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Tebbe on Government Endorsement and Disparagement

Nelson Tebbe (Brooklyn Law School) has posted Government Endorsement and Disparagement. The abstract follows.

What are the constitutional limits on government endorsement? Recently, a sense has been spreading that when the government speaks on its own account, it faces few restrictions. That impression has been fed by two doctrines and their accompanying literatures. First, the Court’s cases developing the government speech doctrine have implied that the only constitutional restriction on government expression is the Establishment Clause, and scholars have adopted that assumption. Officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Second, experts on religious freedom likewise have assumed that there is no secular Establishment Clause. So the belief that government is free to endorse and denigrate secular ideas is common, thanks in part to the Supreme Court and in part to scholarship on free speech and religious freedom. But it is mistaken. In this Article, I argue that in fact the Constitution properly limits government endorsement through multiple provisions. I give examples of situations where official expression runs up against such limitations, including racialized speech, electioneering, same-sex marriage exclusions, political gerrymandering, and messages concerning reproductive decisions. Limits in these areas are grounded in equal protection, due process, and free speech itself. Together, my examples suggest a constitutional theme, government nondisparagement, that has been overlooked. Drawing out that theme, I suggest new contributions to theoretical debates surrounding political morality, free speech, and religious freedom.

Posted on by Marc O. DeGirolami

Haidt, “The Righteous Mind”

Jonathan Haidt has been doing extremely interesting work at the intersection of psychology, ethics, politics, and sociology.  That is in part why I am very much looking forward to reading his recently published book, The Righteous Mind: Why Good People Are Divided by Politics and Religion (Random House 2012).  The publisher’s description follows.

Why can’t our political leaders work together as threats loom and problems mount? Why do people so readily assume the worst about the motives of their fellow citizens? In The Righteous Mind, social psychologist Jonathan Haidt explores the origins of our divisions and points the way forward to mutual understanding. 

His starting point is moral intuition—the nearly instantaneous perceptions we all have about other people and the things they do. These intuitions feel like self-evident truths, making us righteously certain that those who see things differently are wrong. Haidt shows us how these intuitions differ across cultures, including the cultures of the political left and right. He blends his own research findings with those of anthropologists, historians, and other psychologists to draw a map of the moral domain, and he explains why conservatives can navigate that map more skillfully than can liberals. He then examines the origins of morality, overturning the view that evolution made us fundamentally selfish creatures. But rather than arguing that we are innately altruistic, he makes a more subtle claim—that we are fundamentally groupish. It is our groupishness, he explains, that leads to our greatest joys, our religious divisions, and our political affiliations. In a stunning final chapter on ideology and civility, Haidt shows what each side is right about, and why we need the insights of liberals, conservatives, and libertarians to flourish as a nation.

Posted on by Mark Movsesian

Ozment on Lutheranism and Eurobonds

A few weeks ago, I noted an essay by Estonian president Toomas Ilves hinting that religion may have something to do with Europe’s inability to agree on a solution to its fiscal crisis. Thrifty, rule-abiding Northern Protestants, Ilves suggested, do not like the idea of sending money to profligate Southern Catholics who think the rules about not spending what you don’t have don’t apply to them. Here’s another essay, by Harvard historian Steven Ozment, arguing that the roots of Northern unwillingness to bankroll the South lie in the Protestant Reformation. Germany’s refusal to agree to eurobonds, Ozment writes, reflects the Lutheranism that, notwithstanding “the forces of multiculturalism and secularism,” still informs German culture:

How little has changed in 500 years. The German chancellor, Angela Merkel, a born-and-baptized daughter of an East German Lutheran pastor, clearly believes the age-old moral virtues and remedies are the best medicine for the euro crisis. She has no desire to press a Read more

Posted on by Marc O. DeGirolami

ABA Blog 100 Competition, and Marking a Birthday

Each year the American Bar Association Journal compiles a list of the 100 best legal blogs, and invites blog readers to use the form at this link:

to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about. Or if you don’t have particular blawgs in mind but think blawgs from certain practice areas should be represented in the Blawg 100, you can use this form to let us know which ones. If there is more than one blawg you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit. Friend-of-the-blawg briefs are due no later than Sept. 7, 2012.

CLR Forum is a relatively new blog — we just passed our 1 year anniversary on August 11 (insert tooting horn noise).  But in that year we’ve worked to bring — and greatly enjoyed bringing — our readers a range of scholarly, doctrinal, and cultural stories about law and religion issues in the United States and abroad.  Our readership has grown from a few dozen folks to an average of a few hundred per day, for which we are very grateful.  We invite any readers who think our blog belongs in the top 100, or who have a different favorite legal blog, to participate in the ABA’s selection process.

Thanks for reading, and here’s to the beginning of a new year.

Posted on by Marc O. DeGirolami

District Court: Prohibiting Religious Groups From Feeding the Homeless in Park Likely to Violate Pennsylvania RFRA

Here’s an interesting case from Philadelphia involving the religious mission to feed the homeless.  The City of Philadelphia enacted a local ordinance prohibiting the distribution of food free of charge to three or more people anywhere in the Fairmont Park System (picnics for individual families, school trips, and so on, as well as special events, were exempted from the ordinance).  The City’s reasons for the ordinance had to do with civil order, sanitation, and also an asserted dignitarian interest on behalf of the homeless.  Several Christian religious groups had for decades distributed food to the homeless in the parks, but the mayor wanted these programs moved indoors.  A temporary relocation effort of one of the religious groups’ food-sharing programs resulted in a drastic reduction in the number of homeless people who partook of the food-sharing services.

Plaintiffs sought a preliminary injunction prohibiting the City from enforcing the ordinance, alleging that the ordinance violated their rights under the Pennsylvania Religious Freedom Protection Act (PRFPA), which is essentially Pennsylvania’s version of the federal Religious Freedom Restoration Act, as well as the First Amendment.  Readers will know that RFRA (as well as PRFPA) reinstated the interest-balancing test which preceded Employment Division v. Smith.  (One interesting feature of PRFPA is that it requires “clear and convincing evidence” as its standard for the “substantial burden” component).

The Court granted the preliminary injunction on PRFPA grounds (it avoided the constitutional issue).  It held that the plaintiffs (1) have a sincere belief that it is their religious obligation to “provide sustenance to the poor and needy” (and, added the Court, “Plaintiffs are not unique in this respect.  Acts of charity are central to Christian worship”); (2) the ordinance constitutes a “substantial burden” on the free exercise of plaintiffs’ religion; (3) the dignitarian “compelling interest” offered by the City was “difficult to comprehend”: “I am at a loss to understand how taking choice away from the homeless advances their dignity”; (4) even if reducing litter and other waste is a “compelling interest” (about which the Court expressed some skepticism), the City had not used the least restrictive means to achieve that interest (portable restrooms, trash compactors, additional maintenance staff, and other methods were raised by the Court).

One noteworthy item, which may have various broader applications.  In response to the City’s claim that it did not burden the plaintiffs’ free exercise because it did not impose “restrictions upon praying or preaching or reading the Gospel or engaging with the homeless [in the Park],” the Court said:

What defendants fail to appreciate is that to plaintiffs, sharing food with the poor is as much a form of religious worship as is prayer, preaching, or reading the Bible . . . . But defendants’ argument is not persuasive for an additional and more fundamental reason. Essentially, defendants have assumed the authority to ascribe [to] some of plaintiffs’ religious activities more religious significance than others, irrespective of the significance that plaintiffs themselves ascribe to their own religious activities. Defendants compound this error by offering to grant Rev. Little a limited exception for the food and drink she uses during her Communion service, which they characterize as a “core component of a religious service,” but not for the food Rev. Little shares with the homeless after the service despite the fact that Rev. Little considers this food an ongoing representation of the Communion observed during the service . . . . It is no more appropriate for defendants to “presume to determine the place of a particular belief in a religion” than it would be for me to do so.
 
The case is Chosen 300 Ministries, Inc. v. City of Philadelphia, 2012 WL 3235317 (E.D. Pa. Aug. 9, 2012). 
 
Posted on by Mark Movsesian

The Wall Street Journal on Syria’s Christians

An interesting piece in today’s Wall Street Journal about the dire situation of Syria’s Christians, “Can Syria’s Christians Survive?” The secularism of the Assad regime has provided a space for Christians, mostly Catholic and Orthodox, who make up roughly 10% of Syria’s population. The opposition “Free Syrian Army,” made up principally of Sunni Muslims, has murky ties to Islamists, and Christians worry what will happen to them if Islamists ever gain power – as Islamists have done in other Arab Spring revolutions, like Egypt’s. One possibility the article suggests is a restoration of classical dhimmi restrictions on Christians. (I’m not sure where the reporters got that idea; even the Muslim Brotherhood in Egypt hasn’t seriously proposed restoring the dhimmi rules). The more likely outcome is that Christians will be caught in a crossfire between Sunnis and Alawites — the sect to which the Assad family belongs, which Sunni Islam sees as heretical — and be forced to leave the country, as Iraq’s Christians did in the last decade.

Posted on by Marc O. DeGirolami

Slessarev-Jamir on the Rhetorical Artifice of Religious Conservatives on the Gay Marriage Question

Helene Slessarev-Jamir (Claremont Lincoln University School of Theology) has posted Religious Conservatives’ Success in Constructing Gay Marriage as a Threat to Religious Liberties.  Rather than posting the abstract, which you can see simply by clicking on the link, it may be more helpful to post some selections from this short but intensely felt paper.  Those selections follow.

In this country, an exclusivist, patriarchal construction of religion has positioned itself as the principal crusader against the legalization of gay marriage by essentially claiming the gays and lesbians are not created in God’s image. Yet, the role of religion in the on-going debate is complexified by the gradual emergence of alternate, inclusive religious voices that publicly support gay marriage . . . .

Conservative religious strategists have won their campaigns against marriage equality by raising the specter of possible infringements against the religious liberties of those families, individuals, and institutions that oppose gay marriage were state governments to grant legal status to gay marriage. In the US, the defense of heterosexual couples’ religious liberties has become the principal trope in the campaigns against the right to same sex marriage, thereby legitimating the defense of traditional marriage by claiming that it is the embodiment of an ideal that many Americans perceive as sacrosanct. Thus, a vote to maintain discriminatory laws against same sex couples by denying them the right to marry is effectively recast as a patriotic defense of American liberty and freedom of belief, both of which are regarded as sacred values rooted in this nation’s founding principles . . . .

Read more

Posted on by Marc O. DeGirolami · 2 Comments

Rakove Reviews Tsesis on the Declaration of Independence

I have not read Alexander Tsesis’s new book about the Declaration of Independence.  From this review by Jack Rakove, though, it appears that Professor Tsesis makes some “powerful moral claims” about the nature and scope of the “self-evident” “truth[]” “that all men are created equal.”  I have always been struck by the powerful religious text grounding the various principles enunciated in the Declaration, but at a quick glance, it does not seem that Professor Tsesis makes very much of this (though perhaps there are portions of the book where this text is discussed).  He does (again, according to Professor Rakove’s review) appear to advance the claim that the Constitution needs to be amended and updated to reflect a core egalitarian creed that he reads into the Declaration.  Professor Rakove has this to say:

In short, Tsesis collapses into the Declaration a host of claims that text and context simply cannot support, assigning to it qualities and purposes it was not originally intended or understood to possess. His most basic misunderstanding goes to the great equality principle that Jefferson condensed into “all men are created equal.” Americans have long read that to mean that we are or should become equal to one another as citizens. That, in effect, is how we have democratized the Constitution since 1776—as Tsesis ably demonstrates. When inequalities are perceived and become objectionable, we cite the Declaration in support of our leveling claims. Often we do that not merely because the inequalities are unjust in themselves, but also because we believe that the Declaration instructs us to oppose them. But the intended meaning of 1776 was never about inequality within American society. It was instead a statement that Americans as a people, as a collective whole, were equally endowed with other peoples with the right to oppose tyranny, to “alter and abolish” unjust governments and establish new governments in their stead. This form of equality means little to us now, but in the revolutionary circumstances of 1776, that was the equality Americans needed to assert.

Posted on by Mark Movsesian

Dillon, “The Justice of Constantine”

For most church-and-state types, the word “Constantine” is likely to evoke the so-called “Constantinian Compromise,” in which the Christian Church in the late Roman Empire purportedly accepted imperial protection in exchange for subordination.  When he wasn’t convening church councils, though, Constantine had other affairs of state to attend to, including the workings of the Roman legal system. John Noël Dillon (University of Exeter) has a new study of Constantine’s contributions to Roman law, The Justice of Constantine: Law, Communication, and Control (University of Michigan Press 2012). The publisher’s description follows.

As the first Christian emperor of Rome, Constantine the Great has long interested those studying the establishment of Christianity. But Constantine is also notable for his ability to control a sprawling empire and effect major changes. The Justice of Constantine examines Constantine’s judicial and Read more