Posted on by Mark Movsesian

Nongbri, “Before Religion”

At least since the Enlightenment, the West has assumed that “religion” and “civil government” are separate categories. “Religion” concerns spiritual things like the soul and salvation; civil government concerns the things of this world: health, property, leisure. In fact, the Enlightenment separated religion, not only from politics, but from disciplines like economics as well. Not all cultures share the assumption that religion should be strictly segregated from other aspects of social life, of course, and not everyone in the West does, either. But the Enlightenment assumption still informs much of what we do, whether we think about it consciously or not. Brent Nongbri of Sydney’s Macquarie University has written an interesting-looking book on the history of “religion” as a separate category in Western thought, Before Religion: A History of a Modern Concept (Yale 2012). The publisher’s description follows:

For much of the past two centuries, religion has been understood as a universal phenomenon, a part of the “natural” human experience that is essentially the same across cultures and throughout history. Individual religions may vary through time and geographically, but there is an element, religion, that is to be found in all cultures during all time periods. Taking apart this assumption, Brent Nongbri shows that the idea of religion as a sphere of life distinct from politics, economics, or science is a recent development in European history—a development that has been projected outward in space and backward in time with the result that religion now appears to be a natural and necessary part of our world.

Examining a wide array of ancient writings, Nongbri demonstrates that in antiquity, there was no conceptual arena that could be designated as “religious” as opposed to “secular.” Surveying representative episodes from a two-thousand-year period, while constantly attending to the concrete social, political, and colonial contexts that shaped relevant works of philosophers, legal theorists, missionaries, and others, Nongbri offers a concise and readable account of the emergence of the concept of religion.

Posted on by Marc O. DeGirolami

Rosen on the Liberal Case for Educational Accommodation of Religious Groups

Apropos of Erwin Chemerinsky’s illiberal proposal to close down all private and religious schools, here is a liberal argument for accommodation of the educational preferences of (some) religious and other “perfectionist” groups: The Educational Autonomy of Perfectionist Religious Groups in a Liberal State, by Mark Rosen.  The influence of Rawls on Rosen’s work is very substantial, but Rosen departs from Rawls in several interesting ways.  Arguments like Rosen’s are not the only way to think about issues of educational pluralism (and it seems to me that Rosen’s piece has nothing to say about the educational autonomy of non-perfectionist groups, such as one might find at your typical secular private school).  For a different approach, see this earlier post on Ashley Berner’s essay.  But, like Berner’s essay, Rosen’s is a serious and thoughtful attempt to grapple with these problems.  Here’s the abstract.

This Article draws upon, but reworks, John Rawls’ framework from Political Liberalism to determine the degree of educational autonomy that illiberal perfectionist religious groups ought to enjoy in a liberal state. I start by arguing that Rawls mistakenly concludes that political liberalism flatly cannot accommodate Perfectionists, and that his misstep is attributable to two errors: (1) Rawls utilizes an overly restrictive “political conception of the person” in determining who participates in the original position, and (2) Rawls overlooks the possibility of a “federalist” basic political structure that can afford significant political autonomy to different groups within a single country. With these insights, I argue that some, though not all, religious Perfectionists are consistent with a stable liberal polity, and explain why foundational Rawlsian premises require that Perfectionists be accommodated to the extent possible.

My ultimate conclusions are that liberal polities ought to grant significant autonomy to those illiberal groups that satisfy specified conditions, and that the autonomy of such “eligible” illiberal groups is subject to two further constraints, which I call “well-orderedness” and “opt-out.” The autonomy to which eligible Perfections are entitled includes the authority to educate their children in a way that provides a fair opportunity for the groups to perpetuate themselves. The constraint of well-orderedness, however, permits the State to impose educational requirements that facilitate peace and political stability. Accommodating eligible illiberal groups, subject to these constraints, is an instantiation of liberal commitments, not a compromise of liberal values.

Posted on by Marc O. DeGirolami

Chemerinsky Urges Compulsory Public Education

I am not attending the AALS conference this year, but I thought to reproduce (with permission) a message on a constitutional law listserv that I’m on, written by Pepperdine law professor Mark Scarberry.  Mark reports his impressions of a presentation by UC Irvine law dean Erwin Chemerinsky:

Dean Chemerinsky stated, if my memory is correct, that the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas. That would include suburbs along with inner cities, so that racial integration by busing will be possible. He stated that Milliken v.  Bradley should be overruled, so that suburban school districts could be, for these purposes, combined with inner city school districts to allow integration. He also stated that Pierce v. Society of Sisters should be overruled, so that all children could be required to attend these racially mixed public schools. As I understand it, he thinks that only if whites are required to put their children in the same schools as those attended by racial minorities will there be the political will to provide the resources so that minority students can receive a quality education. He said that parents who wanted to have their children receive religious education or other forms of education could have them receive it after school or (I believe he said) on weekends.

I don’t think he meant to say that the right of parents to control their children’s upbringing and education would be eliminated, but that the right should be overridden by a compelling state interest in providing an adequate education to all students. It wasn’t clear to me whether he wanted all the work to be done by the courts, with courts holding that the Constitution requires that all students attend schools on such a metropolitan-area racially-mixed basis (either as a matter of equal protection or as a matter of a fundamental right to an adequate public education) — or, alternatively, that the Court should allow Congress or states to impose this scheme.

Since it impinges on various law and religion issues, I thought this proposal might be of interest to CLR Forum readers — the legal implications of compulsory public education and the overruling of Milliken v. Bradley and/or Pierce v Society of Sisters would be substantial, and it is notable that someone of Chemerinsky’s status in constitutional law is suggesting this.  There is certainly a pressing need to take seriously the problem of grossly undereducated children in urban and poor areas, and the consequences of Milliken were pretty awful, though what exactly is to be done about that is obscure, at least to me (this is not my area of expertise).  But this proposal seems, as Mark later notes in his message, rather illiberal.  It also doesn’t quite do justice to the reasons for attending a religious school, or any private school for that matter (admittedly, my own educational experience has been entirely within such schools).

I also wonder whether Dean Chemerinsky, as part of his proposal, would be favorably disposed to overruling McCollum v. Board of Education, in which the Court in 1948 held that it violated the Establishment Clause for public schools to release students for religious instruction on school premises, taught by teachers outside the public school system.  It seems to me that Dean Chemerinsky would probably approve of Zorach v. Clausen (but maybe not, because the released time program was being conducted during regular school hours, let alone all of that “Supreme Being” stuff), where the Court in 1952 approved released time religious instruction off school premises.  In conjunction with the (constitutionally mandated?) elimination of private schools, does he envision a larger role for the state (financial or otherwise) in religious education?  If not, after private and religious schools are closed down by the state (whether by judges or by legislators), where would students receive the education that their parents, and they, actually want?

Posted on by Marc O. DeGirolami

Notre Dame HHS Mandate Lawsuit Dismissed on Standing and Ripeness Grounds

Well, it seems I was a bit…unripe in expressing the view that the HHS mandate suits seem not to be going the government’s way.  The United States District Court for the Northern District of Indiana has dismissed the University of Notre Dame’s complaint against Health and Human Services on standing and ripeness grounds.  Notre Dame falls within the safe harbor provision and so the as yet unknown ‘Advanced Notice of Proposed Rulemaking/putative proposed accommodation/vague promise of emendation of the current legal rule’ applies to it.  I quote the court’s language (along with its citations to those cases dealing with entities within and outside the safe harbor, many of which we have discussed before at CLR Forum) at length, as it may be helpful to readers to have it all in front of them:

This is one of dozens of similar suits filed across the nation, and courts have ruled on similar dismissal motions in several of those cases. Some of those rulings dealt with plaintiffs not in the safe harbor; as will be seen, those plaintiffs’ circumstances are too dissimilar to Notre Dame’s for those rulings to be helpful. See, e.g., Grote Indus., LLC v. Sebelius, No. 4:12cv00134-SEB-DML S.D. Ind. Dec. 27, 2012); Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278 (W.D.Okla. 2012), application for injunction denied 2012 WL 6698888 (U.S., Dec. 26, 2012) (Sotamayor, J.); Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C., Nov. 16, 2012); Legatus v. Sebelius 2012 WL 5359630 (E.D.Mich., Oct. 31, 2012); O’Brien v. U.S. Department of Health and Human Services, 2012 WL 4481208 E.D.Mo., Sept. 28, 2012); Newland v. Sebelius, 2012 WL 3069154 (D.Colo., July 27, 2012).

Of the rulings involving plaintiffs in the safe harbor, all but one have found the claims unripe and the plaintiffs to have lacked standing. Zubik v. Sebelius, 2012 WL 5932977 (W.D.Pa., Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, 2012 WL 5879796 (M.D.Tenn., Nov. 21, 2012); Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. 2012), appeal held in abeyance 2012 WL 6652505 (D.C.Cir. 2012); Belmont Abbey College v. Sebelius, 2012 WL 2914417 (D.D.C. 2012), appeal held in abeyance sub nom Wheaton College v. Sebelius, 2012 WL 6652505 (D.C.Cir. 2012); Nebraska ex rel. Bruning v. U.S. Dept. of Health and Human Svcs., 2012 WL 2913402 (D.Neb. 2012); contra, Roman Catholic Archdiocese of New York v. Sebelius, 2012 WL 6042864 E.D.N.Y. ,2012).  None of those rulings bind this court, but the majority are persuasive. Notre Dame’s claims aren’t ripe, and they don’t have standing to bring them.

Both conclusions flow from the government’s creation of a safe harbor for certain employers (including Notre Dame) while it re-works the regulation. As a result, Notre Dame faces no penalty or restriction based on the existing regulatory requirement . . . .

Turning first to ripeness, the challenged regulatory requirement isn’t sufficiently final. Notre Dame is correct that regulation itself claims to be final, 45 C.F.R. § 147.130(a)(1)(iv), but events following the regulation’s adoption make clear that it isn’t final. The defendants have announced their intention to refashion the rule in an effort to address concerns such as those Notre Dame has raised and, by virtue of the safe harbor provision, have exempted Notre Dame from the rule for the time believed to be required for the re-fashioning. The government is entitled to a presumption of good faith in such promises . . . .

Our defendants have taken prompt and concrete action — the safe harbor provision — indicating that its [sic] rule is subject to reconsideration and modification.  Although Notre Dame is correct that an agency can’t “stave off judicial review of a challenged rule simply by initiating a new proposed rulemaking that would amend the rule in a significant way,” American Petroleum Institute v. EPA, 683 F.3d 382, 388 (D.C. Cir. 2012), none of the cases on which Notre Dame relies involve any parallel to the safe harbor provision that protects Notre Dame and others like it from the challenged rule.

Turning back to the question of standing, the challenged regulatory
requirement isn’t the cause of the injuries of which Notre Dame complains. Taking the defendants at their word concerning the intended reworking of the rule, this regulatory requirement won’t require Notre Dame to conduct itself in ways its Catholic mission forbids. This regulation’s replacement might do so, but no one can say because that future rule hasn’t been promulgated. It is enough to know that the present regulation is to be replaced by another, and the safe harbor is protecting Notre Dame from harm to its religious precepts until that replacement occurs.

Indeed, “no one can say” what the replacement rule might do because “no one can say” what the promised proposed rule is, or might be, or is contemplated to be.  But every banana ripens at some point.

The case is University of Notre Dame v. Sebelius, No. 3:12CV253RLM (N.D. Ind. Dec. 31, 2012).

Posted on by Mark Movsesian

Working on Sunday

Here’s an update to last week’s post about a movement to curtail Sunday shopping in Europe. In that post, I speculated that allowing stores to open Sundays might create pressure for observant Christian employees: skip church and report to work, or lose your job. It turns out this concern isn’t speculative. In England, a High Court judge recently ruled that employers may discipline observant Christians who refuse to work Sundays.

The case involves Ms. Celestina Mba, who worked as a caregiver in a government-run children’s center. A devout Baptist, she goes to church every Sunday and does not wish to work on that day. When her employer — a government agency, note, in a state with an established church — pressured her to work Sundays, she quit and sued for employment discrimination. She lost at trial and, last month, in the High Court as well.

Why did she lose? English law allows employers to require employees to work Sundays if there is “a legitimate business need.” According to press reports, though, the High Court did not rely on that principle in Ms. Mba’s case. Rather, the court reasoned that Christianity did not require Sabbath observance in the first place. Plenty of Christians work Sundays, the court noted; only a few, like Ms. Mba, see it as a problem. As a result, religious freedom was not seriously implicated by requiring her to work. Employers, the court reasoned, do not need to accommodate outliers like Ms. Mba.

Now, this reasoning is very odd. The fact that some of those Christians who work Sundays might be doing so because they have to — that is, because otherwise they would lose their Read more

Posted on by Mark Movsesian

Conference on Christian Legal Thought (Jan 5)

For CLR Forum readers attending the AALS Meeting in New Orleans this weekend, the annual Lumen Christi Conference on Christian Legal Thought will take place on Saturday, January 5. This year’s meeting will focus on a recent statement on the nature of law by Evangelical and Catholic scholars and will include speakers from non-Christian perspectives as well. Details are here.

Posted on by Mark Movsesian

Brown, “Through the Eye of a Needle”

As a break from grading exams over the last couple of weeks, I worked my way through Peter Brown’s immense new work, Through the Eye of a Needle: Wealth, the Fall of Rome, and the Making of Christianity in the West (Princeton 2012). Brown is the greatest living historian of late antiquity, and in this work he sets out to show how the Christian church gradually attracted the rich and powerful in the century or so following the conversion of Constantine. According to Brown, it was Christianity’s ability to attract the Roman super rich, rather than the moderately wealthy people who had made up the bulk of the pre-Constantinian church, that really “marks the turning point in the Christianization of Europe” — not the conversion of Constantine itself, which had little immediate effect on Roman society. It’s a useful lesson for law and religion scholars, who tend to assume, the way lawyers do, that official acts like Constantine’s are the most important force in social change. Brown’s erudition is incredible and the book offers many insights about late Roman culture and society. Many readers will love the immersion in the past — though, candidly, some might think Brown’s obsessive attention to detail occasionally detracts from the sweep of his narrative. Here’s the publisher’s description:

Jesus taught his followers that it is easier for a camel to go through the eye of a needle than for a rich man to enter heaven. Yet by the fall of Rome, the church was becoming rich beyond measure. Through the Eye of a Needle is a sweeping intellectual and social history of the vexing problem of wealth in Christianity in the waning days of the Roman Empire, written by the world’s foremost scholar of late antiquity.

Peter Brown examines the rise of the church through the lens of money and the challenges it posed to an institution that espoused the virtue of poverty and called avarice the root of all evil. Drawing on the writings of major Christian thinkers such as Augustine, Ambrose, and Jerome, Brown examines the controversies and changing attitudes toward money caused by the influx of new wealth into church coffers, and describes the spectacular acts of divestment by rich donors and their growing influence in an empire beset with crisis. He shows how the use of wealth for the care of the poor competed with older forms of philanthropy deeply rooted in the Roman world, and sheds light on the ordinary people who gave away their money in hopes of treasure in heaven.

Through the Eye of a Needle challenges the widely held notion that Christianity’s growing wealth sapped Rome of its ability to resist the barbarian invasions, and offers a fresh perspective on the social history of the church in late antiquity.

Posted on by Marc O. DeGirolami

Bratt, “Abraham Kuyper: Modern Calvinist, Christian Democrat”

Dutch neo-Calvinism has had a major, though understudied, impact on Abraham KuyperAmerican thinking about church and state.  And one can see the influence of one of neo-Calvinism’s greatest minds, Abraham Kuyper, in the “Souvereiniteit in Eigen Kring,” or “sphere sovereignty,” legal pluralist scholarship of writers like Nicholas Wolterstorff, Paul Horwitz, Richard Garnett, and, at perhaps a somewhat greater distance, Frederick Schauer.  This full-scale biography, Abraham Kuyper: Modern Calvinist, Christian Democrat (Eerdmans 2013), by James D. Bratt (Calvin College), will be of special interest to students of neo-Calvinist influence in contemporary political thought.  The publisher’s description follows.

In this first full-scale English biography of Abraham Kuyper, the highly influential religious and political leader of Dutch Calvinists in the late nineteenth and early twentieth century, historian James D. Bratt draws connections between the life and thought of Kuyper and current debates in America today. Bratt’s study covers Kuyper’s early years, his development as a person, his various leadership roles and spheres of influence, and the considerable ongoing impact of his ideas.

A convinced Calvinist and a distinctly modern public figure, Kuyper held a wide variety of roles over the course of his life — minister, newspaper editor, educational innovator, politician, religious reformer, and prime minister of the Netherlands (1901-1905). Kuyper’s life demonstrates how devotees of any faith can carry on a responsible public life in contention — and concert — with people of other convictions.

Posted on by Marc O. DeGirolami

Scherer, “Beyond Church and State”

Secularism and “post-secularism” studies have been big over the last few Beyond Church and Stateyears (just click on the “Secularism” tag below for a small sampling), and it looks like they will continue to attract scholarly attention in 2013.  Here’s an interesting looking entry in the field, Beyond Church and State: Religion, Politics, and Democracy (Cambridge University Press 2013), by Matthew Scherer (Union College, New York).  The publisher’s description follows.

Secularism is often imagined in Thomas Jefferson’s words as “a wall of separation between Church & State.” Religion, Politics, and Democracy moves past that standard picture to argue that secularism is a process that reshapes both religion and politics. Borrowing a term from religious traditions, the book goes further to argue that this process should be understood as a process of conversion. Matthew Scherer studies Saint Augustine, John Locke, John Rawls, Henri Bergson, and Stanley Cavell to present a more accurate picture of what secularism is, what it does, and how it can be reimagined to be more conducive to genuine democracy.

Posted on by Marc O. DeGirolami

Kessler (ed.), “Political Theology for a Plural Age”

First things first: a very happy new year to our readers.  Mark and I are excited to continue sharing with you all sorts of new items of law and religion interest in the coming months.

Second, here is what looks like a very worthy book to kick off our 2013 Political Theology for a Plural Ageroundup of new scholarship: Political Theology for a Plural Age (OUP 2013), a volume of essays edited by Michael Jon Kessler of the Berkley Institute at Georgetown.  Some of the specific entries look really neat, including a “conversation” among José Casanova, Michael Kessler, Mark Lilla, and John Milbank.  Readers of CLR Forum will perhaps remember Mark Lilla’s entry in the political theology field in 2007, The Stillborn God (I had the pleasure of participating in one of Lilla’s seminars a few years ago on The Varieties of Religious Experience by William James, and it was a wonderful experience).  The superb Reinhold Niebuhr scholar Robin Lovin also has an interesting essay called, “The Future of Political Theology: From Crisis to Pluralism.”  And it looks like there are two pieces that take on the subject of political theology from a distinctively Augustinian perspective (though they may, and I am guessing probably will, have quite different things to say): Patrick Deneen’s “The Great Combination: Modern Political Thought and the Collapse of the Two Cities,” and Charles Mathewes’s, “Augustinian Christian Republican Citizenship.”  The publisher’s description follows.

Political theology has traditionally explored the legitimization of political authority on the basis of divine revelation and of natural reason informed by religious authority, texts, and traditions. New challenges emerging in the postwar era gave rise to ongoing debate about the place of religion in public life, in the United States and in other established democracies, and this debate has dramatically reshaped the way scholars, policymakers, and religious leaders think about political theology.

Political Theology for a Plural Age provides historic and contemporary understandings of political engagement in Christianity, Judaism, and Islam, engaging political theologies not merely as a set of theoretical concepts but as religious beliefs and principles that motivate specific political action. The essays in this volume, written by leading thinkers and practitioners within each tradition and their secular counterparts, examine a number of core issues at the intersection of religion and politics. They contest the definition of political theology, establish a common discourse across the three Abrahamic traditions, and closely examine how globalization, secularization, and pluralism affect the construction and plausibility of political theologies. Finally, the essays offer insight into how political theologies might adapt to the shared global challenges of the twenty-first century.