I’ll be on Wisconsin Public Radio’s “At Issue With Ben Merens” from 5-6 pm eastern time, talking about the separation of church and state in the public school context as well as the 7th Circuit’s Doe v. Elmbrook School District decision discussed below.
UPDATE: The interview can be downloaded here.
A Pennsylvania judge today sentenced Monsignor William Lynn, a former official of the Catholic Archdiocese of Philadelphia, to a term of three to six years for the crime of felony child endangerment. A jury convicted Lynn last month in connection with his oversight of now-defrocked priest Edward Avery, who is serving a prison term for the sexual assault of an altar boy in 1999. Rather than reveal what he knew about allegations against the priest, the sentencing judge said, Lynn had chosen to obey his bishop and remain silent. Lynn is the first American priest to be convicted in connection with the covering up of sex abuse in the Catholic Church. His lawyers plan an appeal. The AP has the story here.
The observation that persecution, paradoxically, can confer benefits on a religion is not a new one. “The blood of the martyrs is the seed of the Church,” Tertullian wrote in the second century. It’s not an old one, either. Just yesterday, in fact, Judge Richard Posner made the point in his dissent in the Wisconsin high school graduation case, noted here. And, on SSRN, R. George Wright (Indiana University Robert H. McKinney School of Law) has posted an article, A Cost-Benefit Analysis of Religious Persecution: Casting Up a Dread Balance Sheet, arguing that persecution often confers “judicially cognizable benefits” on victims. The abstract follows.
This Article notes that it is currently a matter of public controversy whether some forms of persecution based on religion are increasing or decreasing in the United States. This question itself is not subject to reasoned, consensual resolution. But a related and extremely important point remains to be made. Specifically, alongside the obvious costs of any persecution based on religion, many instances of alleged or actual religious persecution confer immense, judicially cognizable benefits, from the standpoint of many of the victims themselves, on many parties, including those victims. It can be entirely legitimate for legislatures, agencies, and courts to take such immense benefits to the victims into account in adopting policies or adjudicating claims about such government policies.
Christopher McCrudden (Queen’s University Belfast/University of Michigan) has posted a very interesting looking piece on religion and human rights, Catholicism, Human Rights and the Public Sphere. Here’s the abstract:
This article suggests that the scope and meaning of human rights, and its relationship to religion, is anything but settled, and that this gives an opportunity to those who support a role for religion in public life to intervene. Such intervention should address four main issues. First, it should ensure that judges engage in attempting to understand religious issues from a cognitively internal viewpoint. Secondly, it should articulate a justification for freedom of religion that fully captures the core of the significance of religious belief, and the importance of the religious principles in the public sphere. Thirdly, it should ensure engagement and dialogue between the churches and others on the meaning of human dignity, given its centrality to religious and secular perspectives on rights. Lastly, the churches should consider more carefully what it means to give ‘public reasons’ in the political and cultural context, and how it can engage in the process of ‘public reasoning’ regarding human rights.
As Marc notes below, the Seventh Circuit handed down what could be a major Establishment Clause case yesterday, Doe v. Elmbrook School District. The case involves a Wisconsin school district’s decision to hold public high school graduation ceremonies inside an Evangelical church sanctuary. Relying on three different tests found in the Supreme Court’s Establishment Clause jurisprudence — the endorsement test of cases like McCreary, the coercion test of Lee and Santa Fe, and the no-proselytism test of Stone v. Graham — the Seventh Circuit ruled, en banc, that the ceremonies violated the Constitution. Here’s a good summation of the reasoning from the decision itself: “An unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbook Church.”
The case contains three strong dissents, including a not-very-thinly disguised cert petition by Judge Ripple and two quote-worthy excoriations of the Supreme Court’s Establishment Clause jurisprudence by Judges Easterbrook and Posner. I’m not sure the Court will actually grant cert, and if it does, I’d have to guess that Justice Kennedy, frequently the swing vote in Establishment Clause cases, would agree with the Seventh Circuit’s reasoning about coercion, anyway. But there’s a lot in the case to think about. I’d like to make just three quick observations here:
• Neutrality: the case makes clear that “neutrality,” both among religions and between religion and non-religion, remains the “touchstone” of Establishment Clause jurisprudence. In theory, the Supreme Court’s Read more
The Seventh Circuit has come down with a ruling that holding a public school graduation in a church violates the Establishment Clause when the church has an indeterminate number of religious icons and other material which run afoul of the standards that the Supreme Court has encrusted on the Establishment Clause. It was undisputed that the choice to hold the graduation in the church was made for the sake of convenience, price, and accommodation of the large number of students, and not for any religious reason. It was also undisputed that no reference was made to religion during the graduation ceremony.
Do read Judge Ripple’s sensible, moderate, and absolutely convincing dissent. But by far the most pungent lines appear in Judge Posner’s dissent — and boy are there a lot of them. Taking the prize:
The best that a judge of determined neutrality faced with a case such as the present one can do is to be guided by Gibbon’s aphorism (from chapter 2 of the Decline and Fall) that “the various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.” For “the Roman world” substitute “the United States” and for “the magistrate” substitute “the judge” and one has the right starting point for the analysis of this case. The judge should not be concerned with the truth or falsity of any religious faith but should regard the various faiths as “equally useful” from the standpoint of society, in recognition of the importance that Americans attach to religion, the diversity and intensity of their religious beliefs and observances, and the bitterness and strife that the government’s taking sides among competing faiths would engender.
Other memorable lines from Judge Posner’s dissent: