Triger on Civil Marriage and Non-Marital Cohabitation in Israeli Rabbinical Courts

Zvi H. Triger (U. of Alabama School of Law) has posted Freedom from Religion in Israel: Civil Marriage and Non-Marital Cohabitation of Israeli Jews Go to the Rabbinical Court. The abstract follows.

The only form of marriage that is recognized under Israeli law is religious marriage. Following the Supreme Court’s ruling in the landmark 1963 Funk Schlesinger case, Israeli authorities must register couples who got married abroad as married. Many couples who wish to avoid the religious monopoly on marriage and divorce choose this rout. However, they are utterly wrong in thinking that they achieve freedom from religion by doing so.

In a 2006 landmark decision the Supreme Court held that the rabbinical court system has jurisdiction over the divorce of couples who got married in civil marriages abroad. While they do not need to have a full religious get procedure, the rabbinical court has exclusive jurisdiction over the dissolution of civil marriages of Jews. The Court’s decision was based on halachic principles, and was pre-approved by a panel of the rabbinical court.

However, rabbinical courts have been ignoring the Supreme Court’s injunction concerning the application of a speedier, more liberal divorce procedure in the dissolution of civil marriages, and they insist on performing a full Jewish get procedure. This article presents this trend, analyzes this phenomenon and offers tentative and preliminary speculations as to the reasons for and the direction of these developments.

McLellan on Jehovah’s Witnesses and Child Protection Legislation

Myles Frederick McLellan  (U. of Ottawa) has posted Jehovah’s Witnesses and Child Protection Legislation: The Right to Refuse Medical Consent. The abstract follows.

Anglo-American law has for some time recognized the fact that the rearing of children cannot always be handled properly within the context of the natural family unit. Nevertheless, it is a far cry from the proposition that children cannot by their parents to a determination that they should not be so raised. The most bitter confrontation between parents and state usually occurs when the parents, far from being uncaring, interact with their children according to certain ideological, ethical or religious principles. Jehovah’s Witnesses are perhaps the most prominent example of this class of parent. They have, because of their interpretation of the scriptures, forbad certain forms of medical or surgical treatment. They have a deep religious conviction against the administration of blood transfusions. Parents who refuse to give consent for a blood transfusion for their children genuinely believe they are providing for their children’s best interest. When a child’s life is dependent upon a blood transfusion, there is an obvious clash of child-care standards – those imposed by the tenets of a religious faith and those imposed by the state.

It is the aim of this article to explore the remedies available to the state in such situations, and then to discuss the propriety of state intervention in such cases.

Religious Freedom and the Social Contract

This morning I listened to part of a debate from last November between Noah Feldman and Michael McConnell on the question of whether religious freedom should receive special constitutional protection.  Noah’s position, increasingly familiar these days, asserted that the First Amendment’s special commitment to religious freedom derived from theistic premises that are no longer admissible in a liberal political order.  So although religious belief and expression will be protected under freedom of speech etc., there is now no justification for any special commitment to religious freedom.

I’m persuaded by half of this argument– namely, that it is difficult to justify a special commitment to religious freedom on purely secular premises.  (In fact, I’ve been making that argument for years now.)  So if religious freedom is to be justified, it seems that something like the traditional religious arguments will need to do some work.  But how can religious rationales do any work when they have been banned from the political and jurisprudential workplace?  Contra Feldman et. al, I don’t agree that the logic of liberalism necessarily excludes reliance on religious beliefs.  (I also wonder whether this claim is consistent with what Noah has written about the possibilities of democracy in Islamic countries.)  Still, illogical or not, it seems to be a fact that judges and scholars today usually don’t treat religious arguments as admissible.  So, what to do?

Here’s one suggestion– one that could use a lot of elaboration and refinement, but that may be worth raising for consideration.  The proposal, basically, is that special protection for religious freedom is a central part of the social contract, and that it would be both unjust and imprudent for government to violate that contract.

A quick qualification:  “Social contract” may not be the best metaphor here.  In fact I usually don’t find “social contract” reasoning at all cogent.  Given greater space and ability (both already exceeded in this post), I’d prefer to elaborate the theme more in terms of “consent,” along the lines of Alexander Bickel’s “The Morality of Consent.”  But “social contract” may do for now.  Let me explain.

We all participate (or decline to participate) in our political and social order based on some understanding of what its terms are– what government can expect of us, what we can expect of government, what we can expect government not to do.  These terms form a sort of “social contract,” but they are not derived from any thought experiment based on a fictional “state of nature” or “pre-political condition” or “original position.”  Rather, they are real terms, partly written but largely unwritten, that we perceive in our law, traditions, and practices.  The terms are subject to interpretation, of course, and no doubt they may change over time– occasionally through deliberately enacted law, more often through gradual and almost imperceptible cultural evolution.  Nonetheless, at any given time we have some sense of the terms of this implicit but quite real “social contract.”

So long as government honors the terms, we may feel some obligation to render our support and allegiance.  Conversely, if government disregards or violates the terms of the “contract,” our loyalty is betrayed and our commitment compromised.  We may come to perceive government no longer as representing us, but as an occupying power, and we may thus qualify or withhold our allegiance.

I would suggest (and I’m not sure that scholars like Feldman would disagree) that a special commitment to religious freedom has been a central part of this nation’s social contract.  Nor has that situation changed, I suspect.  For many religious people, this term is still an essential one; but even nonreligious people might acknowledge that religious freedom has been and continues to be an understood term of the contract.  (So this is not, or not merely, an “originalist” argument.) People like Feldman may think that on modern secular premises, this particular contractual term probably wouldn’t or shouldn’t be adopted today.  Even if they are right, though, that observation does not alter the terms of the contract as it stands and is understood.  And violations of a central term– by the courts, say, . . . or the Administration– will be perceived by those who care about it as a betrayal and a fundamental injustice.

It’s true that people who remain committed to this particular term of the contract– to constitutional respect for religious freedom– may be acting on the basis of traditional theological rationales that many other citizens no longer accept.  In this way, the traditional rationales continue to influence our constitutional order.  But that influence works via citizens’ commitments and the terms of the social contract.  And secular liberals would be ill-advised to insist that every term of the contract must be supported by reasons that all citizens accept, since their own position and premises could be promptly disqualified by such a restriction.  (I know, I know . . . it’s what “reasonable” citizens would accept.  But if blatant question-begging is permitted, what’s the point of these exercises anyway?)

This rationale strikes me as promising in part because it is realistic.  It points to what is actually at stake, today, and it does not rely either on decades-old political decisions or on airy assumptions about what “reasonable” citizens could “in principle” agree to or about imaginary “overlapping consensuses.”  Still, it is a rough, unrefined suggestion.  I wish Bickel were around to improve it.

– Steve Smith

Walter Russell Mead on Christianity and America’s Elites

For Americans of the Framing generation, it was axiomatic that religion–which, for them, meant Protestant Christianity–was essential to the functioning of a republic. Without Christian morality, they believed, self-government would be impossible. They worried about establishments, of course, but very few would have argued that a republic could survive without a religious citizenry. Indeed, even with a religious citizenry, they thought restraints were necessary. As Richard Hofstadter famously argued, the Constitution’s structure of checks and balances owes much to Calvinist conceptions of Original Sin and its consequences. The conviction that people are ultimately flawed and self-seeking explains the intricate mechanisms for impeding the will of democratic majorities. The Framers were not utopians.

One doesn’t hear these sentiments expressed too much nowadays. Many more Americans are atheists, and non-Christians, than at the Framing, and everybody knows believers have no monopoly on ethical behavior. That may be why this recent column by Walter Russell Mead has hit such a nerve. Mead argues, in a way that would have been very familiar to Washington, Hamilton, and their contemporaries, that the fading of Christianity among America’s elites has had a very bad influence on national life, and that America must recapture a sense of Christian humility if it is to meet its current challenges. The whole thing is worth reading, but here’s a representative sample. CLR Forum readers, any thoughts?

I do not say that a “Christian” or theistic meritocracy would work where a secular one must fail. (We had a Christian meritocracy in Puritan New England. The best, brightest and godliest hanged Quakers and witches.) And I repeat what I wrote earlier, to avoid misunderstanding: Christianity is not the only religious or other source of the kind of moral insight and spiritual depth that can mitigate the problems of a meritocratic society. It is the one I understand best and the one that, historically, has played the most important role in American life. I leave to others the task of describing other resources and traditions by which other Americans whose talents have brought them into important and powerful positions in our society can be guided and checked.

But with those appropriate reservations appropriately taken, I do say that the fading of serious Christian commitment in the sleek and successful ranks of America’s meritocracy plays a significant and damaging role in our national life. The renewal of Christian commitment among a significant sector of America’s elite is, I think, a necessary condition of continued American progress and success.  If we get this, we will still need social reforms and social change . . . . But if we don’t get that kind of renewal and commitment, no program of reform, however wisely engineered, can keep our liberty, our prosperity and our democracy safe, much less transform them into something richer, deeper, greater and more widely and fairly shared than anything we have yet seen.

Conversations: Andrew Preston

Last week, we reviewed Cambridge historian Andrew Preston’s very worthwhile new book on religion in American foreign policy, Sword of the Spirit, Shield of the Faith. In the book, Preston (left) addresses religion’s complex, but constant, role in American diplomacy from colonial times to the present. This week, Preston kindly agrees to answer some questions from CLR Forum. He discusses historians’ tendency to ignore the influence of religion, the place of “Christian republicanism”  and anti-Catholicism in American foreign policy, and the ways in which today’s secular human-rights campaigners echo the universalist notions of nineteenth-century Protestant missionaries. He also discusses the impact of post-War secularization, tensions between the religious right and religious left, and the place of religion in President Obama’s foreign policy.

CLR Forum: Andrew, you note that, although religion has greatly influenced the formation and execution of American foreign policy, most diplomatic histories neglect its role. Why do you think that is? Does the neglect reflect a realist approach that denies the importance of ideology in foreign relations generally or a failure of diplomatic historians to come to terms with religion in particular? 

Preston: It’s an impossible question to answer definitively, but I think the general neglect of religion reflects both the prevailing dominance of the realist approach and the fact that religion is still poorly understood, and even seen as strange and alien, by most academic historians of international relations and foreign policy. This is despite the cultural turn’s phenomenal impact on diplomatic history, which now avidly incorporates non-traditional categories of historical analysis such as race, gender, and post-modernism.

CLR Forum: An important theme in Sword of the Spirit is the impact on American foreign policy of what you call “Christian republicanism,” a unique “blend of Protestant theology and democratic politics.” According to this worldview, Christianity is compatible with political freedom; indeed, Christianity is the source of political freedom. How did this ideology develop, and how is it distinctively American?

Preston: I’m not sure it’s distinctively American, though its endurance in American political thought for several centuries is unique. But the ideology of Christian republicanism developed out of the English and Scottish Reformations, when Protestant reformers argued that anyone who put Read more