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Strasser on the Establishment Clause

Mark Strasser (Capital University Law School) has posted The Endorsement Test is Alive and Well: A Cause for Celebration and Sorrow. The abstract follows.

The endorsement test, first explained by Justice O’Connor, provides one way to determine whether state action violates Establishment Clause guarantees. Now that Justice O’Connor has retired, there is some question whether the endorsement test will survive. Commentators’ claims to the contrary notwithstanding, however, there is no reason to think that the endorsement test retired along with Justice O’Connor, although a separate issue is whether those on the Court using the test will do more than give occasional lip service to the interests and perspectives of minority religious groups. At this point, the most likely scenario is that the Court will sometimes use the test, but will be unlikely to use it to strike down a particular practice. The article concludes that the test is likely to remain one of the tests used by the Court to determine whether Establishment Clause guarantees have been violated — the test will retain its potential to assure that individuals will not be treated as second-class citizens because of their religious beliefs but will in reality do little or nothing to take account of religious minorities’ sincere reactions to a variety of practices privileging some religions over others and privileging religion over non-religion.

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Schlereth, “An Age of Infidels”

Next month, University of Pennsylvania Press will publish An Age of Infidels: The Politics of Religious Controversy in the Early United States by Eric R. Schlereth (University of Texas).  The publisher’s description follows.An Age of Infidels

Historian Eric R. Schlereth places religious conflict at the center of early American political culture. He shows ordinary Americans—both faithful believers and Christianity’s staunchest critics—struggling with questions about the meaning of tolerance and the limits of religious freedom. In doing so, he casts new light on the ways Americans reconciled their varied religious beliefs with political change at a formative moment in the nation’s cultural life.

After the American Revolution, citizens of the new nation felt no guarantee that they would avoid the mire of religious and political conflict that had gripped much of Europe for three centuries. Debates thus erupted in the new United States about how or even if long-standing religious beliefs, institutions, and traditions could be accommodated within a new republican political order that encouraged suspicion of inherited traditions. Public life in the period included contentious arguments over the best way to ensure a compatible relationship between diverse religious beliefs and the nation’s recent political developments.

In the process, religion and politics in the early United States were remade to fit each other. From the 1770s onward, Americans created a political rather than legal boundary between acceptable and unacceptable religious expression, one defined in reference to infidelity. Conflicts occurred most commonly between deists and their opponents who perceived deists’ anti-Christian opinions as increasingly influential in American culture and politics. Exploring these controversies, Schlereth explains how Americans navigated questions of religious truth and difference in an age of emerging religious liberty.

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Larson, et al. (eds.), “Gender and Equality in Muslim Family Law”

Next month, I.B. Tauris Publishers will publish Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Process edited by Lena Larsen, Ziba Mir-Hosseini, Christian Moe and Kari Vogt.  The publisher’s description follows.

This book examines how male authority is sustained through law and court practice, the consequences for women and the family, and the demands made by Muslim women’s groups. Examining the construction of male guardianship (qiwama, wilaya) in the Islamic tradition, it also seeks to create an argument for women’s full equality before the law. Bringing together renowned Muslim scholars and experts, anthropologists who have carried out fieldwork in family courts, and human rights and women’s rights activists from different parts of the Muslim world, from Morocco to Egypt and Iran, this book develops a framework for rethinking Islamic Law and its traditions in ways that reflect contemporary realities and understandings of justice and gender rights.

Posted on by Mark Movsesian · 2 Comments

Papal Resignation: The Canon Law

It just shows you. Even an institution as ancient and traditional as the papacy still retains the ability to shock. Pope Benedict’s announcement today that he will resign for health reasons, effective February 28, seems to have taken everyone, including Vatican insiders, by surprise. It is the first papal resignation since the year 1415.

Canon law on papal resignation is surprisingly – or, come to think of it, unsurprisingly – brief. Canon 332(2) of the current Code of Canon Law provides simply that ” If it happens that the Roman Pontiff resigns his office, it is required for validity that the resignation is made freely and properly manifested but not that it is accepted by anyone.” A leading commentary notes that Canon 332(2) does not specify the person or persons to whom a pope must manifest his resignation. Some scholars argue that the college of cardinals, as the body that elects the pope, is the proper recipient. But that’s not entirely clear; anyway, in Catholic understanding, the pope has authority to determine such matters for himself. Most likely, today’s announcement at a consistory, in which the Pope stressed that he was taking this step voluntarily and in full recognition of its gravity, will suffice. Anyway, the college of cardinals will no doubt have a chance to receive the resignation, if that action is required, before it elects Pope Benedict’s successor, most likely next month.

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five:

1. Toleration: Is There a Paradox? by Jeremy Waldron (N.Y.U. School of Law) [158 downloads]

2. Queering Schools, GSAs and the Law: Taking on God, by Donn Short (U. of Manitoba Faculty of Law) [110 downloads]

3. Constitutionalism: East Asian Antecedents, by Tom Ginsburg (U. of Chicago Law School) [77 downloads] 

4. The Firearm and the ‘Culture of Death’: Foundational Presuppositions and Fundamental Questions, by Kevin P. Lee (Campbell U. Law School) [68 downloads]

5. The Causes and Cures of Unethical Business Practices – A Jewish Perspective, by Steven H. Resnicoff  (DePaul U. College of Law) [66 downloads]

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McCrea on The Veil Ban and European Law

Ronan McCrea (University College London) has posted The Ban on the Veil and European Law. The abstract follows. NB: The full text is behind a paywall.

This article argues that the fate of veil bans under European law is uncertain. It shows that European commitments to free speech and freedom of religion cannot accommodate an absolute ban justified solely on grounds of the offensiveness of the veil. However, a ban that applies to public face-covering in general (rather than a ban that only targets the veil), that relates to the specific (though admittedly broad) context of social life and that provides some exceptions allowing the veil to be worn in specific religious or expressive contexts, has a reasonable chance of being upheld by European courts despite the significant infringement of personal autonomy it would involve.

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Hill on Theism, Naturalism, and Liberalism

John Lawrence Hill (Indiana U., Robert H. McKinney School of Law) has posted Theism, Naturalism, and Liberalism: John Stuart Mill and the “Final Inexplicability” of the Self. The abstract follows.

The purpose of this essay is to explore what often is overlooked in political and constitutional discussions of the relationship between law and religion. Law and religion are not natural adversaries. They are thought to conflict today not simply because secular law must create a space for competing religious viewpoints. The source of the conflict runs much deeper. It is nothing if not metaphysical–a conflict of worldviews.

This essay explores the metaphysical conflicts between the religious and the secular-naturalist worldviews by examining the philosophy of John Stuart Mill. I chose Mill not only because he is arguably the most important liberal philosopher of all time, the thinker who transformed liberalism from the older, classical to the modern, progressive ideal, but because he also had a well-developed metaphysical conception of human nature which is so strikingly in tension with his political liberalism. Mill’s “harm principle,” developed in On Liberty, is the true philosophical source of the modern right of privacy. And his overarching justification for liberty as a means of self-individuation is the dominant idea of freedom today. Yet Mill was a deeply conflicted thinker–a utilitarian who was drawn to romanticism, a political libertarian and a metaphysical determinist, a naturalist who rejected God, soul, and self, who nevertheless made self-individuation the real animating justification for political liberty.

The contradictions within Mill’s thought are the contradictions of liberalism itself. They are ultimately our contradictions–and they derive from our own ambivalent attachments to theism and naturalism.

Posted on by Marc O. DeGirolami · 1 Comment

On Corporations, Their Purposes, and Their “Exercise of Religion” Under RFRA

Kevin Walsh (Richmond) has a superb post about the question whether for-profit corporations are “persons” who “exercise religion” pursuant to RFRA.  He makes his claims in the context of criticizing a recent panel decision of the Third Circuit.  You should read the whole thing, but here is a selection:

RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion” unless the government satisfies strict scrutiny. 42 U.S.C. § 2000bb-1(a) (emphasis added). In the U.S. Code, “person” ordinarily encompasses “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. Nothing in RFRA excludes corporations generally. To the contrary, it is plain that corporations can assert claims under RFRA. The only Supreme Court case applying RFRA against the federal government involved a claim asserted by a corporation, O Centro Espírita Beneficente União do Vegetal . . . .

When one analyzes the claim, it turns out that the argument is not really about the meaning of the word “person” (even though the conclusion of the argument purports to be a claim about the meaning of this word). Rather, the argument pivots on “exercise of religion.” In the words of the district court opinion adopted by the Third Circuit, “a for-profit, secular corporation cannot exercise religion.”

Again, the claim is not that corporations cannot engage in exercise of religion. After all, corporations can, and do, exercise religion. Consider, for example,Church of Lukumi Babalu Aye, Inc. or Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints. The claim, rather, is limited to “secular, for-profit corporations.” But the claim rests on a mistake about “exercise of religion” under federal law and a mistake about corporate action.

For Kevin’s arguments about the meaning of “exercise of religion” under RFRA and about the purposes of corporate action, read the post.  I will add that on the former point, it is unquestionably the case that as a historical matter, refusals to behave in a certain way may be “exercises of religion”: two of the earliest religious exemption questions — the Quakers’ resistance to military conscription and the opposition in some religious communities to swearing oaths — take just this form.

Posted on by Marc O. DeGirolami

Podcast on “First Amendment Institutions”

Paul Horwitz and I discuss his book in this podcast, the latest in the Federalist Society’s worthwhile series of conversations on new books.

Our written exchange is here.

Posted on by JCPW

Around the Web This Week

Some interesting law & religion stories from around the web this week: