Posted on by rbonham1 · 3 Comments

Can Religious Freedom be Justified?

Boiled down, the basic argument goes something like this: A special commitment to religious freedom arose in a religious context and is most defensible on religious premises. Today, though, it is widely assumed that political and legal decisions must not be made on religious premises. Consequently, it is difficult today to give a persuasive (admissible) justification for a special commitment to religious freedom.

In one version or another, the argument has become familiar, and it also seems to be becoming increasingly persuasive. More and more scholars gravitate to the basic conclusion: there is no justification for religious freedom as a special right or constitutional commitment. And the Obama Administration’s recent positions on the “ministerial exception” and the “contraception mandate” suggest that the Administration has embraced this conclusion as well.

This last observation is for me reenforced by the strained hypotheses and rationalizations I have heard from intelligent thinkers who were trying hard to be friends both of the Administration and of religious freedom. For ordinary political purposes, I expect that it would be imprudent for a politician to come right out and declare, “First Amendment be damned; I’m opposed to special legal protection for religious freedom.” But viewed from a vantage point within the academy, this position seems utterly unsurprising. Obama was once an academic of sorts, and he reportedly has a few academicians working in his Administration. Why should anyone be surprised if he evolves toward a position– a position that might fairly be labeled “progressive”– that seems increasingly ascendant within the academy?

One question that emerges from these developments, though, is this one: How should people (such as myself) who do still favor a special constitutional commitment to religious freedom go about justifying that commitment? Or should we just concede that no solid justification is available? I expect and hope that these questions will receive increasing attention.

For myself, I’m not confident about the answers to the questions, if there are good answers. To be honest, I never really conceived it as my task to devise justifications for a commitment that, until fairly recently, seemed to enjoy the support of an overwhelming consensus both of scholars and citizens generally. Over the next few days, I may (or may not) try out a few very tentative ideas. Mostly, I hope to hear (in this or other contexts) what other people think.

— Steve Smith

Posted on by Mark Movsesian

UNESCO Declares Bethlehem Church a World Heritage Site

Last week, UNESCO accepted Palestinians’ application to have Bethlehem’s Church of the Nativity (left), the traditional site of Jesus’ birth, declared a “World Heritage Site” under the Convention Concerning the Protection of World Cultural and Natural Heritage. The list of roughly 1000 such sites worldwide, nominated by states that have signed the Convention, is essentially an honor roll, though named properties can qualify for UN restoration funds and for protection under the laws of war. Adding the Church of the Nativity was more controversial than usual. The US and Israel objected because of the implications for Palestinian statehood. Additionally, the three Christian communions that share the shrine under the 19th-Century Status Quo, which CLR Forum has discussed before, worry that designation as a World Heritage Site will lead to interference from civil authorities. In fact, the threat of outside interference typically gets the communions to settle differences among themselves, which may explain last fall’s agreement on repairs to the church’s roof. This is not the first time the church has been the subject of world diplomacy. In the 19th Century, rival claims to the church caused an international crisis that contributed to the Crimean War.

Posted on by Marc O. DeGirolami

Hall, “Roger Sherman and the Creation of the American Republic”

Look out this fall for an interesting new book about the ubiquitous early American statesman Roger Sherman: Mark David Hall’s (George Fox University) Roger Sherman and the Creation of the American Republic (OUP 2012).  A law and religion subject because of Professor Hall’s emphasis on the importance of Calvinist thought for Sherman.  The publisher’s description follows.

Roger Sherman was the only founder to sign the Declaration and Resolves (1774), Articles of Association (1774), Declaration of Independence (1776), Articles of Confederation (1777, 1778), and Constitution (1787). He served on the five-man committee that drafted the Declaration of Independence, and he was among the most influential delegates at the Constitutional Convention. As a Representative and Senator in the new republic, he played important roles in determining the proper scope of the national government’s power and in drafting the Bill of Rights. Even as he was helping to build a new nation, Sherman was a member of the Connecticut General Assembly and a Superior Court judge. In 1783, he and a colleague revised all of the state’s laws.

Roger Sherman and the Creation of the American Republic explores Sherman’s political theory and shows how it informed his many contributions to America’s founding. A central thesis of the work is that Sherman, like many founders, was heavily influenced by Calvinist political thought. This tradition had a significant impact on the founding generation’s opposition to Great Britain, and it led them to develop political institutions designed to prevent corruption, promote virtue, and protect rights. Contrary to oft-repeated assertions by jurists and scholars that the founders advocated a strictly secular polity, Mark David Hall argues persuasively that most founders believed Christianity should play an important role in the new American republic.

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Kovacs on the Tension Between Native American Religions and Wildlife Preservation Laws

Kathryn E. Kovacs (Rutgers School of Law – Camden) has posted Alleviating the Tension between Species Preservation and Religious Freedom. The abstract Follows.

The Bald and Golden Eagle Protection Act prohibits the taking or possession of eagles and eagle parts. Recognizing the centrality of eagles in many Native American religions, Congress carved out an exception to that prohibition for “the religious purposes of Indian tribes.” The problems with the administration of that exception are reaching crisis proportions. At the Fish and Wildlife Service’s National Eagle Repository, which collects dead eagles from around the country and distributes them to members of federally recognized tribes, more than 6,000 tribal members are on a waiting list for eagles. That list grows each year. The wait for a whole golden eagle is now more than four years. A growing number of people in the United States are practicing other religions, like Santeria, that require the use of bird feathers and cannot legally possess the eagle feathers they need for their religion. Frustration with the current system is feeding a burgeoning black market that threatens the viability of eagle populations. Neither of the Eagle Act’s goals are being met: eagles are not adequately protected, and tribal religious needs are not satisfied. Read more