White, “Muslim Nationalism and the New Turks”

This month, Princeton University Press will publish Muslim Nationalism and the New Turks by Jenny White (Boston University). The publisher’s description follows.

Turkey has leapt to international prominence as an economic and political powerhouse under its elected Muslim government, and is looked on by many as a model for other Muslim countries in the wake of the Arab Spring. This book reveals how Turkish national identity and the meanings of Islam and secularism have undergone radical changes in today’s Turkey, and asks whether the Turkish model should be viewed as a success story or cautionary tale.

Jenny White shows how Turkey’s Muslim elites have mounted a powerful political and economic challenge to the country’s secularists, developing an alternative definition of the nation based on a nostalgic revival of Turkey’s Ottoman past. These Muslim nationalists have pushed aside the Republican ideal of a nation defined by purity of blood, language, and culture. They see no contradiction in pious Muslims running a secular state, and increasingly express their Muslim identity through participation in economic networks and a lifestyle of Islamic fashion and leisure. For many younger Turks, religious and national identities, like commodities, have become objects of choice and forms of personal expression.

This provocative book traces how Muslim nationalists blur the line between the secular and the Islamic, supporting globalization and political liberalism, yet remaining mired in authoritarianism, intolerance, and cultural norms hostile to minorities and women.

Hatzis on Anti-Discrimination Law and Clergy in the U.K.

Nicholas Hatzis (University of Oxford) has posted The Church-Clergy Relationship and Anti-Discrimination Law. The abstract follows.

Should antidiscrimination norms apply to the relationship between a religious group and its clergy? In Hosanna-Tabor Evangelical Lutheran Church v EEOC the US Supreme Court affirmed the existence of a “ministerial exception” which bars discrimination claims by ministers of religion against their church. In 2005 the House of Lords had reached the opposite conclusion, ruling, in Percy v Board of National Mission of the Church of Scotland, that the decision to dismiss an ordained minister was not a spiritual matter falling outside the scope of secular law. This article examines the constitutional foundations of the ministerial exception, argues that Percy ignored important aspects of church autonomy and suggests that courts should consider creating a narrowly tailored rule exempting decisions to appoint or remove clergy from the scope of anti-discrimination law.


Amicus Brief of Constitutional Law Scholars in Stormans v. Salecky

I am happy to have joined an amicus brief together with several other constitutional law professors –but written by Doug Laycock and some excellent lawyers in Austin, Texas — in Stormans v. Salecky, a case currently being litigated in the Western District of Washington and the Ninth Circuit.  The case concerns the free exercise rights of several pharmacists at small pharmacies who have religious conscience objections to dispensing Plan B emergency contraception, and who are being compelled to do so by the Washington State Board of Pharmacy’s regulations requiring all pharmacies to dispense certain drugs, without exception.  I am particularly keen on the description in the brief of Smith and Lukumi-Babalu as representing a kind of range of general applicability — the idea being that many cases will fall somewhere between those two points.  That’s nifty, because one often sees Lukumi instead described as an “exception” to the Smith “rule,” which has different connotations.  You can read more about the case in Judge Leighton’s most recent opinion.

Get with the Programme

At question time in the House of Commons today, UK Prime Minister David Cameron spoke about yesterday’s decision by the General Synod of the Church of England to reject women bishops. According to the Guardian,

Cameron said he was “very sad” about the result. “On a personal basis I’m a strong supporter of women bishops. I’m very sad about the way the vote went yesterday …. I think it’s important for the Church of England to be a modern church in touch with society as it is today and this was a key step it needed to take.”

Cameron indicated that the government would respect the Church’s self-governing status — although established by law, the Church legislates for itself through the General Synod — while giving the Church “a sharp prod.” It’s not clear what the prod will be. Some MPs are threatening to end the Church’s representation in the House of Lords; others, to remove the Church’s exemption from anti-discrimination laws. Anyway, Cameron made clear, the Church would somehow have to “get with the programme” and reverse yesterday’s decision.

Please note that the Prime Minister’s objections, and the objections of the other MPs, are entirely political. I don’t mean that as a criticism; it’s simply a fact. In essence, what the Prime Minister is saying is this: The Church’s decision is inconsistent with the deepest values of contemporary English society; therefore, the decision is  illegitimate. Now, no doubt, the Prime Minister thinks it is Read more

Theological Argument in Law: Engaging with Stanley Hauerwas

From our friend John Inazu, we get news of the publication of the latest issue of Law and Contemporary Problems, a symposium on the work of Stanley Hauerwas and theological argument in law which John put together.  Congratulations to him and to all of the contributors for their pieces.  Here is a portion of John’s foreword to the symposium (footnotes omitted):

Some of Hauerwas’s critics may be right to argue that he “reacts against a type of liberalism that exists mostly on the pages of books by Rawls, Rorty, and their followers, and not in actual practice.” But that description is at least true of the academy.  Much teaching and scholarship relies upon unacknowledged constraints on argumentative practices from professors who embrace the ideals of Rawlsian public reason or, more strikingly, whose epistemic commitments welcome a spectacular diversity of viewpoints and worldviews—except for theological ones. As a result, a great deal of scholarship ignores or too easily dismisses theological argument. If public reason and epistemic bias have succeeded anywhere in squelching theological argument, it is in the academy.

Contrary to the academy’s dominant orthodoxies, Hauerwas insists that Christian theology properly belongs in contemporary discourse: “[A]t the very least Christianity names an ongoing argument across centuries of a tradition which has established why some texts must be read and read in relation to other texts.” As a result, “Christians for all their shortcomings still represent an ongoing educated public that means they must . . . have agreements that make their disagreements intelligible.” It is for this reason that

[Christians] should not avoid exploring what differences their convictions might make for why they do what they do. That difference will, of course, vary from subject to subject but surely such an investigation is the kind of work a university should sponsor. I obviously think that would be true of those working in other religious and nonreligious traditions. Of course, such work would make the university more conflictual but I see no reason why that is a disadvantage.  (Stanley Hauerwas, The State of the University: Academic Knowledges and the Knowledge of God 91 n.19 (2007)).

Galenkamp on Locke and Bayle on Religious Toleration

Marlies Galenkamp (Erasmus University Rotterdam) has posted Locke and Bayle on Religious Toleration.  The abstract follows.

In Western-European societies, two questions are currently at the centre of political debate. What is the scope and what are the limits of religious toleration? What is the proper role of the state with regard to religious issues? By addressing these two topics, Dutch constitutional law scholars commonly start from two presumptions. First of all, the presumption in favour of liberty (leading to a quite absolute interpretation of fundamental rights) and secondly, the doctrine of interpretative restraint by civil authorities with regard to religious matters. These presumptions are generally considered as uncontested axioms. It seems to me that both presumptions may be qualified, however. This will be done by elaborating on the views of two 17th-century scholars on religious toleration, the Englishman John Locke and the Frenchman Pierre Bayle. Interestingly, both formulated their insights during their exile in the Dutch Republic. It will turn out that the dominant interpretation of the presumptions rests on a too superficial reading of Locke and on a disregard of Bayle’s insights, respectively.

Fallaw, “Religion and State Formation in Postrevolutionary Mexico”

In January, Duke University Press will publish Religion and State Formation in Postrevolutionary Mexico by Ben Fallaw (Colby College).  The publisher’s description follows.

The religion question—the place of the Church in a Catholic country after an anticlerical revolution—profoundly shaped the process of state formation in Mexico. From the end of the Cristero War in 1929 until Manuel Ávila Camacho assumed the presidency in late 1940 and declared his faith, Mexico’s unresolved religious conflict roiled regional politics, impeded federal schooling, undermined agrarian reform, and flared into sporadic violence, ultimately frustrating the secular vision shared by Plutarco Elías Calles and Lázaro Cárdenas.

Ben Fallaw argues that previous scholarship has not appreciated the pervasive influence of Catholics and Catholicism on postrevolutionary state formation. By delving into the history of four understudied Mexican states, he is able to show that religion swayed regional politics not just in states such as Guanajuato, in Mexico’s central-west “Rosary Belt,” but even in those considered much less observant, including Campeche, Guerrero, and Hidalgo. Religion and State Formation in Postrevolutionary Mexico reshapes our understanding of agrarian reform, federal schooling, revolutionary anticlericalism, elections, the Segunda (a second Cristero War in the 1930s), and indigenism, the Revolution’s valorization of the Mesoamerican past as the font of national identity.

District Court Rules Against For-Profit Plaintiff in Contraception Mandate Litigation

The United States District Court for the Western District of Oklahoma has denied a preliminary injunction to a for-profit company which had sued the Department of Health and Human Services on the grounds that the contraception mandate violated its religious liberty.  Hobby Lobby Stores, Inc. is a closely held corporation whose business is arts and crafts — operating over 500 stores in 41 states and with over 13,000 employees.  The company, the court says, is “secular,” but also operated by the owners “according to their Christian faith.”  This is confusing.

At any rate, the court denied the PI both as to the Free Exercise Clause claim and the RFRA claim.  On the particular issue of whether a corporation can exercise religion (see CLR Forum posts here (Professor Colombo’s paper) and here), the court had this to say:

General business corporations do not, separate and apart from the
actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those “purely personal” matters referenced in [Nat’l Bank of Boston v.] Bellotti  which is not the province of a general business corporation.  (18)

This is a bizarre and unnecessarily maximalist statement.  It is not needed to reach the result in the case.  It also seems untrue: it is perfectly natural to say that a corporate body can exercise religion.  I take it that at least one of the reasons that even the government itself carved out an exception in the mandate for houses of worship was that it recognized that corporate bodies can and do exercise religious freedom.  To the extent that the court is drawing a line between for-profit and not for-profit “businesses,” one might have wished for a bit more discussion about what it is exactly about the for-profit context that makes it conceptually impossible for such businesses to exercise religion.  The interesting question, I had thought, about the issue of for-profit corporations was not whether it is impossible conceptually for corporations to exercise religion full stop.  Surely it is.  The interesting question is also clearly not whether religious exercise is “a purely personal matter”; it isn’t, and in any case, one wonders why the court is qualified to opine on that sort of issue.  The interesting question, I thought, has to do with how we can know, when a corporation is very large and diffuse, or is owned by many people with different religious beliefs, what the corporation’s religious beliefs are.

The case is Hobby Lobby Stores, Inc. v. Sebelius.  Lawyers for the plaintiff have said that they will appeal.