The Court has granted cert. in Windsor, concerning the federal Defense of Marriage Act, and Perry, concerning California’s Proposition 8. The religion overtones of both cases are obvious and make them of great interest to CLR readers. Here is Adam Liptak’s coverage in the New York Times.
Egypt’s Constitution: A Return to Classical Islam?
Last week, I wrote that the constitutional struggle between Egyptian President Mohammed Morsi and the country’s Supreme Constitutional Court – a struggle that continued this week, when pro-Morsi picketers shut the court down – might represent an attempt to impose a conservative version of Islamic law in Egypt. Now that more of the draft constitution is available in English, the strategy seems even more apparent.
The draft constitution, like the Mubarak-era document it would replace, makes Sharia the primary source of legislation in Egypt. Traditionally, the SCC has had authority to determine whether laws comply with Sharia principles, and the court typically has taken a moderate, flexible approach. The draft constitution contains new provisions that could change things.
For example, one article declares, “The principles of Sharia include general evidence and foundations, rules and jurisprudence as well as sources accepted by doctrines of Sunni Islam and the majority of Muslim scholars.” It’s not entirely clear from the wording, but the reference to the majority of scholars may suggest a return to the idea of scholarly consensus that informed classical Islamic law, or fiqh. The idea is that Read more
Sunday Forum at Grace Church
For any readers who are local and free on Sunday morning: I will be giving an informal talk at Grace Church in the Village. Here is the church’s description:
“Do religious organizations have special constitutional protection from government regulation? Professor Tebbe will explain and lead discussion on recent Supreme Court rulings on employment discrimination and challenges to the Affordable Care Act.”
The Tale of Psychic Sophie, Part II
Psychic Sophie, as I mentioned in Part I, appealed the district court’s unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday. Chief Judge Traxler, Judge Wilkinson, and Judge Duncan made up the panel. Here’s a news report on the argument. A couple of highlights.
First, in response to an inquiry about whether predicting the future is “inherently deceptive” (and therefore should not receive constitutional protection), counsel for the defendant County said, “Yes, sir, it is.” To which CJ Traxler responded, “How would you characterize the Book of Revelation?” Counsel for the plaintiff seems to have argued that predicting the future is not “inherently” deceptive provided that the prognosticator “sincerely believes” the prediction or does not believe that he is being deceptive. Does the deceptiveness of a prediction of the future depend on the speaker’s subjective belief as to its truthfulness and/or his intent to deceive? I wouldn’t think so, but I’m not a free speech maven. But I suppose one might have replied that predictions of the future are not “inherently” deceptive; they are only contingently true (or false) — the contingency being their (dis-)confirmation on the appointed day. We’re still waiting on Revelation. On the other hand, Montaigne, in his essay, “On Prognostication,” doesn’t see what all the fuss is about: “[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise — a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand –…. It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]”
Second, Judge Duncan was interested in the question of whether Psychic Sophie’s business and belief system were “religious” or instead a “way of life.” But Judge Wilkinson seemed dubious: “If what she’s expressed is a religion, then anything and everything is a religion.” Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine. From Book IV, Chapter 3 of the Confessions:
There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.
Looking forward to the panel’s decision.
Movsesian at NY Catholic Lawyers Guild
Tomorrow morning, I’ll be the speaker at the New York Guild of Catholic Lawyers First Friday series. My talk, which will address the law of religious symbols in the United States and Europe, will begin at 8:15 am at the Church of Our Saviour, 59 Park Ave. (at 38th St.). For details, please contact Robert Crotty at Kelley Drye & Warren, LLP. CLR Forum readers in the neighborhood, stop by and say hello.
Bettering Trollope
In response to Marc’s post about Trollope, I thought I should point out the observations of another 19th Century European visitor — “a perceptive Frenchman,” Justice Scalia once called him — who also wrote about American religion. (Have Supreme Court justices ever cited Trollope? I ask you). Alexis de Tocqueville, who visited America in the 1830s, repeatedly remarked on the fact that Americans valued religion in general and did not concern themselves with denominational differences. “In the United States,” he wrote, “when a political man attacks a sect, it is not a reason for the partisans even of that sect not to support him; but if he attacks all sects together, each flees him and he remains alone.”
Now, Tocqueville emphasized that 19th Century American “sects” all fit “within the great Christian unity” and preached “the same morality in the name of God.” Tocqueville thought that these facts made denominational indifference possible. He wouldn’t have agreed with Trollope that Americans saw Free Thinkers and Methodists as equivalent; Americans were not quite that “free-and-easy” with respect to religion. Times change, of course.
The Tale of Psychic Sophie, Part I
Apropos of Trollope and Ike, here’s a neat case — courtesy of CLR Forum friend and former guest Kevin Walsh — that raises all kinds of interesting questions and which was just up for argument at the Fourth Circuit. It concerns one Psychic Sophie, a self-described “spiritual counselor” operating a business in Chesterfield County, Virginia, which provides the following services (for a fee, of course): Tarot card readings, psychic and clairvoyant readings, and answering strangers’ personal questions in person, over the phone, and via email. She offered these services from a small office within a larger office complex which included licensed mental health professionals.
An Important HHS Mandate Decision: Standing & Ripeness Satisfied
The United States District Court for the Eastern District of New York has denied in part and granted in part the federal government’s Rule 12(b)(1) motion to dismiss the complaint of the Roman Catholic Archdiocese of New York, Catholic Health Care Systems, the Roman Catholic Diocese of Rockville Centre and Catholic Charities, and Catholic Health Services of Long Island (CHSLI). The case is important on the issues of standing and ripeness. The plaintiffs operate self-insured health plans which they believe do not qualify for grandfathered status, though they all do qualify for the safe harbor (meaning that no enforcement would occur against them until January 1, 2014). The decision is complicated and has several moving parts. Here’s the scoop, after the jump.
Government Nonendorsement
Warm thanks to Marc DeGirolami and Mark Movsesian for including me this month. I am looking forward to participating in this terrific forum.
It is often said among scholars of religious freedom that there is no secular Establishment Clause. When the government speaks, according to this view, the only real constitutional restriction is the rule against religious endorsement. So while public officials may not declare that “America is a Christian nation,” they may endorse environmentalism or denigrate smoking. Religion has special constitutional status in this area, or so it is often assumed.
Likewise, scholars and judges writing about free speech commonly say that the only enforceable restriction on government speech is the rule against religious endorsement. In the Summum decision, for example, the Supreme Court reiterated that the Speech Clause simply does not apply to government expression, and it implied or assumed that the only other constitutional restriction on official endorsement of ideas is the Establishment Clause.
Is this assumption—which is commonly repeated, although not commonly interrogated—actually correct? In a draft article available on ssrn, I argue that it is mistaken. In fact, government speech is properly limited in multiple situations by multiple constitutional doctrines, rooted variously in equal protection, due process, and free speech itself. To take only the most obvious example, it would be unconstitutional for the government to declare that “America is a White nation,” even if that statement carried no material consequences. In the piece, I give additional examples concerning electioneering, same-sex marriage exclusions, political gerrymandering, and messages about reproductive decisions. From these examples, and from the principles supporting them, I derive a constitutional theme called government nonendorsement.
I also draw out implications of this argument for theoretical debates over political morality, free speech, and religious freedom. With regard to the last, the principle of government nonendorsement bears on the pressing question of whether religion enjoys special constitutional solicitude. Mostly, my argument supports the position that religion is not special, but it also leaves room for the possibility that some constitutional values barring government expression on religion do not have secular counterparts.
Renard et al., “Fighting Words”
The University of California Press has announced a collection of essays, edited 
by theologian John Renard (St. Louis), on religious justifications for violence, Fighting Words: Religion, Violence, and the Interpretation of Sacred Texts (2012). The publisher’s description follows:
One of the critical issues in interreligious relations today is the connection, both actual and perceived, between sacred sources and the justification of violent acts as divinely mandated. Fighting Words makes solid text-based scholarship accessible to the general public, beginning with the premise that a balanced approach to religious pluralism in our world must build on a measured, well-informed response to the increasingly publicized and sensationalized association of terrorism and large-scale violence with religion.
In his introduction, Renard provides background on the major scriptures of seven religious traditions—Jewish, Christian (including both the Old and New Testaments), Islamic, Baha’i, Zoroastrian, Hindu, and Sikh. Eight chapters then explore the interpretation of select facets of these scriptures, focusing on those texts so often claimed, both historically and more recently, as inspiration and justification for every kind of violence, from individual assassination to mass murder. With its nuanced consideration of a complex topic, this book is not merely about the religious sanctioning of violence but also about diverse ways of reading sacred textual sources.