Bruce Ledewitz (Duquesne University – School of Law) has posted Toward a Meaning – Full Establishment Clause Neutrality. The abstract follows.
Some form of government neutrality toward religion, in contrast to a more pro-religion stance or a turn toward nonjusticiability, is the only interpretation of the Establishment Clause that can potentially lead to a national consensus concerning the proper role of religion in American public life. But to achieve that goal, neutrality theory must acknowledge and engage the need for the expressions of deep meaning on public occasions and in the public square generally. Current neutrality doctrine promotes a silent and empty public square. This article proposes an interpretation of neutrality that would allow a symbol-rich, meaning-full public square without violating theEstablishment Clause. While such morally substantive symbolic government speech is more easily justified as neutral when religious imagery is avoided, even the utilization by government of traditional religious language and symbols may be understood as neutral toward religion as long as the overall content of the public square is not religious. This more vibrant form of government neutrality invites more, rather than less, expression into public life. The article utilizes the context of legislative and high school graduation prayer to illustrate the difference between current neutrality doctrine and meaning-full neutrality.
There has been a curious silence in the news and on the blogs about the preliminary injunction in Newland v. Sebelius. True, there are some unique issues involving the nature of the plaintiffs, but the case may indicate the direction that courts which get over the ripeness hump and do reach the RFRA claim might tend (and, as in all things, ripeness will come with time). Here are two questions that interested me.
First, on the issue of substantial burden, I was struck by the fact that Judge Kane did not really answer the question at all. He seemed to assume the substantial burden — or perhaps to hold the “difficult questions” about substantial burden in abeyance. One of those difficult questions, he said, was: “Can a corporation exercise religion?” Three reactions:
- The answer to this question, posed in this way, must be yes. The Catholic Church is a non-profit corporation, and it certainly can exercise religion — the free exercise component of the holding in Hosanna Tabor would make no sense if it and other religious non-profits could not. Indeed, some folks have made something like the claim that corporate free exercise, rather than individual free exercise, is the foundational right.
- Though the doctrine is controversial, we do say that corporations have rights of free speech. See Citizens United. If a corporation can speak in a way that is protected by the Speech Clause, why can it not exercise religion in a way that is protected by the Free Exercise Clause? And by extension, why can it not suffer substantial burdens on its free exercise under RFRA?
- Still, there is an interesting issue about who is exercising religion when what we’ve got is a publicly traded corporation. Suppose the shareholders do not care at all about the religious issue that the corporation has taken a stand on. What does it mean to say in that circumstance that the corporation is exercising religion?
Second, I was surprised at the court’s skepticism with respect to the question of compelling interest.
From PRI’s “The World,” an interview with the Syrian Orthodox Archbishop of Aleppo, Mar Gregorios Yohanna Ibrahim, on the precarious state of that city’s Christians, who are trying to negotiate a neutral status in Syria’s civil war. “They are talking about the change of the President,” Mar Gregorios explains, “but they don’t tell us who is coming to rule this country. Anything could happen . . . for example, the fanatics [may] come and control the country. We need to hear that nothing will happen to the Christians in Syria.”
Georgetown’s Thomas Farr assesses the latest State Department Annual Report on International Religious Freedom, issued in Washington this week with much fanfare by Secretary Hillary Clinton and Ambassador-at-Large Suzan Johnson Cook. The report, Farr says, lives up to its reputation as “the gold standard” in the field and will, as always, be helpful to scholars, the media, and policy experts. But, Farr continues, there’s also some “bad news”:
Johnson Cook has little authority, few resources, and a bureaucracy that is — notwithstanding the secretary’s fine words — largely indifferent to the advancement of international religious freedom. Unlike other ambassadors-at-large (Global Women’s Issues, Global AIDS), Johnson Cook does not report to the Secretary, but is several levels removed from Clinton. The IRF ambassador controls virtually no resources for IRF programs, and is not present in senior policy meetings involving those countries or any others. A quick look at the “U.S. Policy” sections of the reports will tell you that we have little in the way of a coordinated IRF strategy for any of these countries. It doesn’t take a rocket scientist to realize that this issue is not a priority for this administration, except perhaps for the speechwriters (who are doing an outstanding job).
Read Farr’s complete assessment here.
An interesting looking history of the difficult relationship between the Catholic Church and China, The Catholic Church in China: 1978 to the Present (Palgrave Macmillan 2012) by Cindy Yik-yi Chu (Hong Kong Baptist University). The publisher’s description follows.
This book traces the history of the Catholic Church in China since the country opened up to the world in December 1978. It comprehensively studies the Chinese Catholic Church on various levels, including an analysis of Sino-Vatican relations, the control over the Catholic Church by the Beijing government, the supervision of local Church activities, and the consecration of government-approved bishops, the formation of priests, and the everyday lives of Chinese Catholics.
Here’s a new entry in the increasingly popular bellicose secularist genre: Nonbeliever Nation: The Rise of Secular Americans (Palgrave Macmillan 2012) by David Niose. The publisher’s description follows.
Today, nearly one in five Americans are nonbelievers – a rapidly growing group at a time when traditional Christian churches are dwindling in numbers – and they are flexing their muscles like never before. Yet we still see almost none of them openly serving in elected office, while Mitt Romney, Rick Santorum, and many others continue to loudly proclaim the myth of America as a Christian nation.
In Nonbeliever Nation, leading secular advocate David Niose explores what this new force in politics means for the unchallenged dominance of the Religious Right. Hitting on all the hot-button issues that divide the country – from gay marriage to education policy to contentious church-state battles – he shows how this movement is gaining traction, and fighting for its rights. Now, Secular Americans—a group comprised not just of atheists and agnostics, but lapsed Catholics, secular Jews, and millions of others who have walked away from religion—are mobilizing and forming groups all over the country (even atheist clubs in Bible-belt high schools) to challenge the exaltation of religion in American politics and public life.
This is a timely and important look at how growing numbers of nonbelievers, disenchanted at how far America has wandered from its secular roots, are emerging to fight for equality and rational public policy.