Posted on by Marc O. DeGirolami

District Court Rejects September 11 Cross Challenge

In my book, The Tragedy of Religious Freedom, I have a chapter that tells “A Tale of Four Crosses” in an effort to flesh out my approach to questions of religious liberty, and specifically government display of religious symbols.  One cross in the tale is the September 11 cross–a collection of beams which fused together amid the debris of the tragedy and was discovered by a rescue worker.  The cross provided inspiration, solace, and hope to many people who were grieving at the time.  After various developments, the state decided to display the cross in a museum about the events on that day, but this was opposed by American Atheists, Inc.  I conclude in that chapter that, applying my method (and not the Supreme Court’s tests), display of the cross in a state museum is almost certainly constitutional.

Applying the Supreme Court’s tests, the United States District Court for the Southern District of New York agreed.  In an opinion issued March 28, the court granted the defendants’ motion for summary judgment in a case brought by American Atheists, Inc., which challenged the constitutionality of displaying the September 11 cross in a state museum.  The Port Authority donated the cross to the National September 11 Memorial and Museum at the World Trade Center Memorial Foundation, Inc.  The Foundation attempted to display the cross in the museum, but American Atheists sued to block this from happening on Establishment Clause grounds.

That claim was rejected by the district court (Batts, J.).  After finding that the activities of the Foundation constitute state action, the court laid out the Establishment Clause standard in Lemon v. Kurtzman and the Supreme Court’s subsequently elaborated “endorsement” test.  The parties agreed that display of the cross satisfied Lemon’s requirement of “secular purpose,” inasmuch as the reason for its display was “historical and secular.”  As to secular “effect” (which generally is the same as perceived “endorsement” in this context), the court said this–and note in particular the permissibility of “acknowledgment” on the part of the state:

[S]ince the cross is housed in the Museum, its inclusion–in the September 11 Museum context with placards to explain why it was included in the Historical Exhibit–does not advance or endorse religion.

Plaintiffs assert that because the cross was used during Christian religious ceremonies, it is unlike historic religious objects that are housed in museums.  They, however, cite no case law making such a distinction.  Rather, the fact that the artifact is housed in the Historical Exhibit helps to negate any “sacred message” even though it “undeniably has a religious message.” . . . . Also helping to negate any potential endorsement is the fact that the explanatory placards will accompany the artifact . . . . Moreover, the acknowledgement that many rescuers and volunteers found [solace] in the cross is not an endorsement of their religion . . . .

Plaintiffs also argue that because the artifact is seventeen feet tall, its size signals endorsement because no other artifact is as large as the cross . . . . Although the size of the item may be a factor in determining whether government endorsement exists, here, the cross is seventeen feet tall because that was the artifact’s size when it was found.

Posted on by Michael Helfand

Enforcing the “Jewish Prenup”

Thanks to Mark for the invitation back to the CLR Forum for a guest post.  Yesterday, a couple of law blogs (see here and here) picked up a story in the Jewish Daily Forward about an important Connecticut state court decision that enforced what is often referred to as the “Jewish Prenup” (“In Victory for ‘Chained’ Wives, Court Upholds Orthodox Prenuptial Agreement“).  I’ve written a bit about the decision previously, but wanted to explain a little bit more about what is at stake.  [UPDATE: Here’s a copy of the decision Light v. Light reprinted from Westlaw with permission of Thomson Reuters.  If you wish to check the currency of this case by using KeyCite on Westlaw, then you may do so by visiting www.westlaw.com.”]

Under Jewish law, only a husband can initiate a Jewish divorce.  Moreover, if a husband is “coerced” into granting a divorce, then the divorce is considered invalid.  This combination of rules has caused some significant problems for Orthodox Jewish women seeking to end their marriage where their husband refuses to grant them a Jewish divorce document.  In order to address this growing problem, a number of Jewish organizations – most prominently, the Beth Din of America – created a prenuptial agreement, which is now signed by a growing number of Orthodox Jewish couples.  This agreement’s most salient feature is a provision where the husband agrees to provide his wife with financial support in the amount of $150 per day “so long as the two . . . remain married according to Jewish law.”  The purpose of this provision is to walk a fine line between placing financial pressure on the husband to ensure he grants the divorce without placing so much pressure so as to render any subsequent divorce granted by the husband “coerced” (for a recent article exploring various considerations on this and related points, see here starting on page 12).

It was this support provision that was enforced by the Connecticut Superior Court in its recent decision in the case of Light v. Light.  In so doing, the court considered the husband’s claim that enforcing the prenuptial agreement would violate the First Amendment by requiring the court to “consider[] religious doctrines and ceremonies.”  However, the court rejected this argument, holding that the prenuptial agreement could be interpreted and enforced in accordance with “neutral principles of law”:

In the present case, a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.

It is important to note here that the prenuptial agreement does not require the husband to grant his wife a Jewish divorce.  Indeed, courts have differed as to whether a contract in which a husband agrees to grant his wife a religious divorce is enforceable; the issue raised in such cases is whether or not civil enforcement of a contract that requires a husband to grant a religious divorce violates the religion clauses of the First Amendment (for contrasting views, see here and here).  By contrast, the prenuptial agreement simply requires the husband to make support payments, thereby avoiding these potential First Amendment problems.

This decision – which is in my view both correctly decided and well reasoned – is likely to have significant impact on any future cases involving this increasingly popular prenuptial agreement.  The “Jewish prenup” has done an impressive job of avoiding a variety of both constitutional objections and Jewish Law conundrums.  And as a result, this prenuptial agreement is likely to go quite far in protecting Orthodox Jewish women by providing them with the financial leverage necessary to ensure that they receive their religious divorces from otherwise reluctant husbands.

Posted on by JCPW

Around the Web This Week

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

Posted on by JCPW

Hefner, Hutchinson, Mels & Timmerman (eds.), “Religions in Movement”

ReligionsinMovementThis month, Routledge published Religions in Movement: The Local and the Global in Contemporary Faith Traditions edited by Robert Hefner (Boston University), John Hutchinson (London School of Economics), Sara Mels (UCSIA, Belgium), and Christiane Timmerman (University of Antwerp). The publisher’s description follows.

There has long been a debate about implications of globalization for the survival of the world of sovereign nation-states, and the role of nationalism as both an agent of and a response to globalization. In contrast, until recently there has been much less debate about the fate of religion. ‘Globalization’ has been viewed as part of the rationalization process, which has already relegated religion to the dustbin of history, just as it threatens the nation, as the world moves toward a cosmopolitan ethics and politics. The chapters in this book, however, make the case for the salience and resilience of religion, often in conjunction with nationalism, in the contemporary world in several ways.

This book highlights the diverse ways in which religions first and foremost make use of the traditional power and communication channels available to them, like strategies of conversion, the preservation of traditional value systems, and the intertwining of religious and political power. Nevertheless, challenged by a more culturally and religiously diversified societies and by the growth of new religious sects, contemporary religions are also forced to let go of these well known strategies of preservation and formulate new ways of establishing their position in local contexts. This collection of essays by established and emerging scholars brings together theory-driven and empirically-based research and case-studies about the global and bottom-up strategies of religions and religious traditions in Europe and beyond to rethink their positions in their local communities and in the world.

Posted on by JCPW

Atanassow & Boyd (eds.), “Tocqueville and the Frontiers of Democracy”

TocquevilleThis April, Cambridge University Press will publish Tocqueville and the Frontiers of Democracy edited by Ewa Atanassow (Bard, Berlin) and Richard Boyd (Georgetown University). The publisher’s description follows.

Alexis de Tocqueville is widely cited as an authority on civil society, religion, and American political culture, yet his thoughts on democratization outside the West and the challenges of a globalizing age are less known and often misunderstood. This collection of essays by a distinguished group of international scholars explores Tocqueville’s vision of democracy in Asia and the Middle East; the relationship between globalization and democracy; colonialism, Islam, and Hinduism; and the ethics of international relations. Rather than simply documenting Tocqueville’s own thoughts, the volume applies the Frenchman’s insights to enduring dilemmas of democratization and cross-cultural exchanges in the twenty-first century. This is one of the few books to shift the focus of Tocqueville studies away from America and Western Europe, expanding the frontiers of democracy and highlighting the international dimensions of Tocqueville’s political thought.

Posted on by Mark Movsesian · 7 Comments

A Bunny is a Bunny

I guess it was bound to happen. A public elementary school in Alabama has renamed its annual Easter Egg Hunt to avoid giving offense to non-Christian children and parents. According to the school’s principal, Lydia Davenport, the hunt will still take place; it will just no longer have the word “Easter” attached to it. The seasonal rabbit will likewise go nameless:

“Kids love the bunny,” smiles Davenport, “and we just make sure we don’t say ‘the Easter bunny’ so that we don’t infringe on the rights of others because people relate the Easter bunny to religion; a bunny is a bunny and a rabbit is a rabbit,” Davenport concluded.

Well, you can’t argue with that. Most disputes about public holiday displays in America involve Christmas, of course. This is so, I think, because Easter, although far more important as a religious holiday, is relatively minor as a public holiday. Perhaps that’s because it falls on a Sunday. Compared to Christmas, Easter passes by almost without notice in America. But there’s no reason we can’t fight over it as well. Let the Easter Wars begin.

Posted on by Marc O. DeGirolami · 1 Comment

Allitt Reviews Frazer’s “The Religious Beliefs of America’s Founders”

I’m also a little late in noticing this very well-done review by Patrick Allitt (history, Emory), some of whose on-line courses I have listened to in the car.  He discusses a book by Gregg Frazer, The Religious Beliefs of America’s Founders: Reason, Revelation, Revolution (2012).  A bit from Professor Allitt’s thoughtful conclusion:

I learned much from The Religious Beliefs of America’s Founders, but closed it unsure of how the author would address two possible criticisms. First, he offers a narrow definition of “Christianity” likely to offend many readers. Millions of liberal Protestants today would certainly describe themselves as Christians while actually holding to a faith Frazer himself would call theistic rationalism. In his view, it’s not enough to call yourself a Christian; you must also affirm the doctrinal fundamentals. He comes from a circle of evangelical historians that has transformed American historiography in the last 30 years. Its superb leading figures—George Marsden, Nathan Hatch, and Mark Noll—have forced American historians to take evangelical religion more seriously than ever before as a major factor in the nation’s history. So far as I know, however, they never denied the term “Christians” to members of the diverse groups that make up most of the American religious landscape.

Second, and on a closely related matter, Frazer never says of most figures in his book whether they did or did not call themselves Christians. It is clear that Washington and Franklin avoided using the term and that Jefferson only occasionally accepted it. But what about Madison, Gouverneur Morris, James Wilson, or Alexander Hamilton? Frazer admits that the evidence about them is rather more ambiguous but never says outright whether they accepted or applied the term to themselves. In other words, while adding “theistic rationalism” to “deism” and “Christianity” as possible categories of belief among America’s founders, he has shrunk “Christianity” to mean rather less than it did at the time of the Revolution itself.

Posted on by Mark Movsesian · 1 Comment

State Court Says Orthodox Jewish Prenup Is Constitutional: Husband Must Give Get

We’re a little late getting to this, but the Jewish Daily Forward reports on a recent Connecticut trial court’s decision to enforce a prenuptial agreement that requires a husband to grant his wife a religious divorce under Jewish law. The prenup between two Orthodox Jews, Rachel and Eben Light, provides that, in the event the couple divorce, Eben must give Rachel a get, or ritual document recognizing the divorce in Jewish law. In fact, the prenup has a liquidated damages clause: for each day Eben refuses to give the get, he must pay Rachel $100 in damages. As of today, the damages may exceed $100,000.

The Connecticut court held that the prenup does not violate the Religion Clauses. Although there have been other cases enforcing Jewish prenups, this is apparently the first recorded case in which this particular prenup, drawn up by the Beth Din of America, a major Jewish-law arbitration tribunal,  has been enforced in the civil courts. The decision will be appealed. 

Posted on by Mark Movsesian

Anthony Kennedy: Catholic Jurist?

At the Huffington Post, U-Texas grad student William Blake writes about a study he conducted on the impact of the justices’ religious views on Supreme Court decisions. (The study, published in the Political Research Quarterly, is here). Although not as important as other factors, Blake maintains, the justices’ religious views do have a limited impact on their decisions. In cases “connected to religion,” he writes, Catholic justices are “more likely to support the position of the Catholic Church” than their Protestant and Jewish colleagues.

Now, I’m no expert in statistics, so perhaps I’m missing something. But the main example of religious influence Blake cites in his Huffington Post piece is a bit surprising. It’s Justice Anthony Kennedy. According to Blake, the Catholic concept of “human dignity” has influenced Kennedy’s jurisprudence. For example, “Kennedy has written two important majority opinions in support of gay rights using dignity as a concept”:

In Roemer v. Evans, Kennedy viewed a Colorado constitutional amendment that prevented gays from seeking discrimination protection as a disadvantage imposed out of “animosity” to gays. In Lawrence v. Texas, the Supreme Court struck down a state law criminalizing gay sexual conduct. Justice Kennedy began his majority opinion in Lawrence with the following observation: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

It’s not at all clear that the Catholic concept of human dignity, which informs so much of international human rights law, has very much in common with the understanding of autonomy in cases like Lawrence. And things get even stranger when Blake turns to Kennedy’s abortion jurisprudence:

Justice Kennedy’s record on abortion, on the other hand, is more conservative. Biographer [Frank] Colucci describes some of Kennedy’s abortion opinions as containing “paternalistic and moralistic language.” In one abortion case, Justice Kennedy wrote: “Respect for human life finds an ultimate expression in the bond of love the mother has for her child. Whether to have an abortion requires a difficult and painful moral decision…[S]ome women come to regret their choice.”

The case Blake quotes is Gonzales v. Carhart, in which the Court upheld the constitutionality of the federal partial-birth abortion ban. That’s certainly a “conservative” decision, as the Court’s abortion jurisprudence goes. But it’s difficult to see how the statement Blake quotes reflects a specifically Catholic sensibility. Plenty of secular-minded judges would say similar things. And there’s the even more glaring fact that Justice Kennedy co-wrote the joint opinion in Casey, with its famous “sweet mystery of life” passage–an opinion that hardly reflects a Catholic view of abortion.

Maybe Blake has better evidence in his paper. Actually, it wouldn’t shock me if religion had some influence on the justices’ decision-making in Religion Clause cases–though I suspect it would be very hard to disentangle religion from factors like upbringing and general worldview. But Anthony Kennedy as a Catholic jurist? Not too convincing. (H/T: John Barrett).

Posted on by

Şahin, The Empire and Power in the Reign of Süleyman

Empire and PowerNext month Cambridge University Press will publish Empire and Power in the Reign of Süleyman: Narrating the Sixteenth-Century Ottoman World by Kaya Şahin (Indiana University). The publisher’s description follows.

Kaya Şahin’s book offers a revisionist reading of Ottoman history during the reign of Süleyman the Magnificent (1520–1566). By examining the life and works of a bureaucrat, Celalzade Mustafa, Şahin moves beyond traditional, teleological approaches and argues that the empire was built as part of the Eurasian momentum of empire building, and demonstrates the imperial vision of sixteenth-century Ottomans. This unique study shows that, in contrast with many Eurocentric views, the Ottomans were active players in European politics, with an imperial culture in direct competition with that of the Habsburgs and the Safavids. Indeed, this book explains Ottoman empire building with reference to the larger Eurasian context, from Tudor England to Mughal India, contextualizing such issues as state formation, imperial policy, and empire building in the period more generally. Şahin’s work also devotes significant attention to the often-ignored religious dimension of the Ottoman-Safavid struggle, showing how the rivalry redefined Sunni and Shiite Islam, laying the foundations for today’s religious tensions.