Posted on by Marc O. DeGirolami · 3 Comments

Ignorance, Offensiveness, and the Constitution

The recent dispute involving the family whose petition to change its last name to ChristIsKing was denied is interesting on several levels.  As I noted here, it was claimed by the court that compelling a representative of the government to say, “ChristIsKing” (or other phrases like “JesusIsLord”) would violate the Constitution.  In the earlier post, I speculated about whether names like Theophilus or Christopher would likewise violate the Establishment Clause, and someone commented that the difference is that ChristIsKing is a creedal assertion while Theophilus or Christopher is not.  That seems also to be the distinction made by the judge, who was concerned about the “offensiveness” of proclamations by agents of the state with respect to some theological proposition.

Setting aside the issue of why creedal assertions should be more objectionable for Establishment Clause purposes than other sorts of religious assertions, I suspect that’s not what really explains the court’s decision.  First, Theophilus and Christopher are creedal assertions, at least of a kind: they depend on theological or Christian assumptions.  To name someone Theophilus is to assume that there is a God to be loved; and to name someone Christopher is to assume that there is a Christ to be carried.  Those are theological propositions.  Second, I am dubious that a municipal clerk or other government agent who was required to say the name ChristIsKing in any official capacity would be reasonably perceived as endorsing any creedal proposition.  Think about a court clerk who, say, is calling the name of a criminal case: “Next up on the docket is the United States of America v. Joseph ChristIsKing, docket #12-1593510A.”  It would be highly peculiar to believe that the clerk was stating a creedal proposition sponsored by the government.  Third, suppose the court clerk said this: “Next up on the docket is the United States of America v. Joseph Christus Rexmundi.”  I doubt that anybody would bat an eye.  And yet the creedal assertion in this last name is that Christ is king of the world.  So why the difference?

The difference has to do with common cultural ignorance or ordinary cultural associations.  One of the more curious things about the endorsement test as the Establishment Clause standard is that it depends on what a reasonable person would perceive.  The reasonable person is a famously problematic concept in the law, so it is no surprise that it has had such contested results in this area.   One of the special quirks that Establishment Clause cases have brought to the age-old problem of the reasonable person is that sometimes, the test for a reasonable person’s perceptions can look very much like the test for an ignorant person’s perceptions.  I remember a case from a couple of years ago out of the Third Circuit, Stratechuk v.  Board of Education, 587 F.3d 597 (3d Cir. 2009), which involved a misguided school policy prohibiting the singing of “celebratory” religious music at school-sponsored events.  The administration of the policy was baffling: the Martin Luther King Gospel Choir was prohibited from performing at the December concert, while the performance of Vivaldi’s Gloria in Excelsio (cum sancto spiritu) was permitted because the music “does not have a religious orientation and does not refer to a holiday.”

A parent’s claim that the exclusion of certain kinds of music violated the Establishment Clause was, in my view, properly rejected by the Court.  But with a small tweak of the facts, we can see the odd ways in which the endorsement test might cash out.  Suppose the district had banned the performance of all religious music at school throughout the year and no matter the context, because it wanted to avoid the appearance of endorsing religion.  And suppose it had permitted the Vivaldi piece, but excluded everything else, giving as its reason that “Gloria in Excelsio (cum sancto spiritu)” “does not have a religious orientation[.]”  This is of course untrue, but for purposes of the endorsement test, that hardly matters.  What matters is whether a reasonable person would perceive the endorsement, and because many people wouldn’t have perceived it in the piece by Vivaldi, it satisfies the test, while Frosty the Snowman (whose “religious orientation” is, to put it gently, attenuated) and the MLK Gospel Choir don’t.

Something similar is going on in the name change case.  Theophilus and Christopher are not endorsements — and therefore unconcerning to the court — because most people wouldn’t perceive them as endorsements, because most people either don’t know what they mean or don’t associate that knowledge with the name itself (any longer).  But they of course do carry highly theologically charged messages — messages which few people perceive.  If they did perceive those messages, perhaps they might be more offended (as I’ve said before, this whole area of the law is riddled with judicial arm-chair psychology about what offends people, but set that aside).  ChristIsKing carries a theological message which is much more commonly perceived, and whose putative offensiveness is therefore, presumably, much more commonly experienced.  And so the endorsement test seems to trade — at least in these cases — not so much on the divide between the religious and the non-religious, as on the divide between knowledge and ignorance.

Posted on by Mark Movsesian

Panel Tonight at St. John’s

Just a reminder that CLR is hosting a panel at St. John’s tonight, “Careers in Law and Religion.” Speakers include Elizabeth Cassidy (US Commission on International Religious Freedom), Peter James Johnson, Jr. (Leahey and Johnson), Maureen T. Liccione (Jaspan Schlesinger), Keith Sharfman (St. John’s), Amardeep Singh (Sikh Coalition), and Diana Verm (Becket Fund). Details are here.

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Vischer, “Martin Luther King, Jr. and the Morality of Legal Practice”

Next month, Cambridge University Press will publish Martin Luther King, Jr. and the Morality of Legal Practice: Lessons in Love and Justice by Robert K. Vischer (U. of St. Thomas School of Law). The publisher’s description follows.

This book seeks to reframe our understanding of the lawyer’s work by exploring how Martin Luther King Jr. built his advocacy on a coherent set of moral claims regarding the demands of love and justice in light of human nature. King never shirked from staking out challenging claims of moral truth, even while remaining open to working with those who rejected those truths. His example should inspire the legal profession as a reminder that truth-telling, even in a society that often appears morally balkanized, has the capacity to move hearts and minds. At the same time, his example should give the profession pause, for King’s success would have been impossible absent his substantive views about human nature and the ends of justice. This book is an effort to reframe our conception of morality’s relevance to professionalism through the lens provided by the public and prophetic advocacy of Dr. King.

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Leeson on The Law and Economics of Monastic Malediction

Peter T. Leeson (George Mason U.) has posted “God Damn”: The Law and Economics of Monastic Malediction. The abstract follows.

Today monks are known for turning the other cheek, honoring saints, and blessing humanity with brotherly love. But for centuries they were known equally for fulminating their foes, humiliating saints, and casting calamitous curses at persons who crossed them. Clerics called these curses “maledictions.” This article argues that medieval communities of monks and canons used maledictions to protect their property against predators where government and physical self-help were unavailable to them. To explain how they did this I develop a theory of cursing with rational agents. I show that curses capable of improving property protection when cursors and their targets are rational must satisfy three conditions. They must be grounded in targets’ existing beliefs, monopolized by cursors, and unfalsifiable. Malediction satisfied these conditions, making it an effective institutional substitute for conventional institutions of clerical property protection.

Posted on by Marc O. DeGirolami · 3 Comments

On the Texas Cheerleader Religious Banner Controversy

Here is the controversy:  Some cheerleaders at a Texas public school wish to display signs and banners with religious messages on them at high school football games (e.g., “If God is for us, who can be against us?”).  Nothing about the signs involves the public school, other than that the venue in which they are displayed is at a public school football game.  The public school superintendent banned the signs.  And a state court judge in Texas has issued a temporary injunction against the government from forbidding the cheerleaders from displaying their signs.  The injunction is here, but it says nothing about the merits.

And here is the New York Times story today: It doesn’t really discuss the law much but instead paints a sort of man-of-conscience-against-a-hostile-world picture of the superintendent, just as it did for a recent story in Rhode Island involving a student who opposed the display of some religious language on a sign in a public school.  I’m sure the superintendent in the Texas case is a very nice man who is just trying to do his job.  It’s probably too much to ask of the Times that it stop the irritating practice of painting American communities as villains.  They’re probably just composed of people who are doing their best to live according to their own lights of the good life, and in ways that at least one court believes the law permits.

It’s a shame that the Times story doesn’t discuss more about the law.  From what I understand (though I could be wrong) the issue was originally that legal counsel for the superintendent believed that the banners violated the Establishment Clause as interpreted by the Supreme Court in the Santa Fe case.  But at some point that defense to the lawsuit dropped out, and now both sides agree that the signs do not violate the Establishment Clause (I find this representation at p.5 of this motion by the Texas Attorney General to intervene in the case).  It seems that the issue now turns on whether the speech here is characterized as public or private speech.  But this is confusing to me, because Santa Fe involved exactly the issue of whether the speech was public or private — the majority and the dissent disagreed on that question.  The Court in Santa Fe held that the school-instituted two-step election process, in which a student vote about whether a message would be communicated was followed by another vote about who would deliver the message, was basically the government’s impermissibly majoritarian policy and therefore government speech.  Obviously the situation is different in this case, and it would require a significant extension of Santa Fe to cover the cheerleaders’ signs.  But I do not understand why, per the representation of the Texas AG, all sides agree that Santa Fe does not apply.  Perhaps readers can offer illumination.

UPDATE: Do see Paul Horwitz’s discussion of the case here.  Paul points out that the NY Times also has an editorial out today in which it  characterizes the cheerleaders’ actions as a violation of Santa Fe (as explained above, I do not think this is accurate if the facts are as reported), and official support for the cheerleaders’ actions as follows: “These officials are blind to the dangers to religious freedom when government shifts from being neutral about religion to favoring a particular one. “

Posted on by Mark Movsesian · 1 Comment

Religious Affiliation in America

This month’s Pew Report on religious affiliation in America has drawn much well-deserved attention, particularly two of its findings: a continuing increase in the percentage of Americans who do not identify with any religion – the “Nones” – and a continuing decrease in the percentage who identify as Protestant. In the last five years, the Nones have gone from roughly 15% of American adults to roughly 20%. The increase is especially pronounced among adults under the age of 30, a third of whom say they are religiously unaffiliated. And, for the first time since Pew started polling, the percentage of adults who identify as Protestant has dropped below 50%.

These statistics could have profound significance for the future of American religion and law. Take the increased percentage of Nones among people under 30. In a couple of decades, this age cohort will be running American cultural, legal, and political institutions. Traditionally, American institutions have viewed religion as a good thing, both for individuals and society. Will they continue to do so if they are run by people who themselves lack a religious identity, who view religion, at best, with indifference? Will legislatures accommodate religious minorities as readily? Will courts defer to traditions that reflect assumptions large percentages of the population no longer share? It seems doubtful.

The media has jumped on the rise of the Nones, predicting everything from a political realignment (good news for Democrats, bad news for Republicans) to major changes in education and family structure. Maybe – but we need to be cautious. We shouldn’t assume that the increase in the percentage of Nones will Read more

Posted on by Mark Movsesian

Call for Papers: “Intellectual Property and Religious Thought”

The University of St. Thomas (Minnesota) will host a  conference, “Intellectual Property and Religious Thought,” on April 5, 2013. The conference will bring together legal scholars, religious ethicists, religion scholars, and theologians for an interdisciplinary discussion of how religious themes, practices, and communities may inform and shape intellectual property law and policy. The call for papers is here.

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Scherer, “Beyond Church and State: Democracy, Secularism, and Conversion”

In April, Cambridge University Press will publish Beyond Church and State: Democracy, Secularism, and Conversion by Matthew Scherer (Union College). The publisher’s description follows.

Secularism is often imagined in Thomas Jefferson’s words as ‘a wall of separation between Church and State’. This book moves past that standard picture to argue that secularism is a process that reshapes both religion and politics. Borrowing a term from religious traditions, the book goes further to argue that this process should be understood as a process of conversion. Matthew Scherer studies Saint Augustine, John Locke, John Rawls, Henri Bergson and Stanley Cavell to present a more accurate picture of what secularism is, what it does, and how it can be reimagined to be more conducive to genuine democracy.

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Laborde on Equal liberty, Non-Establishment, and Religion

Cecile Laborde (University College London) has posted Equal Liberty, Non-Establishment, and Religion. The abstract follows.

Egalitarian theories of religious freedom deny that religion is entitled to special treatment in law, above and beyond that granted to comparable beliefs and practices. The most detailed and influential defense of such an approach is Christopher Eisgruber and Lawrence Sager’s Religious Freedom and the Constitution (2007). In this essay, I develop, elucidate, and show the limits of the reductionist strategy adopted by Eisgruber and Sager. The strategy requires that religion be analogised with other beliefs and practices, according to a robust metric of comparison. I argue that Eisgruber and Sager fail to develop a consistent and coherent metric, and I further suggest that this failure is symptomatic of the broader difficulty encountered by liberal theory in fitting the concept of religious freedom into a broadly egalitarian framework.

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Makowski, “English Nuns and the Law in the Middle Ages Cloistered Nuns and Their Lawyers, 1293-1540”

 This November, Boydell & Brewer will publish English Nuns and the Law in the Middle Ages Cloistered Nuns and Their Lawyers, 1293-1540 by Elizabeth Makowski (Texas State University). The publisher’s description follows

In late medieval England, cloistered nuns, like all substantial property owners, engaged in nearly constant litigation to defend their holdings. They did so using attorneys (proctors), advocates and other “men of law” who actually conducted that litigation in the courts of Church and Crown. However, although lawyers were as crucial to the economic vitality of the nunneries as the patrons who endowed them, their role in protecting, augmenting or depleting monastic assets has never been fully investigated. This book aims to address the gap. Using records from the courts of the common law, Chancery, and a variety of ecclesiastical venues, it examines the working relationships without which cloistered nuns could not have lived in fully enclosed but self-sustainingc communities. In the first part it looks at the six mendicant and Bridgettine houses established in England, and relates the effectiveness and resilience of their cloistered spirituality to the rise of legal professionalism in the twelfth and thirteenth centuries. It then presents cases from ecclesiastical and royal courts which illustrate the work of legal professionals on behalf of their clients.