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Lipez on The Judaism of Louis Brandeis

Hon. Kermit Lipez (US Court of Appeals, 1st Circuit) has posted Doing Justice: The Judaism of Louis Brandeis. The abstract follows.

There are many ways to think about justice, some philosophical, others more pragmatic. My own leanings are pragmatic. I have never been embarrassed to say that “justice means doing the right thing,” understanding that some elaboration may be necessary. Nonetheless, it was reassuring to discover that the great Supreme Court Justice Louis Brandeis had a similar pragmatic bent. I made this discovery when I was preparing a Yom Kippur sermon about Justice Brandeis. I had been puzzled for some time by Justice Brandeis famous statement, “Justice is but truth in action.” What exactly did he mean? Although the answer to that question, set forth in my sermon, includes a discussion of Justice Brandeis attitude toward his Judaism, I think that discussion has relevance for lawyers and judges of all religions. That relevance should not be surprising. There is a commonality between law and religion. They both teach us to do the right thing.

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Bernardini on Religious Liberty in the Catholic-Muslim Dialogue

Paola Bernardini (Pontifical U. St. Thomas Aquinas, Rome) has posted Religious Liberty: A Common Challenge for Catholic-Muslim Dialogue. The abstract follows.

Comparing the struggles of the Church on the subject of religious liberty with those in course of progress within Islam may be conducive to greater interreligious understanding. It is not by chance that Muslim and Christian scholars have adopted this approach on more than one occasion. Even Pope Benedict XVI, speaking to the Roman Curia at the end of 2006, seemed to implicitly acknowledge this fact when he stated that “the Muslim world today finds itself facing an extremely urgent task . . . very similar to the one . . . imposed upon Christians beginning in the age of the Enlightenment”: namely the task of recognizing the freedom of faith and finding appropriate solutions in this regard. Starting from this presumption, the present paper will be divided mainly into two parts. Part I will briefly illustrate the positions of the Church before and after the Second Vatican Council. Part II will delve into the positions of some modern Islamic Organizations, countries, and scholars on the civil right to religious freedom.

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Around the Web This Week

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

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Rienzi on Religious Liberty for Money-Makers

Mark Rienzi (Catholic University of America – Columbus School of Law) has posted God and the Profits: Is There Religious Liberty for Money-Makers? The abstract follows.

Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many religions impose, and at least some businesses follow, religious requirements for the conduct of profit-making businesses. Thus businesses can be observed to engage in actions that are obviously motivated by religious beliefs: from preparing food according to ancient Jewish religious laws, to seeking out loans that comply with Islamic legal requirements, to encouraging people to “know Jesus Christ as Lord and Savior.” These actions easily qualify as exercises of religion.

It is widely accepted that religious freedom laws protect non-profit organizations. The argument for denying religious freedom in the for-profit context rests on a claimed categorical distinction between for-profit and non-profit entities. Yet a broad examination of how the law treats these entities in various contexts severely undermines the claimed categorical distinction. Viewed in this broader context, it is clear that denying religious liberty rights for profit-makers would actually require singling out religion for disfavored treatment in ways forbidden by the Free Exercise Clause and federal law.

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Helfand on Implied Consent and the Contraception Mandate

Michael Helfand (Pepperdine University School of Law) has posted What is a ‘Church’?: Implied Consent and the Contraception Mandate. The abstract follows.

This Article considers the “religious employer” exception to the “contraception mandate” – that is, the “preventative care” requirements announced by Department of Health and Human Services pursuant to the Patient Protection and Affordable Care Act. This exception has triggered significant litigation with a variety of employers claiming that they have been excluding from the “religious employer” classification in violation of both the First Amendment and the Religious Freedom Restoration Act. In considering these claims, this Article applies an “implied consent” framework to these cases, which grounds the authority of religious institutions in the presumed consent of their members. On such an account, consent can be assumed so long as members understood the unique religious objectives of the institution when they joined, thereby implicitly authorizing the institution to make rules related to accomplishing these uniquely religious objectives. Building on this implied consent framework, this Article argues that the First Amendment should protect institutions from the requirements of the contraception mandate so long as these institutions were both organized around a core religious mission and where that religious mission was open and obvious to employees. In such circumstances, courts should presume that employees recognized the unique religious objectives of their employer and thereby implicitly authorized their employer to make rules related to achieving these religious goals.

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Pepperdine Law Review Publishes Religious Legal Theory Symposium

Papers from the third annual Religious Legal Theory Conference, organized by Bob Cochran and Mike Helfand at Pepperdine in 2012, have appeared in the Pepperdine Law Review. A great collection of papers, available on the law review’s website, here. Congratulations to Bob and Mike.

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Powell on Islamic Law in Turkey

Russell Powell (Seattle University School of Law) has posted Evolving Views of Islamic Law in Turkey. The abstract follows.

The tradition of Kemalist secularism (laiklik) in Turkey is often cited to distinguish Turkey as an exceptional case among predominantly Muslim countries. While it is true that the Turkish Constitution, laws, and legal opinions approach the relationship between the state and religion very differently than those of Iran, Saudi Arabia, Egypt, or even Indonesia, it would be wrong to underestimate the role that religion plays in the formation of Turkish legal norms, including citizen understanding of those norms. There is a wealth of literature describing the nature of Turkish secularism and its evolution. A number of both quantitative and qualitative studies inquire about the preference for Shari’a among Turkish voters. The typical question asks whether respondents favor the establishment of a Shari’a state. Over the past fifteen years, these surveys have received response rates ranging between five and twenty-five percent in favor of such a state. However, these results are extremely problematic, because they do not provide any context or meaning for “the establishment of a Shari’a state,” either for those who favor it or for those who oppose it. This study begins to unpack the range of possible meanings attributed to Shari’a within Turkey, both among voters and among intellectuals, as a framework for future empirical studies and as a basis for deeper understandings of the role of Islam within Turkish law and politics.

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Wachtel, “The Faith of Remembrance”

The Faith of RemembranceThis past January, University of Pennsylvania Press published The Faith of Remembrance by Nathan Wachtel (Collège de France). The publisher’s description follows.

In a series of intimate and searing portraits, Nathan Wachtel traces the journeys of the seventeenth- and eighteenth-century Marranos—Spanish and Portuguese Jews who were forcibly converted to Catholicism but secretly retained their own faith. Fleeing persecution in their Iberian homeland, some sought refuge in the Americas, where they established transcontinental networks linking the New World to the Old. The Marranos—at once Jewish and Christian, outsiders and insiders—nurtured their hidden beliefs within their new communities, participating in the economic development of the early Americas while still adhering to some of the rituals and customs of their ancestors. In a testament to the partial assimilation of these new arrivals, their faith became ever more syncretic, mixing elements of Judaism with Christian practice and theology.

Read more

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Pope Francis, “On Heaven and Earth”

Image Books recently announced it would publish the first English-language edition of On Heaven and Earth: Pope Francis on Faith, Family and the Church in the 21st Century by Jorge Mario Bergoglio, the newly elected Pope Francis.  On Heaven and Earth was first published in Latin America and Spain during 2010, and Image Books, a division of Random House, will publish an English-language edition on May 7, 2013.  The publisher’s description follows.

From the man who became Pope Francis, Jorge Mario Bergoglio shares his thoughts on religion, reason, and the challenges the world faces in the 21st century with Abraham Skorka, a rabbi and biophysicist.

For years Cardinal Jorge Mario Bergoglio, archbishop of Argentina, and Rabbi Abraham Skorka were tenacious promoters of interreligious dialogues on faith and reason. They both sought to build bridges among Catholicism, Judaism, and the world at large. On Heaven and Earth, originally published in Argentina in 2010, brings together a series of these conversations where both men talked about various theological and worldly issues, including God, fundamentalism, atheism, abortion, homosexuality, euthanasia, same-sex marriage, and globalization. From these personal and accessible talks comes a first-hand view of the man who would become pope to 1.2 billion Catholics around the world in March 2013.

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Report: As Cardinal, Pope Supported Civil Unions As Alternative to Same-Sex Marriage

This will cause a stir. The New York Times reports that, in a private meeting with bishops in 2010, then-Cardinal Jorge Mario Bergoglio endorsed the idea of civil unions for gay couples as an alternative to same-sex marriage.

The suggestion came in the context of debate over legalizing same-sex marriage in Argentina. Although Cardinal Bergoglio vehemently and publicly opposed the law, the Times reports, at a private meeting of the Catholic bishops conference he supported civil unions as a compromise–“the lesser of two evils,” according to the cardinal’s authorized biographer. According to the Times, this suggestion “inflamed” the meeting, and the conference voted down the suggestion. Argentina eventually legalized same-sex marriage.

The Times argues that “Cardinal Bergoglio’s readiness to reach out across the ideological spectrum and acknowledge civil unions for gay people could raise expectations that he would do the same as pope,” but concedes that Pope Francis may have less need, and ability, to compromise on the issue. Anyway, in political terms, civil unions seems to be an idea whose time has passed–it’s doubtful that gay rights supporters would settle for anything less than marriage at this point.