is a for-profit, secular employer whose owners are individuals with objections of religious conscience — they are Catholics. And Hercules is self-insured.
Of the four elements for obtaining a preliminary injunction, the most interesting is the likelihood of success on the merits. The court declined to address the plaintiffs’ constitutional claims (free exercise, establishment, and speech clauses) and instead resolved the case on the basis of the statutory claim under the Religious Freedom Restoration Act. Although it was comparatively non-committal on the question of substantial burden (holding that the question of whether a corporation could “exercise religion” “merit[s] more deliberate investigation”), it was clear that the government would likely fail on both the issues of furthering a compelling interest and least restrictive means. Here’s the Court on compelling interest:
A superbly provocative column (as usual) by Peter Berger, who this week is on about the religiosity of the most recent coercive legal push to be healthy mounted by New York City mayor Michael Bloomberg. A law and religion issue — as Berger tells it — if ever there was one. And the connection of the contemporary coercive legal healthism to the obsessive desire for (or perhaps even the expectation of) immortality is interesting too. From the conclusion to the column:
Back to the new war against obesity: It is not difficult to predict the trajectory which this project will follow. Very probably it will replicate, step by step, the war against tobacco. Once again, the basic rationale is the prevention of illness. Heart disease is the illness most closely associated with obesity—not as scary as lung cancer, but scary enough. The scientific validation of the project is clear—obesity is unhealthy. The same interests that supported the anti-smoking crusaders can be mobilized once again—doctors who jump on the prevention bandwagon when their ability to cure is often limited, researchers in need of funding, bureaucrats looking for new behaviors to regulate, activists in search of employment opportunities, and of course, legions of tort lawyers, salivating at the prospect of gargantuan settlements from the food and drinks industry. Pizza Hut and Pepsi Cola may take the place of Philip Morris as public enemies (and defendants in class-action lawsuits). The same arguments will serve to counter libertarian scruples—social costs and innocent bystanders. Children will again be featured in the litany of victims. (Michelle Obama understandably likes to preach in kindergartens and elementary schools.) Finally, class is again involved here: Upper income and higher education is associated with virtuous slimness, while all these fat working-class types waddle from Burger King to the unemployment lines. Just as the Victorian bourgeoisie tried to convert the poor slobs to its table of virtues (alcohol of course was then the most targeted vice), so the new bourgeoisie bombards the lower classes with its temperance crusade. (One might speak of the eternal return of the Salvation Army—George Bernard Shaw’s Major Barbara would today be reincarnated as a coach with Weight Watchers). It remains to be seen how far this will go before the Great Unwashed remember that, after all, they are (still) allowed to vote . . . .
Does this have anything to do with religion? I think it does. The quest of immortality is one of the most ancient religious themes. The health cult, with its mirage of endless youth if not immortality, is a quasi-religion. Its dogma is the obligation to live healthily. Like all religions, the health cult has a catalogue of virtues and a catalogue of vices, with rituals to affirm the former and ostracize the latter. There is also an equivalent of the Saudi Arabian police force dedicated to “the promotion of virtue and the suppression of vice”—an army of therapists, coaches, educators, advice columnists, dieticians, and other moral entrepreneurs. To date (still) they mainly rely on persuasion rather than coercion. Wait a little.