Thanks to Don Drakeman and Welcome to Kristine Kalanges!

We are thrilled to welcome Professor Kristine Kalanges of Notre Dame Law School to blog with us for the month of October.  Among her many accomplishments, Kristine has written a wonderful new book in comparative law and religion: Religious Liberty in Western and Islamic Law: Toward a World Legal Tradition (OUP 2012).  Here is the description:

In Religious Liberty in Western and Islamic Law: Toward a World Legal Tradition, Kristine Kalanges argues that differences between Western and Islamic legal formulations of religious freedom are attributable, in substantial part, to variations in their respective religious and intellectual histories. Kalanges suggests that while divergence between the two bodies of law challenges the characterization of religious liberty as a universal human right, the “dilemma of religious freedom” – the difficult choice between the universality of religious liberty rights and peaceful co-existence of diverse legal cultures – may yet be transformed through the cultivation of a world legal tradition. This argument is advanced through comparative analysis of human rights instruments from the Western and Muslim worlds, with attention to the legal-political processes by which religious and philosophical ideas have been institutionalized.

Thanks also, and again, to Don Drakeman, whose posts were unfailingly interesting and historically illuminating (his posts are available by clicking on his name at right).  We hope very much that he’ll agree to join us again sometime soon.

Some Comments About the District Court Decision Dismissing the Mandate Claim

The U.S. District Court for the Eastern District of Missouri has rejected the RFRA and Free Exercise claims of a Catholic who owns a closely held business with 87 employees.  You can get a summary of the decision here, though I must respectfully disagree with Professor Friedman about two things: (1) the district court’s opinion is not “extensively reasoned.”  The reasoning with respect to both the RFRA and Free Exercise Clause claims is shoddy and quite summary. (2) The fact that this judge was appointed by President George H.W. Bush is not relevant.  The political party of the president who appointed a district judge often pops up in media accounts of a particular decision, but it just is not material to a decision that the district judge issues some 20 odd years after the appointment.

Rather than go through the facts, which you can get at Professor Friedman’s site or by reading the short opinion, I thought I’d offer two critical comments about the decision.

1. The court makes the following claim, supported directly by no case law at all: “Laws substantially burdening the exercise of religion often discourage free exercise by exacting a price for religious practice: plaintiff must forfeit a benefit, pay a fine, or even face criminal prosecution.”  There is a good reason why the court cites nothing for this proposition: it is not the law.  The court goes on to discuss Wisconsin v. Yoder as somehow relevant to its view of the law.  But nowhere in Yoder does the Supreme Court say that the burden on religious conscience *must* be supported by a willingness of the religious claimant to suffer criminal prosecution (or a fine or the loss of a benefit).  There is a difference between a necessary and a sufficient condition, and it seems to me that this court has not perceived it.  I should think it would be a major revision of existing law under RFRA to require that a religious claimant be willing to suffer criminal punishment in order to deem his or her objection a “substantial burden.”

2.  Compare these two statements, both of which appear in succession in the opinion:

Statement #1: “[Plaintiff] is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”

Statement #2: “RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others.”

Here’s the comment.  If “RFRA is a shield, not a sword,” then why should RFRA protect a religious organization’s right to “discourag[e] employees from using contraception.”  Wouldn’t that be “forc[ing] one’s religious practices upon others.”  Wouldn’t such advocacy on the part of the employer, if protected  by RFRA, be an example of the use of RFRA as “a sword”?  And what exactly is the scope of the argument?  Can the Catholic Church use RFRA as a “sword” to protect its right not to offer contraception services in its health plans?  Or is this ill-conceived shield/sword metaphor limited to the context of secular employees who make religious freedom claims under RFRA? 

Offensive Speech in NYC

Living in New York City, one develops a taste for irony. This past week, residents were treated to an unusually good display. In remarks at the UN on Tuesday, President Barack Obama gave an eloquent defense of American free speech principles, which prohibit government from restricting religiously offensive speech as long as there is no threat of imminent violence. Government may state its own views, however, and President Obama roundly condemned, on behalf of the US Government, “The Innocence of Muslims,” that “crude and disgusting video” that has “sparked outrage throughout the Muslim world.” In a widely quoted passage, the President declared,

The future must not belong to those who slander the Prophet of Islam.  But to be credible, those who condemn that slander must also condemn the hate we see in the images of Jesus Christ that are desecrated, or churches that are destroyed, or the Holocaust that is denied.

Now, as it happens, at a swanky gallery near where President Obama was speaking, an exhibition of Andres Serrano’s Piss Christ, the infamous photograph of a crucifix submerged in a glass of urine, was under way. Neither President Obama nor anyone else in his administration, as far as I know, thought that credibility required them to condemn this particular example of religiously offensive speech. Why not? Because, of course, nobody was complaining about it, much less rioting. (That’s not quite  Read more

Drakeman on Original Intent, Original Meaning, and Religious Liberty

I’ve enormously enjoyed Don Drakeman’s posts, and had questions for the readership here (and for Don!) about this post involving original meaning and original intent.  Don raises a number of points that I’ve been having a hard time wrapping my mind around with respect to the contemporary discussion of new (or new new) originalism.  First, are there still advocates (besides Don) of the utility of original intent originalism floating about?  I think there are (Larry Alexander comes to mind, and I have a memory of something on this by Steve Smith, too) but they seem to be grossly (and increasingly?) outnumbered by original meaning originalists.  I should also note that Don, from my reading of his work, is not exclusivist about original intent.  He simply thinks it might be useful evidence to consider.  Second, is what Don says about the equivalence between the substantial underdeterminacy of original meaning originalism and original intent originalism accepted by original meaning originalists (see Don’s example about the varying interpretations of establishment in Massachusetts and New Hampshire, and for more examples, see his book)?  There may, of course, be reasons to opt for original meaning over original intent (though the hypothetical time-traveling law professor analogy presents its own problems), but isn’t Don right that mitigating the problems of underdeterminacy surely is unlikely to be one of them?

Call for Papers: Family, Marriage and Love in Eastern Orthodoxy

The Sophia Institute will host a conference, “Family, Marriage and Love in Eastern Orthodoxy,” at Union Theological Seminary in New York on December 7. The call for papers invites legal perspectives on the subject. Details are here.

Harris, “The Serpentine Wall: The Winding Boundary between Church and State in the United States”

This January, Transaction Publishers will publish The Serpentine Wall: The Winding Boundary between Church and State in the United States by James F. Harris (College of William and Mary). The publisher’s description follows.

The Serpentine Wall is chronologically structured, befitting a history of church-state separation in the United States. It begins with a history of ideas approach to the European backgrounds and colonial American experiments in theocracy and freedom of religion. It covers pre-modern American debates about religious freedom among the founding generation right up through the nineteenth century. The final section of the book focuses on the separation of church and state and how this has become a matter determined by the Supreme Court.

The resolution of the proper interpretation of the religious clauses of the First Amendment and the course of the boundary between church and state has been slow. Many changes that took place throughout the nineteenth and the first half of the twentieth century have influenced the increasingly circuitous route taken by the Serpentine Wall between the two. The result has been an increased focus on social issues involving questions of interpretation of the establishment and free exercise clauses of the First Amendment.

The founding of the United States was a unique event in human history and the result of factors that are unlikely to be repeated. To understand the founding of a democratic country with a unique arrangement between church and state, it is important to view that development as both a product of and a departure from what had come before. Harris’ interesting, unique, philosophical viewpoint will be important to those interested in how the roles of church versus state have evolved in the United States.

Jury Nullifies Charges Against Rastafarian Accused of Growing Marijuana

Last week, a New Hampshire jury nullified criminal charges brought against a 59 year-old Rastafarian accused of growing 15 marijuana plants near his home.  The defendant, Doug Darrell, claimed that the marijuana was used as part of his religious practices. The defense attorney sought a jury nullification instruction and it was granted by Belknap County Superior Court Judge James O’Neill. According to one report, the judge gave the following instruction: “Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.” The marijuana plants were spotted by a National Guard helicopter as part of a coordinated operation with NH State Police.

This case raises questions as to whether jury nullification is a viable way to protect the rights of religious minorities from criminal prosecution. Read one way, this case may suggest that jury nullification is a tool for local communities to protect the rights of such minorities from the unintended consequences of a generally applicable law. Rastafarianism is by no means a popular religion in the US (I daresay this is especially true in the Granite State), and I doubt that NH legislators had the religion in mind when they passed the law prohibiting marijuana possession. Yet a group of twelve citizens decided not to apply the neutral, generally applicable law (see Employment Division v. Smith) because it substantially burdened one adherent’s beliefs.

Read another way, jury nullification only worked here because of a number of other factors, unrelated to Mr. Darrell’s religion. In fact, one juror stated that Mr. Darrell’s religion had nothing to do with the jury’s decision. One cannot ignore, for example, the fact that this case involved a criminal act many people are familiar with and do not consider wrongful (i.e. growing marijuana for personal use). I wonder if the jury would have nullified had Mr. Darrell been a member of the Santeria religion charged with animal cruelty (see Church of Lukumi Babalu Aye v. City of Hialeah). Another aspect is the personal story involved. Mr. Darrell is a 59 year-old, mild-mannered man who has been married for 38 years and has 4 grown children, who are “successful in their fields.” Again, I wonder if the jury would have nullified had Mr. Darrell been a loud, unrepenting agitator, arrested while picketing military funerals (See Snyder v. Phelps).

Jury nullification, therefore, seems like one way to protect religious minorities from prosecution. However, whether a jury will actually do so depends much less on the lofty ideals of respect for religious freedom or diversity and more on the mundane issues of familiarity and likeability.

Ibrahim, “Practicing Shariah Law: Seven Strategies for Achieving Justice in Shariah Courts”

This August, ABA Publishing (American Bar Association) published Practicing Shariah Law: Seven Strategies for Achieving Justice in Shariah Courts by Hauwa Ibrahim (Saint Louis University School of Law). The publisher’s description follows.

Practicing Law in Shariah Courts: Seven Strategies for Achieving Justice in Shariah Courts describes the Shariah courts of Northern Nigeria, and offers advice for counsel practicing in Shariah courts worldwide, particularly in cases involving women.

In this important book, you’ll find insight into practicing law in Shariah courts, and some questions that arise from being on the field, from the authors experience of seeking justice under these laws both legally and spiritually.

The introduction of new Shariah in Northern Nigeria in 1999 set in place a delicate and flexible boundary between the rule of law and individual interpretations of the Law that are unjustifiably causing individual and social ills. This important book is part of a dialogue for learning the terrain and how best to work around the disparities in the new Shariah, exploring ethical issues drawn from various sources, including the Holy Qur’an, Hadith, and Sunnah. Although their application is discussed within the legal contour of Shariah law in Northern Nigeria, the strategies are not confined to any one framework of reference and may be a valued resource to many.

The book contains the author’s reflection of her experiences while defending clients in Shariah courts. It is a book written by a legal practitioner, sharing the strategies and resources that have served her well throughout her career. The multilayered composition of this book, weaving together Islamic law, national laws, international treatises, and religious texts is intent on providing lawyers all possible avenues for drafting a defense strategy that reflects the integrity of Shariah and upholds the values of the community.

Since their implementation and subsequent codification from 2000 to 2003, Shariah law codes have been regularly amended. This book reflects the latest of the amendments known to the author. The strategies and resources outlined in this book move past them and look toward the overarching ideal of justice and fairness, placing them in a space that sustains the functional character of the work.

Things I Haven’t Figured Out — Part 3: Where’d the Framers Go?

Over the last couple of years, I’ve had the chance to talk about my church-state book at a few law schools.  At least twice, a distinguished Con Law professor responded along the lines of, “Sure, that may be what the establishment clause meant to the people who adopted it, but that’s not what we mean by ‘original meaning.’”

Around many law schools these days, “original meaning” has nothing to do with the people we often call the Framers.  Rather, the core of modern originalism is the search for “objective public meaning” – that is, what an average or reasonable person at the time would have understood the text to mean.  Some even point to a hypothetical ratifier with full knowledge of all the circumstances (essentially, in my view, a time-traveling law professor).

So what happened to the Framers?  Basically, they’ve been expelled along with all forms of “intentionalism,” now known as the Old Originalism of the “undertheorized” past.  Too many Framers for one intent, it seems.  And, besides, as Justice Scalia often points out, it’s often easy to find some Framer whose policy choices are the same as yours, thus allowing too much results-driven analysis.

These are good criticisms.  Just look at how the Supreme Court latched onto Madison and Jefferson to build its wall of separation jurisprudence without considering what anyone else might have thought.

What I find perplexing is that people believe that the hunt for objective public meaning avoids these problems.  Let’s look, for example, at the system of town-based taxes for Read more

Pandya, “Muslim Women and Islamic Resurgence”

Next Month, I. B. Tauris Publishers will publish Muslim Women and Islamic Resurgence: Religion, Education and Identity Politics in Bahrain by Sophia Pandya (California State University Long Beach).  The publisher’s description follows.

Bahrain’s tumultuous political landscape often overshadows the societal upheavals that this tiny country is facing. Sophia Pandya cuts through this to examine how international Islamic revivalism coupled with increased secular education has impacted Muslim women’s religious practice and public position. She unsettles assumptions that education is a secularising force for Muslim women, showing that modern education among Bahraini women has in fact deepened both their engagement with Islam and their political participation. Uncovering what transpires when newly educated women have the opportunity to reinterpret religion and gain access to the work place and the political arena, Pandya sheds light on the complex intersections between women and public life, education and Islam. This book provides great insights into religious women’s efforts towards self-determination within conservative Islamic movements as well as the impact of globalisation and wider economic and political developments in Bahrain.