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Beschle on a Broad Free Exercise and a Narrow Definition of Religion

Donald L. Beschle  (John Marshall Law School) has posted Does a Broad Free Exercise Right Require a Narrow Definition of “Religion”? The introduction follows.

In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions. The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.

Reaction to Smith was largely negative, and legislative and state court responses followed, seeking to restore strict scrutiny as the appropriate standard when a free exercise exemption was denied. Smith was seen as an unfortunate decision reflecting insensitivity to the significance of the free exercise right. This article explores the possibility that Smith may have been less the result of that insensitivity than it was a response to the vast expansion of the concept of religion in constitutional law since the Court’s first free exercise decisions employing strict scrutiny. This expansion made the application of strict scrutiny, at least as it is normally understood, wildly impractical.

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Posted on by Mark Movsesian

Mautner on Excluding Women from Torah Study

One of the many things that worries secular liberals about the revival of religion — assuming a revival is really occurring — is the traditionalism of the religious worldview. Since the Enlightenment, liberalism has taught that the individual must be free to  determine for himself, without the interference of tradition or traditional authority,  the meaning of existence and his place in the universe (see, e.g., Planned Parenthood v. Casey). The religious worldview rejects this idea. The meaning of the universe is determined by God, and wisdom lies in discovering His plan and accepting the place He has assigned you in it. (Of course, religions differ on the details of the plan!) There are important qualifications, of course. Liberalism doesn’t think people should just do what they want, and traditionalism doesn’t think that everything must always remain the same. But much of the tension between secular liberals and religious conservatives can be traced to these different premises.

Menachem Mautner (Tel Aviv University – Buchman Faculty of Law) has posted an interesting-looking piece that explores this tension in the context of Jewish law, or, more precisely, the study of Jewish law: A Dialogue between a Liberal and an Ultra-Orthodox on the Exclusion of Women from Torah Study. Here’s the abstract:

This is a fictive dialogue between a liberal and an ultra-Orthodox on the exclusion of women from Torah study. The dialogue begins with a lengthy discussion of the highly intricate preliminary problems of understanding and normatively evaluating the practices of another culture. The Liberal argues that the exclusion of women from Torah study precludes them from fully realizing the intellectual potential that lies within them, i.e., it denies them reaching the height of their human flourishing. It also implies that ultra-Orthodox women are regarded as having lesser moral worth than men.

The ultra-Orthodox argues that whereas modernity is premised on the denial of any status bestowed by tradition in the life of a person, for the ultra-Orthodox tradition has a binding force: it embodies God’s imperatives as to the good life, together with the ways these imperatives have been interpreted throughout the generations by Halakhic sages. Torah study is a religious imperative (mitzvah) that under the accepted tradition is Read more

Posted on by Mark Movsesian

Panel: Islam and Politics

On November 29, the New York City Bar Association will host a panel, “Islam and Politics.” According to the organizers, the event will “focus on the role of religion in Muslim majority States, especially as it pertains to competition both among Sunnis, Shi’a, and Salafists as well as between Muslims and other religious minorities.” Details are here.

Posted on by Mark Movsesian

Panel: Overcoming Genocide Denial

Fordham Law School’s Leitner Center for International Law and Justice will host a panel, “Overcoming Genocide Denial,” on December 4. The panel will offer a comparative examination of the Holocaust and the Armenian, Rwandan, and Sudanese Genocides. Speakers include Taner Akçam (Clark University), Gregory Stanton (George Mason University) and Sheri Rosenberg (Cardozo Law School). Details are here.

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Jennings, “Outlaw Justice: The Messianic Politics of Paul”

This March, Stanford University Press will publish Outlaw Justice: The Messianic Politics of Paul by Theodore W. Jennings Jr. (Chicago Theological Seminary). The publisher’s description follows.

This book offers a close reading of Romans that treats Paul as a radical political thinker by showing the relationship between Paul’s perspective and that of secular political theorists. Turning to both ancient political philosophers (Plato, Aristotle, and Cicero) and contemporary post-Marxists (Agamben, Badiou, Derrida, and Žižek), Jennings presents Romans as a sustained argument for a new sort of political thinking concerned with the possibility and constitution of just socialities.

Reading Romans as an essay on messianic politics in conversation with ancient and postmodern political theory challenges the stereotype of Paul as a reactionary theologian who “invented” Christianity and demonstrates his importance for all, regardless of religious affiliation or academic guild, who dream and work for a society based on respect, rather than domination, division, and death. In the current context of unjust global empires constituted by avarice, arrogance, and violence, Jennings finds in Paul a stunning vision for creating just societies outside the law.

Posted on by Mark Movsesian · 1 Comment

Lecture: The Arab Spring and International Law (Update)

The lecture at Fordham’s Institute on Religion, Law & Lawyer’s Work, “The Arab Spring: Its Impact on International Politics, International Law, and International Relations,” originally scheduled for November 1 and canceled because of Hurricane Sandy, has been rescheduled for December 4. Details are here.

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Amerini, “Aquinas on the Beginning and End of Human Life”

This June, Harvard University Press will publish Aquinas on the Beginning and End of Human Life by Fabrizio Amerini (University of Parma), translated by Mark Henninger (Georgetown University). The publisher’s description follows.

In contemporary discussions of abortion, both sides argue well-worn positions, particularly concerning the question, When does human life begin? Though often invoked by the Catholic Church for support, Thomas Aquinas in fact held that human life begins after conception, not at the moment of union. But his overall thinking on questions of how humans come into being, and cease to be, is more subtle than either side in this polarized debate imagines. Fabrizio Amerini—an internationally-renowned scholar of medieval philosophy—does justice to Aquinas’ views on these controversial issues.

Some pro-life proponents hold that Aquinas’ position is simply due to faulty biological knowledge, and if he knew what we know today about embryology, he would agree that human life begins at conception. Others argue that nothing Aquinas could learn from modern biology would have changed his mind. Amerini follows the twists and turns of Aquinas’ thinking to reach a nuanced and detailed solution in the final chapters that will unsettle familiar assumptions and arguments.

Systematically examining all the pertinent texts and placing each in historical context, Amerini provides an accurate reconstruction of Aquinas’ account of the beginning and end of human life and assesses its bioethical implications for today. This major contribution is available to an English-speaking audience through translation by Mark Henninger, himself a noted scholar of medieval philosophy.

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Stanford Starts Religious Liberty Clinic

This is welcome news. Next semester, Stanford Law School will start the nation’s first law school clinic focused on religious liberty. Here’s the announcement from the Stanford website:

The Religious Liberty Clinic is the newest addition to the Mills Legal Clinic, and is presently the only clinic of its kind in the country.  The clinic will offer participating students a dynamic, real-world experience representing a diverse group of clients in disputes arising from a wide range of religious beliefs, practices, and customs in a variety of circumstances.  Students will learn in class and apply in practice the laws affecting religious liberty, whether statutory or constitutional, and will be expected to counsel individual or institutional clients and litigate on their behalf with technical excellence, professionalism, and maturity.

During the term, students can expect to handle a discrete accommodation project—e.g., represent a prisoner, student, or employee facing obstacles in the exercise of his or her faith—and likely also participate in a longer-term project involving religion in the public square—e.g., represent a small church, synagogue, or mosque with zoning issues, or a faith-based group seeking access to public facilities.  Opportunities to draft amicus briefs may also arise.  The clinic will involve administrative, trial, and appellate practice—though time constraints may not permit each student to work in all areas—united under the theme of “religious liberty for all.”  Because the clinic is a new and unique venture, students may also help in marketing and outreach efforts to the religious and wider communities.

The clinic will be directed by James Sonne, formerly of Ave Maria Law School.

The fact that a law school of Stanford’s prominence is starting a clinic focusing on religious liberty suggests how important this field is becoming. A few years ago, Stanford hired Michael McConnell, one of America’s foremost law and religion scholars, to direct its Constitutional Law Center. It looks like Stanford is making a serious play to become a leader in law and religion studies in the United States.

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Mikulich, Cassidy, and Pfeil, “The Scandal of White Complicity in US Hyper-incarceration: A Nonviolent Spirituality of White Resistance”

This February, Macmillan Publishing will publish The Scandal of White Complicity in US Hyper-incarceration: A Nonviolent Spirituality of White Resistance by Alex Mikulich (Loyola University New Orleans), Laurie Cassidy (Marywood University), and Margaret Pfeil (University of Notre Dame). The publisher’s description follows.

The Scandal of White Complicity and U.S. Hyper-incarceration is a groundbreaking exploration of the moral role of white people in the disproportionate incarceration of African-Americans and Latinos in the United States. Alex Mikulich, Laurie Cassidy, and Margaret Pfeil are white Catholic theologians developing understanding of how whiteness operates in the U.S. system of incarceration and witnessing to a Christian nonviolent way for whites to subvert our oppression of brothers and sisters of color.

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Gulalp & Seufert, “Religion, Identity, and Politics: Germany and Turkey in Interaction”

This April, Routledge Publishers will publish Religion, Identity, and Politics: Germany and Turkey in Interaction edited by Haldun Gulalp (Yıldız Technical University) and Günter Seufert (senior researcher, German Institute for International and Security Affairs). The publisher’s description follows.

This book examines the long history and unrecognized depth of German-Turkish relations, particularly with regard to the mutually formative processes of religious identities and institutions. Opposing the commonly held assumption that Europe is the abode of secularism and enlightenment, while the lands of Islam are the realm of backwardness and fundamentalism, the authors observe that, Germany, as the case in point, both historically and contemporarily has treated religion as a core aspect of communal and civilizational identity and framed its institutions accordingly. Further, there has been, and continues to be, a mutual exchange in this regard between Germany and both the Ottoman Empire and modern Turkey. Definition of identity and regulation of communities have been explicitly based on religion until the early and since the late twentieth century. The period in between, often treated as normative for being identified with secular and national communities, now appears as an exception.