Posted on by Mark Movsesian

Wright on the Benefits of Religious Persecution

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.

Posted on by Mark Movsesian

McCrudden on Religion and Human Rights

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.

Posted on by Mark Movsesian

Yesterday’s High School Graduation Ruling: Three Quick Observations

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

Posted on by Marc O. DeGirolami

Seventh Circuit: Holding a High School Graduation in a (Richly Iconographically Religious) Church Violates the Establishment Clause

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:

Read more

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Adolphe on New Challenges for Catholic NGOs in Light of Caritas in Veritate

Jane Adolphe (Ave Maria School of Law) has posted New Challenges for Catholic-Inspired NGOs in Light of Caritas in Veritate. The abstract follows.

The non-governmental organization (NGO) is perceived not only as a disseminator of information, monitor of human rights, or provider of services, but also as a shaper of national, regional, and international policy. Many members of the lay faithful, working with others from various Christian denominations, have established NGOs to monitor and to promote the rights of the unborn, the natural family, and many other topics of common interest. These NGOs lobby at the national, regional, and international levels. This paper discusses the role of the Catholic-inspired NGO on the international level with reference to the thought of Pope Benedict XVI in his encyclical, Caritas in Veritate.

 

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Berger on The Aesthetics of Religious Freedom

Benjamin L Berger (York U. Osgoode Hall Law School) has posted The Aesthetics of Religious Freedom. The abstract follows.

What influence might legal aesthetics have on the shape of religious freedom? Focusing on time and space as foundational elements of the perception of phenomena, this paper argues that these aesthetic intuitions are an under-examined and yet elemental component of what conditions and shapes religious freedom in liberal constitutional orders. If one takes law to be a cultural form, attention to these basic facets of legal perception is essential to understanding law’s encounter with religion. Drawing from a range of examples in the Canadian jurisprudence, this paper shows that legal approaches to religious diversity, multiculturalism, tolerance, and accommodation are all subject to and framed by these aesthetic intuitions. To wonder about the possibilities open to us for responding to religious diversity through the law requires recognizing and wrestling with the temporal and spatial aesthetics of religious freedom.

Posted on by Marc O. DeGirolami

Italy Enters into “Intese” with Mormon, Pentecostal, and Orthodox Churches

This story reports that the Italian Senate has approved various “intese” (literally, “understandings”) or official agreements with three new religious institutions: the Church of Jesus Christ of Latter Day Saints; the Italian Apostolic Church (a Pentecostal church); and the Orthodox Church loyal to the Ecumenical Patriarchate.  The intese remain to be signed into law by the President of the Republic.

Italy’s church-state arrangements are quite different than those in the United States.  The story is useful because it also explains a bit about the nature and benefits of obtaining intese:

Italy has a system of concordates called “Intese” regulating the State’s relations with a number of religious bodies. Concordates provide inter alia for spiritual assistance in the military forces, hospitals, public schools and jails, and legal recognition of marriages performed by a priest or minister. An important feature is the possible entrance of the religious bodies with an “intesa” which so elects (they can, in fact, refuse this benefit) with a concordate into the 0,8% system. This is a peculiar Italian system where each taxpayer should devote 0,8% of his or her taxes either to a religious body or to the national public charity system by crossing the preferred institution’s case on the tax form. Unlike in Germany, if the taxpayer fails to cross a case he or she does not keep the money, that is divided between the different bodies according to their national percentage scores (unless they explicitly declare that they want to keep only the 0,8% of those crossing their name, and some religious bodies do just this). For example, if one does not cross any case and the Catholic Church case is crossed by 90% of those who crossed a case, and the Baptist Church by 2%, 90% of 0,8% of taxes paid by the non-crosser will go to the Catholic Church, 2% of 0,8% to the Baptist Church, and so on. Most Churches advertise through TV and other campaigns to capture the unchurched’s 0,8%.

This practice would violate the Establishment Clause in this country, but there is no such constitutional provision in Italy.  Religions which already have intese include: the Waldensians and Methodists, Seventh Day Adventists, Assemblies of God, the Jewish Communities, and the Baptists.  The Catholic Church has something more than an intesa: a concordat conferring on it additional status.

Posted on by Marc O. DeGirolami · 2 Comments

Religion and ‘No Shirt, No Shoes, No Service’

Here’s a rather slanted but interesting story from the New York Post yesterday describing the anger that “Hasidic Dress Codes” have elicited among members of the public who would like to frequent Hasidic businesses.  According to the story:

Ultra-Orthodox Jewish business owners are lashing out at customers at dozens of stores in Williamsburg, trying to ban sleeveless tops and plunging necklines from their aisles. It’s only the latest example of the Hasidic community trying to enforce their strict religious laws for everyone who lives near their New York enclave.   “No Shorts, No Barefoot, No Sleeveless, No Low Cut Neckline Allowed in the Store,” declare the English/Spanish signs that appear in stores throughout the Hasidic section of the hipster haven.

The story reminds me of what I saw on my recent trip to Rome.  The heavily underenforced rule for churches is that one should not enter without proper attire.  Shorts, sleeveless shirts, flip flops or sandals, and the like, are not appropriate for certain locations.  There is also often a stricture about making noise, and in the Sistine Chapel, the stricture was enforced.  When things got too loud, the guards would tell people to be quiet. 

Of course, these sorts of rules cause consternation and bafflement on the part of tourists and others who feel that they should be allowed to do as they please, and that any restriction on their freedom to bare their bodies or imprint the ugliness of their voices on the world around them at whatever decibel level they desire is a violation of the most fundamental rules of democratic society, or individual liberty, or the right to be me, or human agency, or whatever. 

That is in part why I very much disagree with the comments of Marci Hamilton, a law professor at Cardozo Law School, who said this with respect to the controversy in Brooklyn: “It’s further evidence of this era’s move toward Balkanization in the United States,” said Marci Hamilton, a First Amendment scholar at Cardozo School of Law. “It’s no longer sufficient that they have shared norms among themselves, they are increasingly trying to impose their norms on the rest of the culture.”

With respect, I believe that view gets things backward.  No one is compelling anyone to enter into any religious establishments against his or her will, or to wear anything that he or she would not otherwise want to wear.  Of course, if you choose to avail yourself of the goods and services at particular establishments, abiding by minimum standards of decorum set by the owners or operators of those establishments and which are part of the religious traditions of those establishments is hardly “un-American,” unless it is un-American to be polite and respectful of another religious tradition’s mores when one is actually voluntarily participating in the tradition’s very own institutions and establishments.  To the contrary, what is “un-American” is the compelled imposition of general mores and standards of behavior (such as they are) on the unwilling on the inside of their own religious establishments. 

Posted on by Marc O. DeGirolami

Gregg, “Human Rights as Social Construction”

There has for quite some time been an ongoing academic debate about where it is that one can properly ground the idea of human rights — what is its foundation or source?  Some prominent scholars say that a robust conception of human rights requires a specific sort of religious grounding; others forcefully deny that claim.  One will see radically different sorts of answers to the question, for example, in the work of Michael Perry (see his many books on human rights, as well as “The Morality of Human Rights: A Nonreligious Ground?”) and Joseph Raz (again, the best place is some of his more recent books, but a nice summary view is “Human Rights Without Foundations”). 

Here is a new entrant into these discussions: Human Rights as Social Construction (CUP 2012) by Benjamin Gregg (University of Texas), who seems to be arguing for the local roots of human rights — human rights from the ground up, as it were.  The publisher’s description follows.

Most conceptions of human rights rely on metaphysical or theological assumptions that construe them as possible only as something imposed from outside existing communities. Most people, in other words, presume that human rights come from nature, God, or the United Nations. This book argues that reliance on such putative sources actually undermines human rights. Benjamin Gregg envisions an alternative; he sees human rights as locally developed, freely embraced, and indigenously valid. Human rights, he posits, can be created by the average, ordinary people to whom they are addressed, and that they are valid only if embraced by those to whom they would apply. To view human rights in this manner is to increase the chances and opportunities that more people across the globe will come to embrace them.

Posted on by Marc O. DeGirolami

Roy, “Hinduism and the Ethics of Warfare in South Asia”

Here’s something at the intersection of religion and statecraft about the Hindu tradition of the philosophy of war (compare, e.g., just war theory in the Catholic tradition): Hinduism and the Ethics of Warfare in South Asia: From Antiquity to the Present (CUP 2012) by Kaushik Roy (Jadavpur University).  The publisher’s description follows.

This book challenges the view, common among Western scholars, that precolonial India lacked a tradition of military philosophy. It traces the evolution of theories of warfare in India from the dawn of civilization, focusing on the debate between Dharmayuddha (Just War) and Kutayuddha (Unjust War) within Hindu philosophy. This debate centers around four questions: What is war? What justifies it? How should it be waged? And what are its potential repercussions? This body of literature provides evidence of the historical evolution of strategic thought in the Indian subcontinent that has heretofore been neglected by modern historians. Further, it provides a counterpoint to scholarship in political science that engages solely with Western theories in its analysis of independent India’s philosophy of warfare. Ultimately, a better understanding of the legacy of ancient India’s strategic theorizing will enable more accurate analysis of modern India’s military and nuclear policies.