Posted on by Marc O. DeGirolami

Religious Liberty and Political Ideology: Three Perspectives

Here’s an interesting issue for readers’ consideration involving the alignment of support and opposition for religious liberty with political orientation, and whether that alignment is undergoing a fundamental shift or not.  And here are chunks of three writings to set the stage.

The first is from something I wrote a few years ago:

My horse sense is that the political history of law and religion scholarship might track (very) roughly the comparatively recent history of American politics.  It would evince, that is, a movement from a state of relative convergence on a set of agreed upon views to a state of increasing splintering and balkanization (or, to put it in more sanguine as well as ambiguous terms, to a state of increasing pluralism) of perspective.  Of course I don’t mean that the earlier convergence among religion clause scholars tracked or mirrored an earlier political convergence, or that the current, more balkanized situation runs parallel to contemporary American politics.

What I mean is that if one were to survey the state of the field, say, roughly 30-40 years ago, one would probably see something approaching a rough similarity of perspective among many law and religion scholars — folks who read both the Free Exercise and Establishment Clauses in a ‘strong’ way.  Read more

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Mayer, “The Roman Inquisition”

The Roman InquisitionThis month University of Pennsylvania Press published The Roman Inquisition by Thomas F. Mayer (Augustana College). The publisher’s description follows.

 While the Spanish Inquisition has laid the greatest claim to both scholarly attention and the popular imagination, the Roman Inquisition, established in 1542 and a key instrument of papal authority, was more powerful, important, and long-lived. Founded by Paul III and originally aimed to eradicate Protestant heresy, it followed medieval antecedents but went beyond them by becoming a highly articulated centralized organ directly dependent on the pope. By the late sixteenth century the Roman Inquisition had developed its own distinctive procedures, legal process, and personnel, the congregation of cardinals and a professional staff. Its legal process grew out of the technique of inquisitio formulated by Innocent III in the early thirteenth century, it became the most precocious papal bureaucracy on the road to the first “absolutist” state.

 As Thomas F. Mayer demonstrates, the Inquisition underwent constant modification as it expanded. The new institution modeled its case management and other procedures on those of another medieval ancestor, the Roman supreme court, the Rota. With unparalleled attention to archival sources and detail, Mayer portrays a highly articulated corporate bureaucracy with the pope at its head. He profiles the Cardinal Inquisitors, including those who would play a major role in Galileo’s trials, and details their social and geographical origins, their education, economic status, earlier careers in the Church, and networks of patronage. At the point this study ends, circa 1640, Pope Urban VIII had made the Roman Inquisition his personal instrument and dominated it to a degree none of his predecessors had approached.

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Snyder, “Building a Public Judaism”

This month, Harvard University Press published Building a Public Judaism: Synagogues and Jewish Identity in Nineteenth-Century Europe by Saskia Coenen Snyder (University of South Carolina). The publisher’s description follows.Building a Public Judaism

Nineteenth-century Europe saw an unprecedented rise in the number of synagogues. Building a Public Judaism considers what their architecture and the circumstances surrounding their construction reveal about the social progress of modern European Jews. Looking at synagogues in four important centers of Jewish life—London, Amsterdam, Paris, and Berlin—Saskia Coenen Snyder argues that the process of claiming a Jewish space in European cities was a marker of acculturation but not of full acceptance. Whether modest or spectacular, these new edifices most often revealed the limits of European Jewish integration.

Debates over building initiatives provide Coenen Snyder with a vehicle for gauging how Jews approached questions of self-representation in predominantly Christian societies and how public manifestations of their identity were received. Synagogues fused the fundamentals of religion with the prevailing cultural codes in particular locales and served as aesthetic barometers for European Jewry’s degree of modernization. Coenen Snyder finds that the dialogues surrounding synagogue construction varied significantly according to city. While the larger story is one of increasing self-agency in the public life of European Jews, it also highlights this agency’s limitations, precisely in those places where Jews were thought to be most acculturated, namely in France and Germany.

Building a Public Judaism grants the peculiarities of place greater authority than they have been given in shaping the European Jewish experience. At the same time, its place-specific description of tensions over religious tolerance continues to echo in debates about the public presence of religious minorities in contemporary Europe.

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Jolly on State Photo Identification Standards and Religious Freedom

Rajdeep Singh Jolly (The Sikh Coalition) has posted How State Photo Identification Standards Can Be Used to Undermine Religious Freedom. The abstract follows.

The purpose of this essay is to highlight a latent threat to religious freedom in the post-9/11 environment. In the absence of state laws that track the language of the Religious Freedom Restoration Act of 1993, state legislatures motivated by anti-Muslim bias can harm religious minorities by enacting facially neutral and generally applicable laws that forbid headcoverings in driver license photographs. If such laws are enacted, individuals who wear religious headcoverings can be forced to choose between religious freedom and valid identification cards, without which travel and economic transactions become exceedingly difficult. As a safeguard against this deprivation of religious freedom, this essay argues for more robust civil rights protections at all levels of American government, including stronger federal regulations and wider adoption of state versions of the Religious Freedom Restoration Act.

Posted on by Mark Movsesian · 1 Comment

NY Times on Stanford’s New Religious Liberty Clinic

Yesterday, the New York Times covered the new religious liberty clinic at Stanford Law School. Nice to see the Times has finally caught up to us.

Posted on by Mark Movsesian · 1 Comment

Controversy over Proposed Christian Law School in Canada

This really isn’t the time to be starting a law school, at least in the United States. Lawyers face uncertain job prospects–the poor economy, outsourcing, and technological innovation continue to reduce demand for lawyers–and fewer and fewer people see a legal education as a good investment. Applications are down dramatically. Maybe this situation is temporary, maybe it’s permanent; we’ll have to wait and see. But starting a law school in this environment–you really have to wonder.

None of these hard facts explains the controversy surrounding a proposed new Canadian law school, however. Trinity Western University (TWU) in British Columbia wishes to start the first religious law school in Canada. The Council of Canadian Law Deans opposes the new school because TWU requires students, faculty and staff to honor traditional Christian sexual ethics: no sex outside heterosexual marriage. This requirement, the deans argue, discriminates on the basis of sexual orientation in violation of Canadian law. TWU maintains that a Canadian Supreme Court case from 2001 allows it to impose the requirement as a matter of religious freedom.

The Federation of Canadian Law Schools, the body that accredits law schools in Canada, has not yet decided whether to grant TWU permission to start its new school. Whatever decision the Federation takes, a lawsuit will no doubt follow. Canadian law on religious exercise uses a balancing test similar to the one in the European Conventi0n on Human Rights. Under that balancing test, government may limit citizens’ freedom of religion if necessary to protect important countervailing interests, including “the fundamental rights and freedoms of others.” Just last week, in fact, the European Court of Human Rights applied this test and ruled that the European Convention allows member states to limit employees’ religious freedom in order to protect the right of same-sex couples to be free from discrimination.

It’s a different jurisdiction, of course, and the Canadian and European cases don’t line up exactly. As a religious university, TWU could raise arguments the European case didn’t address. But, like the European case, TWU’s claim will require judges to balance the right of religious exercise against the rights of sexual minorities. If Canadian judges adopt the ECtHR’s general view of things, TWU’s chances of prevailing in the long run don’t look great.

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Ridgeon, “Shi’i Islam and Identity”

I.B. Tauris Publishing has published Shi’i Islam and Identity: Religion, Politics and Change in the Global Muslim Community (2012) by Lloyd Ridgeon (University of Glasgow).  The publisher’s description follows.Shii-Islam-and-Identity

The contemporary world is increasingly regarded as a global community in which traditional patterns of social organisation, faith and practice are rapidly being transformed. These changes are evident in many religious traditions, and Shi’i Islam is no exception. This book seeks to investigate the nature of contemporary Shi’ism, focusing on the creation of identities – showing the diversity of thought within the Shi’i world, the transnational nature of Shi’i networks, and the forces of tradition and modernity influencing current developments in Shi’i identity. Increasing contacts between East and West have made the presence of Shi’ism more visible in the modern world, especially in Europe. Shi’i Islam and Identity shows that it is no longer sufficient to speak of a ‘Shi’i Crescent’; rather, Shi’i worlds range from Senegal, Afghanistan, Iran and Iraq, to Turkey, Albania and European capitals such as London and Berlin.

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Haverkort-Speekenbrink, “European Non-Discrimination Law”

Intersentia Publishing has published European Non-Discrimination Law: A Comparison of EU Law and the ECHR in the Field of Non-Discrimination and Freedom of Religion in Public Employment with an Emphasis on the Islamic Headscarf Issue by Sarah Haverkort-Speekenbrink.  The publisher’s description follows.European Non-Discrimination Law

Contemporary multicultural issues in Europe raise the question whether the overlap between the non-discrimination regimes of the European Union (EU) and the Council of Europe in the field of public employment may lead to conflicting case law. Would the Court of Justice of the European Union (ECJ) and the European Court of Human Rights (ECtHR) address potential sex, race and religious discrimination in a similar manner or would the Courts take a different approach?

This study consists of three parts. Firstly, an analysis is presented of the EU non-discrimination Directives 2006/54, 2000/43 and 2000/78, and the ECJ’s assessment in cases of alleged sex, race and religious discrimination in the public workplace. Secondly, the non-discrimination provisions of the European Convention on Human Rights (ECHR) and the right to freedom of religion are studied. Further, the ECtHR’s assessment in cases involving potential discrimination in the public workplace based on sex, race and religion are examined. In the final part a comparison is made between the provisions and the assessment of the ECJ and the ECtHR.

Besides an examination of European legislation, case law and academic literature, this research also uses a legal case study to explore the similarities and differences between the non-discrimination regimes. Accordingly, the theory is again discussed, but now in light of a much debated issue in Europe: the wearing of the Islamic headscarf in public employment. The result of the study is a detailed explanation of the relevant similarities and differences between the approaches of the two Courts to claims of discrimination.

Posted on by Marc O. DeGirolami

Mystery Millinery

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.

Posted on by Mark Movsesian

Ihssen, “They Who Give from Evil”

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.