By far the most fascinating story to be covered at today’s inaugural festivities involves the genesis and meaning of Justice Scalia’s head-dress. The voracious hunger for conspiratorial explanations in the Twitterverse was predictable, but it was sated (or perhaps ‘whetted’ is the mot juste) by CLR Forum friend Kevin Walsh, whose dash and sense of medieval panache is second to none.
A while back on PrawfsBlawg, my colleague Marc DeGirolami wrote a very interesting post on usury. Although Judaism, Christianity, and Islam all condemn the practice, capitalism depends on lending money at interest. Christians, at least, draw a line between lending money at interest, which is acceptable, and charging an unreasonably high rate of interest, which is a kind of avarice. Christians used to take this very seriously, indeed. The famous Scrovegni Chapel in Padua, for example, executed by Giotto at the start of the Renaissance, was built to atone for the donor’s sin of usury.
Religion scholar Brenda Llewellyn Ihssen (Pacific Lutheran) has published a monograph, They Who Give from Evil: The Response of the Eastern Church to Moneylending in the Early Christian Era (Pickwick 2012), which discusses the treatment of usury in the Early Church. The publisher’s description:
They Who Give from Evil: The Response of the Eastern Church to Moneylending in the Early Christian Era considers St. Basil the Great and St. Gregory of Nyssa’s fourth-century sermons against usury. Both brothers were concerned with the economic and theological implications of destructive and corrosive practices of lending at high rates of interest and implications for both on the community and the individual soul of lender and debtor. Analysis of their sermons is placed within the context of early Greek Christian responses to lending and borrowing, which were informed by Jewish, Greek, and Roman attitudes toward debt.
And here is an interesting interview in which the author discusses what the Church Fathers would make of the current subprime mortgage crisis. The Fathers, it seems, would have admonished lenders and borrowers both.
Asifa Quraishi-Landes (U. of Wisconsin Law School) has posted Rumors of the Sharia Threat Are Greatly Exaggerated: What American Judges Really Do with Islamic Family Law in Their Courtrooms. The abstract follows.
American rule of law has always considered issues of accommodations of religious minorities seeking to follow rules that differ from American secular legal norms. In other words, Sharia is by no means the first religious law to be presented in American courts. Two centuries of case law involving religious-based requests from American Catholics, Jews, Mormons, Native Americans, and others has resulted in several established policies and practices that American judges use to adjudicate requests for consideration of religious law. In short, requests for consideration of religious law are balanced with constitutional and legislative principles, using judicial tools such as comity, public policy, and unconscionability. Because many Americans are unaware of this established practice, the anti-Sharia campaign has been able to create a concern that judicial consideration of Sharia-based claims from Muslim American litigants is compromising American law and values. The case law, however, shows a different picture. Judicial treatment of Sharia requests is not threatening the American rule of law, it is an illustration of it. As with requests from other American religious groups, sometimes Sharia requests win, and sometimes they don’t. Reasonable minds differ over whether the courts get it right each time. But in every case, the job of the judge is a careful balancing of rights against each other, not an automatic trumping of religious practice by secular law or vice versa.
The campaign to ban Sharia in the United States appears to be directed at two different alleged threats: (1) that Sharia will take over American law, and (2) that judicial accommodation of Muslim religious practices is eroding our secular rule of law. The first is a non-issue: there is no real chance that Sharia will replace American law or our Constitution. But the second is worth talking about. It asks a question crucial to the nature of our secular constitutional democracy: Can we legally accommodate a diversity of religious legal practices among our citizens and, if so, with what limits? I will address one aspect of this question by summarizing in Part II how Islamic family law is currently accommodated in American courtrooms today and discussing in Part III why this does not threaten women’s rights or our American rule of law. In Part IV, I consider the global and domestic implications of Muslim American tribunals serving the dispute resolution needs of American Muslims. Part V concludes.
Kristen A. Carpenter (U. of Colorado Law School) has posted Limiting Principles and Empowering Practices in American Indian Religious Freedoms. The abstract follows.
Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress’s subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations.
Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts—namely Congress’s decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level—that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.