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The Rise of the “Stars and Stripes” Cardinals in Rome

The College of Cardinals began its pre-conclave meetings (the so-called Congregazioni Generali) this week in Rome, with 153 members in attendance. Of them, 115 are under the age of 80, and therefore eligible to participate in the papal election. The question popping up in every Italian newspaper article and commentary is, of course, the same: who will be the new Pope?

While, for obvious reasons, it is impossible to predict the most likely outcome of the cardinals’ decision, it is true that European, and especially Italian, media have devoted particular attention to Cardinal Timothy Dolan and to American cardinals in general. For instance, two days ago the daily Corriere della Sera, the most influential Italian newspaper, had a long interview with the Archbishop of New York . Yesterday, La Repubblica published a long article on the “Stars and Stripes cardinals” and how they are approaching the conclave.

Why are American cardinals receiving so much attention? One obvious, and superficial, reason is that they are much more skilled, as compared to other cardinals, in communicating and establishing relationships with the media. But there is another factor. The United States’ ability to preserve a vocal religious presence in the public sphere has always raised interest and curiosity in Rome, and especially now, in a time when the secularization of Europe is growing at an unprecedented level. It is not to reveal a secret to say that Benedict XVI himself, on many occasions, expressed appreciation for the “American model,” a model in which religious arguments in the public sphere are heard and debated much more than in Europe.

Why did this American model fit better with Benedict XVI’s approach and teachings? According to John L. Allen, Jr., Benedict XVI, contrary to the conventional narrative, tried to shape his teachings on the basis of an “affirmative orthodoxy.” In a conversation with Archbishop Dolan (A People of Hope, Image Books, 2011) Allen defined affirmative “in the sense of being determined to present the building blocks of orthodoxy in a positive key.” The emphasis would therefore be on “what Catholicism embraces and affirms, what it says ‘yes’ to, rather  than what it opposes and condemns.” This affirmative orthodoxy works much better in a social context, like America’s, which welcomes religion in the public sphere and in which religious arguments are heard.

Today, the real challenge for the Catholic Church, especially according to many European cardinals, is religious indifference and the coming of a post-Christian world represented by a new type of man: the homo indifferens. As a result, the American experience, which represents, in many accounts, a hopeful and affirming Catholicism,  is seen as a success story in Rome. This does not mean that in a few days we will have an American Pope. But  I’m sure, like it or not, that the “American model” will matter in discussions on the future of the Church.

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Young, “Ecclesiastical Colony”

Next month, the Oxford University Press will publish Ecclesiastical Colony: China’s Catholic Church and the French Religious Protectorate by Ernest P. Young (University of Michigan). The publisher’s description follows.Ecclesiastical Colony

The French Religious Protectorate was an institutionalized and enduring policy of the French government, based on a claim by the French state to be guardian of all Catholics in China. The expansive nature of the Protectorate’s claim across nationalities elicited opposition from official and ordinary Chinese, other foreign countries, and even the pope. Yet French authorities believed their Protectorate was essential to their political prominence in the country. This book examines the dynamics of the French policy, the supporting role played in it by ecclesiastical authority, and its function in embittering Sino-foreign relations.

In the 1910s, the dissidence of some missionaries and Chinese Catholics introduced turmoil inside the church itself. The rebels viewed the link between French power and the foreign-run church as prejudicial to the evangelistic project. The issue came into the open in 1916, when French authorities seized territory in the city of Tianjin on the grounds of protecting Catholics. In response, many Catholics joined in a campaign of patriotic protest, which became linked to a movement to end the subordination of the Chinese Catholic clergy to foreign missionaries and to appoint Chinese bishops.

With new leadership in the Vatican sympathetic to reforms, serious steps were taken from the late 1910s to establish a Chinese-led church, but foreign bishops, their missionary societies, and the French government fought back. During the 1930s, the effort to create an indigenous church stalled. It was less than halfway to realization when the Chinese Communist Party took power in 1949. Ecclesiastical Colony reveals the powerful personalities, major debates, and complex series of events behind the turmoil that characterized the nineteenth- and early twentieth-century experience of the Catholic church in China.

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Witte Jr. & Nichols on the Jurisdiction of Religious Matrimonial Tribunals

John Witte Jr. (Emory University School of Law) and Joel A. Nichols (University of St. Thomas School of Law) have posted Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions. The abstract follows.

In many areas of law and society, religion and law exercise “overlapping jurisdictions.” Often such overlapping claims concern institutions that have both religious and political dimensions, such as education and schooling; charity and social welfare; and marriage and family life. It is the third of these mixed institutions – marriage and the family – that is the focus of this Essay. The headline battles today are over what forms of marriage should be recognized by the state: straight versus same sex marriage, contract versus covenant marriage, monogamous versus polygamous marriage, and more. But an emerging battle concerns not the forms of marriage, but the forums in which marriage and family cases are adjudicated. Specifically, the new battle is looming over the place of faith-based family laws and religious tribunals.

Such jurisdictional conflicts have recently resulted in a growing set of “anti-Shari’a law” statutes, first in Oklahoma and now in Kansas, South Dakota, and elsewhere. Such statutes are based on rather slender, if not specious, rationales – and on a purported study that has not been sufficiently assessed. We argue, contrary to this study, that the very few cases cited by proponents of anti-Shari’a statutes say far more about the use of ordinary principles of comity regarding the law of foreign nations, respect for the voluntary choices of individuals, and a sense of growing multiculturalism in general than they do about any sort of fanciful imposition of Shari’a law on unwitting parties. We oppose such anti-Shari’a laws for their targeted discrimination, their duplication of other laws and decisional norms, their potential conflict with the Federal Arbitration Act, and more.

But hard questions persist that cannot be easily swept away with a mere assertion that religious groups should enjoy autonomy over the marriage and family affairs of their voluntary faithful. Those are the questions that we have been probing and encouraging others to probe in this and prior writings: What are the appropriate lines between the civil state and religions with respect to marriage? Civil marriage and divorce are perhaps a least common denominator for all citizens, but can there be variations if accompanied by base level protections for women and children? And how can the state best protect vulnerable members and also advance its liberal ends? Such hard questions need not lead to a jurisdictional stand-off between law and religion, however, nor to a universal and over-reaching claim by the state. Instead, negotiation, compromise, and mutual respect may lead to more nuanced and achievable results – especially if we are careful not to be so distracted by conversations about the propriety of Shari’a that we miss the actual complications of the growing marital and legal pluralism in the United States.

Posted on by Mark Movsesian

Betting on the Conclave: Canon Law

Almost the moment Pope Benedict–now Pope Emeritus Benedict–announced his decision to retire, betting sites and prediction markets started to appear on the internet, offering people a chance to place money on the identity of his successor. There’s Paddy Power in Ireland and, for people of a more academic bent, the Intrade prediction market, which has been pretty accurate with respect to American politics.

Some readers may be wondering what Catholic canon law has to say about placing money on the outcome of a papal election. Apparently, nothing. According to this canon law blog, an earlier prohibition was abrogated in 1918, when the Catholic Church adopted the Pio-Benedictine Code. At the moment, therefore, there is no canon law on the question. So, I guess, nihil obstat. Nonetheless, as the author points out, the Catholic catechism does have advice about gambling, which Catholics should consider. Non-Catholics too, probably. And there’s the Second Commandment.

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Atiemo, “Religion and the Inculturation of Human Rights in Ghana”

Next Month, Bloomsbury Publishing will publish Religion and the Inculturation of Human Rights in Ghana by Abamfo Ofori Atiemo (University of Ghana, Legon).  The publisher’s description follows.Bloomsbury

It has been maintained that the secular nature of modern human rights makes them incompatible with the religious orientation of African and non-Western societies. However, in view of the resilience of religion in the global and local public sphere, it is important to explore how religion can contribute to the promotion and enjoyment of human rights.

Based on fieldwork conducted in Ghana, Abamfo Ofori Atiemo here establishes a convergence between human rights and local religious and cultural values in African societies. He argues that human rights represent universal ‘dream values’. This allows for a cultural embedding of human rights in Ghana and other non-Western societies. He argues that ‘dream values’ are usually presented in religious language and proclaimed, for example, by prophets and seers or expressed in certain forms of taboo, proverbs or legal norms. He employs the concept of inculturation, adaptation of the way Church teachings are presented to non-Christian cultures, as a hermeneutical tool for developing a model to understand the encounter between universal human rights and local cultures.

Offering a new model for explaining the relation between religion and human rights, Religion and the Inculturation of Human Rights in Ghana offers a novel perspective on the links between global trends and local cultures underpinned by strong currents of religious ideas.

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Arjomand & Brown (eds.), “The Rule of Law, Islam, and Constitutional Politics in Egypt and Iran”

Next month, SUNY Press will publish The Rule of Law, Islam, and Constitutional Politics in Egypt and Iran by Saïd Amir Arjomand (Stony Brook University, State University of New York) and Nathan J. Brown (George Washington University).  The publisher’s description follows.The Rule of Law

In recent years, Egypt and Iran have been beset with demands for fundamental change. The Rule of Law, Islam, and Constitutional Politics in Egypt and Iran draws together leading regional experts to provide a penetrating comparative analysis of the ways Islam is entangled with the process of democratization in authoritarian regimes. By comparing Islam and the rule of law in these two nations, one Sunni and Arab-speaking, the other Shi’ite and Persian-speaking, this volume enriches the current debate on Islam and democracy, making for a more nuanced understanding and appreciation of differences with the Muslim world, and provides an indispensible background for understanding the Green movement in Iran since 2009 and the Egyptian revolution of 2011.

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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) [189 downloads]

2. Suffer the Teenage Children: Child Sexual Abuse in Church Communities by Patrick Parkinson (U. of Sydney – Faculty of Law) [187 downloads]

3. Rethinking Religious Reasons in Public Justification  by Andrew F. March (Yale U.) [140 downloads]

4. Queering Schools, GSAs and the Law: Taking on God, by Donn Short (U. of Manitoba Faculty of Law) [121 downloads]

5. The Causes and Cures of Unethical Business Practices – A Jewish Perspective, by Steven H. Resnicoff  (DePaul U. College of Law) [118 downloads]

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Olree on James Madison’s Formative Experiences with Religious Establishments

Andy G. Olree (Faulkner U. – Jones School of Law) has posted “Pride Ignorance and Knavery”: James Madison’s Formative Experiences with Religious Establishments. The abstract follows.

Judicial interpretations of the First Amendment’s religion clauses have purported to rely heavily on the history of the American Founding era. Today, it seems no Founder carries more weight in religion clause opinions than James Madison, a seminal figure the Supreme Court has repeatedly credited as “the leading architect of the religion clauses of the First Amendment”—most recently in January 2012, as it relied heavily on Madison’s views in deciding the Hosanna-Tabor case. But courts citing Madison have tended to focus on the short period beginning with his “Memorial and Remonstrance” in 1785 and ending with the ratification of the Bill of Rights in 1791. Less frequently, a court might refer to particular subsequent events or writings from Madison’s life. But to this point, both scholars and judges have paid relatively little attention to his early, formative years, the years leading to his interest in church-state issues and his entry into politics. This Article posits that his early experiences with the Anglican religious establishment in colonial Virginia played an instrumental role in shaping his lifelong thought on church and state, in particular his interest in religious liberty and his opposition to religious establishments, religious persecution, and laws that strayed into the sphere of religion. Accordingly, the Article examines Madison’s formative experiences with religious establishments in order to provide a fuller understanding of his views of the natural right of religious liberty.

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Liviatan on the Changing Function of Law in Europe’s Cultural Debates

Ofrit Liviatan (Harvard U.) has posted From Abortion to Islam: The Changing Function of Law in Europe’s Cultural Debates. The abstract follows.

The Article rethinks the law’s role in present-day European debates over Islam in light of its calming effects on the once fiercely-fought abortion reforms across Western Europe. Using examples from Germany, Italy, France, Belgium, Britain, the Netherlands and Switzerland the article demonstrates that the role of the legal process in each of these culture-based debates diverged along its two social functions. Reflecting growing public anxieties, legal actions concerning Muslims typically focused on generating social and cultural change, foreclosing the likelihood of political compromises. In contrast, at the time of abortion reform legal measures acted as mechanisms of social and cultural order, contributing to the pacification of the fierce public controversies even as moral disagreements over abortion endured. Drawing on this comparison, the article suggests that Europe’s constitutional review processes present a compromise-building path to deliberate contemporary conflicts over Islam.

The Article proceeds in three parts. Part II and III analyze the legal developments in the context of Islam and abortion across Western Europe, revealing a contrasting dynamics in the roles of the legal process in each of these debates. Part IV assesses the effects of the legal process in each of the debates and rules out alternative explanations for this divergence. It argues that the factor of time or European secularization cannot account for the current intensity-difference in each of these debates. The article concludes by proposing a path to launch the currently absent constitutional conversation over Islamic-based tensions in Western Europe. Modeled on abortion reform, constitutional courts should reach beyond proportional balancing and dictate policy frameworks addressing both the roots of Muslim disadvantages and the anxieties of the European public.

Posted on by Marc O. DeGirolami

Me at the Anti-Defamation League’s Brodsky Conference

Tomorrow evening, I will be on a panel hosted here in Manhattan by the Anti-Defamation League, as part of its annual Edward Brodsky Legal Conference.  The panel will be moderated by Noah Feldman (Harvard); my co-panelists are David Barkey (ADL), John Malcolm (Heritage Foundation), and Louise Melling (ACLU).

The subject of the panel is “The Boundaries of Religious Freedom: Mandates, Choices, and Liberties.”  Here’s some more information.  If you have time to come, please say hello.