John D. Haskell (Int’l U. College of Turin, Durham Law School) has posted Divine Immanence: The Evangelical Foundations of Modern Anglo-American Approaches to International Law (the full-text article may be behind a paywall). The abstract follows.
In this article, I hypothesize that against mainstream secularization accounts concerning the 19th-century development of modern international law, especially within the Anglo-American experience, the discipline was significantly influenced by liberal Protestantism. My argument is that a liberal Protestant cultural elite, to which the first generation of international jurists belonged, drew inspiration from the theological doctrine of divine immanence to solidify their socio-political authority against a diverse series of internal and external threats. In an attempt to demonstrate the evangelical foundations of modern international law and the importance played by Anglo-American legal scholars within the tradition, the article is organized into three sections. First, I examine traditional 19th-century narratives of international law, particularly in relation to Christianity. Second, I trace out how the doctrine of divine immanence was formulated in Liberal Protestant theology and how this influenced international legal scholarship within the period in relation to doctrines of the nation-state. Third, I examine how divine immanence shaped three anxieties shared by liberal Protestant theologians and international jurists, including former colonized people and institutions, Roman Catholic beliefs and immigrant populations, and the nascent industrial working-class and radical political ideologies. The article concludes with some brief reflections on the implications of this study and potential directions for future research in the field of religion and international legal history.
Robin F. Wilson (Washington and Lee U. School of Law) has posted The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and other Clashes Between Religion and the State. The abstract follows.
This Article considers a burning issue in society today—
whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political
maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion
and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate same-sex marriages. In all these contexts, religious objectors claim a special
right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and
may impose significant costs on others. Legislators and other policymakers have struggled with how to advance two compelling, and at
times conflicting, values—access and religious liberty. This Article examines, and responds to, a number of “sticking points” voiced by legislators
about a qualified exemption for religious objectors to the duty to facilitate same-sex marriages—concerns that bear an uncanny resemblance
to reasons why some believe the Obama administration should not yield
further on the contraception mandate. This Article maintains that religious accommodations qualified by hardship transform what could be a zero- sum proposition into one in which access and religious freedom can both be affirmed.
At my panel at the Federal Bar Council retreat this past weekend, someone from the audience asked the following question. After Hosanna-Tabor, last term’s Supreme Court decision endorsing the ministerial exception to the employment discrimination laws, what happens to tort claims by clergy against their churches? For example, what if a priest sues his church for defamation? Would Hosanna-Tabor bar such an action?
It turns out this is a real, live case. The New York Times reports that a defrocked Catholic priest, Charles Kavanaugh, has sued the Archdiocese of New York for defamation. Kavanaugh alleges that the archdiocese libeled him when it stated in a recent press release that a church tribunal had found him guilty of multiple counts of sexual abuse. Kavanaugh says this statement is untrue. The details aren’t really important here. The question is whether Hosanna-Tabor bars Kavanaugh’s suit.
The short answer appears to be no. The Hosanna-Tabor Court expressly declined to decide whether the ministerial exception barred “actions by employees alleging . . . tortious conduct by their religious employers.” So the question remains open. Would the logic of the ministerial exception bar a claim like Kavanaugh’s? It wouldn’t seem so. Kavanaugh does not seek to be returned to the ministry or even damages for wrongful dismissal. If he wins, a victory would have absolutely no effect on what Hosanna-Tabor says is the principal concern underlying the ministerial exception: a church’s ability to select those who will lead it and express its message. Of course, if Kavanaugh’s claim turns on some matter of religious doctrine, for example, whether he was espousing authentic Catholic teaching, that would be different. Civil courts are not going to get entangled in that sort of dispute. But courts should be able to decide a straight-up defamation claim on neutral principles of law. I don’t think Hosanna-Tabor poses a problem here.