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Haskell on the Evangelical Foundations of Modern Anglo-American Approaches to International Law

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.

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Wilson on The Calculus of Accommodation

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.

Posted on by Mark Movsesian

Clergy Libel Suits and the Limits of Hosanna-Tabor

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.

Posted on by ddrakeman

Things I Haven’t Figured Out — Part 1: Delayed Reactions

Patrick Dineen has an excellent article, “Cities of Man on a Hill” in the inaugural issue of an important new journal, American Political Thought.  His take on the various types of American exceptionalism is definitely worth reading.  But, for today’s purpose, it provides a chance to think briefly about John Winthrop’s iconic sermon that gave us the oft-quoted concept of a “city on a hill.”

A couple of years ago, the Witherspoon Institute sponsored a church-state seminar, and we were reading Winthrop’s “Modell of Christian Charitie.”  Called the greatest sermon of the millennium by Harvard’s University Preacher, it is one of the most anthologized works of American literature.  All of us who went to school in the U.S. undoubtedly had to read it, and we learned that Winthrop delivered it on the Arabella, the ship bringing the early Puritans to the New World.

What I found amazing, when I looked in to it, was that Winthrop’s sermon has had enduring effects on presidents and preachers, but it doesn’t appear to have moved his listeners.  Winthrop’s most recent biographer tells us that, despite the Puritans’ penchant for leaving an impressively abundant documentary record, “not a single individual recorded in a letter, diary, or other source having heard Winthrop deliver the sermon.”  In fact, early Puritan historians, including one who sailed on the Arabella with Winthrop, never mentioned the sermon.  (See Francis Bremer, John Winthrop: America’s Forgotten Founding Father (2005).)

I’m not sure what that tells us other than, perhaps, it takes a while to find out what will stand the test of time, much as Roger Williams’ religious liberty writings were virtually unheard of in America until they were discovered a century later and used to great effect by Isaac Backus and other Baptists.

One final thought: at the end of Winthrop’s sermon, he talks about a covenant (i.e., essentially a contract) between the Massachusetts Bay Company and God.  What do you think the terms were?

Don Drakeman

Posted on by Mark Movsesian

Movsesian at the Federal Bar Council

This weekend, I participated in the Federal Bar Council’s 2012 Fall Bench and Bar Retreat in Skytop, Pennsylvania. I spoke on a panel, “First Amendment: The State of Freedom of Religion in 2012,” which addressed the ministerial exception, the contraception mandate, and Judge Preska’s recent opinion in the Bronx Household case. My fellow panelists were Judge Raymond Dearie (EDNY), Professor Kent Greenawalt (Columbia), and attorneys Gregory Lipper (Americans United for the Separation of Church and State) and Eric Rassbach (The Becket Fund). Thanks to the Council, and especially program coordinators Brad Glick, Linda Goldstein, and Steve Weyer for inviting me.

Posted on by ddrakeman

Things I Thought I Knew — Part 3: The Antifederalists and Religion

 

In the last few decades, the Antifederalists have surged, partially because they look like the patron saints of small government, and, for our purposes, because they have been held up as recognizing the importance of religion for the health of a republic.

“[M]any Antifederalists,” according to Herbert Storing, “were concerned with the maintenance of religious conviction as a support of republican government.” And he should know. Storing was not only the dean of Antifederalist scholars, he created a 7 volume canon called (perhaps over-optimistically), The Complete Antifederalist.  Since Storing’s book is all about the constitutional debates, it’s hard not to assume that he meant that they were looking for ways for the federal government to support religion.

But, what I found perplexing, when I looked into it, is that even he has trouble documenting his statement about “many Antifederalists.” In all 7 volumes, he only has one Antifederalist, Charles Turner of Massachusetts,” talk about the importance of “Christian piety and morals” to the country.  Storing bolsters this statement with a letter by another Massachusetts writer who wasn’t an Antifederalist, and a Virginia writer who wasn’t talking about the Constitution.

To be sure, many Antifederalists did think religion was important to republican government; they shared that belief with many Federalists. The point is that very few Feds or Antifeds thought it was a federal issue.  At the state level, there had been – and would continue to be – battles over just how much the government needed religion. But what is most impressive about looking for religion in Storing’s Complete Antifederalist is that it’s rarely there – just an occasional comment about protecting religious freedom, and a few statements both for and against a religious test for public office.

In short, the Antifederalists – in their discussions of the federal Constitution – really didn’t have much to say about religion.  If they had thought it was an issue, they probably would have had a lot to say.  But it wasn’t, and they didn’t. So anyone who wants to enlist them in a push for more recognition of the importance of religion at the national level must first remember what is abundantly clear from Storing’s collection — that the Antifederalists didn’t want a “national” (a word they hated) government to have power over anything.

Don Drakeman

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Movsesian on Laws Prohibiting Religiously Offensive Speech

CLR Forum Director Mark Movsesian appeared this week on Voice of America’s “International Edition with Avi Arditti and Kate Woodsome” to discuss the regulation of religiously offensive speech in the United States, Europe, and around the world. Click on the player below to listen. 

Posted on by JCPW

Fleming & McClain, “Ordered Liberty: Rights, Responsibilities, and Virtues”

This November, Harvard University Press will publish Ordered Liberty: Rights, Responsibilities, and Virtues by James E. Fleming and Linda C. McClain (both Boston University School of Law). The publisher’s description follows.

Many have argued in recent years that the U.S. constitutional system exalts individual rights over responsibilities, virtues, and the common good. Answering the charges against liberal theories of rights, James Fleming and Linda McClain develop and defend a civic liberalism that takes responsibilities and virtues—as well as rights—seriously. They provide an account of ordered liberty that protects basic liberties stringently, but not absolutely, and permits government to encourage responsibility and inculcate civic virtues without sacrificing personal autonomy to collective determination.

The battle over same-sex marriage is one of many current controversies the authors use to defend their understanding of the relationship among rights, responsibilities, and virtues. Against accusations that same-sex marriage severs the rights of marriage from responsible sexuality, procreation, and parenthood, they argue that same-sex couples seek the same rights, responsibilities, and goods of civil marriage that opposite-sex couples pursue. Securing their right to marry respects individual autonomy while also promoting moral goods and virtues. Other issues to which they apply their idea of civic liberalism include reproductive freedom, the proper roles and regulation of civil society and the family, the education of children, and clashes between First Amendment freedoms (of association and religion) and antidiscrimination law. Articulating common ground between liberalism and its critics, Fleming and McClain develop an account of responsibilities and virtues that appreciates the value of diversity in our morally pluralistic constitutional democracy.

Posted on by JCPW

Aikman, “One Nation without God?: The Battle of Christianity in an Age of Unbelief”

This September, Baker Books published One Nation without God?: The Battle of Christianity in an Age of Unbelief by David Aikman. The publisher’s description follows.

Christianity in America is under siege. From litigation over coaches starting games with prayer to expulsion from college for refusing to endorse beliefs at odds with the Christian faith, hardly a week goes by without news of the declining influence that Christianity has in the public square. Can Christianity in this country survive the advances of secularists and remain influential in our culture? And if a new spiritual awakening is possible, what form will it take?

Supported by an astonishing parade of concrete examples and direct quotes from reporters, judges, bloggers, and influencers, David Aikman turns a journalist’s eye on the rise of hostility toward Christian expression in America and the alarming decline of orthodox belief among those who call themselves Christians. He explores the inspiring history of Christianity in America, the powerful cultural influences that have weakened the church, and the bright spots of hope he sees across the country, suggesting possible ways Christian influence in America might be refined–and revived.

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Gregorian, “The Emergence of Modern Afghanistan: Politics of Reform and Modernization, 1880-1946”

This January, Stanford University Press will publish The Emergence of Modern Afghanistan: Politics of Reform and Modernization, 1880-1946 with a new introduction by Vartan Gregorian (President of Carnegie Corporation of New York). The publisher’s description follows.

 Long heralded as a seminal work on the history of Afghanistan, this book traces the evolution of the modern Afghan state by studying the politics of reform and modernization that started in 1880 through World War II. This history is marked with persistent attempts by the Afghan ruling dynasty to assert and strengthen its rule—both against the great imperial powers, as well as over the various Afghan tribes within its territory.

In this reissue, Vartan Gregorian offers a new introduction that places the key themes of the book in the context of contemporary events, addressing questions of tribalism, nationalism, Islam, and modernization, as well as the legacies of the Cold War and the various exit strategies of occupying powers. The book remains as distinctive today as when it was first published. It is the only broad work on Afghan history that considers ethnicity as the defining influence over the course of the country’s history, rather than religion. In light of today’s ongoing struggle to develop a coherent national identity, the question of Afghan nationalism remains a particularly significant issue.