An Exchange on Claudia Haupt’s “Religion-State Relations in the United States and Germany”

Here is a nice, short, and generally quite positive review by Markus Thiel (Cologne) of Claudia Haupt’s Religion-State US Germany(Columbia) recent book, Religion-State Relations in the United States and Germany: The Quest for Neutrality (CUP 2011).  Professor Haupt has an interesting reply as well just below the review.  The exchange is worthwhile among other reasons on the question of the value of comparative scholarship in this area.  From Professor Thiel’s review:

The reviewer is an avowed skeptic about the scientific benefit of comparative research in constitutional law in general. It oftentimes achieves the sole result that the legal world is colorful and diversified. Therefore, it is more reasonable to compare particular (legal) provisions and institutions and not the legal system on the whole. But even this approach has to keep in mind that a comparison is complicated by diverging legal and social frameworks and circumstances. It is all the more important for comparative constitutional and political research to provide a precise description of the applied scientific methods, the questions of interest, and the objects of research. The author commences her book with a substantial and instructive chapter on her understanding of a comparative approach. Here, the reader notices that the book restricts its view on questions regarding the interpretation and application of legal provisions. This may be due to the fact that it is based on a dissertation in Political Sciences, but especially the relevant articles of the German Grundgesetz should have been the starting point for any analysis of the neutrality principle in Germany. A German reader with a legal background misses the presentation of the relevant constitutional law “dogmatics” to a certain extent.

And from Professor Haupt’s reply:

Comparative constitutional law in particular benefits from a wide-angle view not merely focused on doctrinal questions. Doctrinal rules, the law on the books, may play out much differently in practice. Take, for example, the paradigmatic example in U.S. religion-state relations, the much maligned Lemon test. Technically, as a matter of blackletter law, Lemon still governs; but engagement with religion-state relations that goes beyond examining the current doctrine in the United States quickly uncovers that, first, the test itself is under siege; second, case law suggests that it does not apply in a number of circumstances; and finally, there is a trajectory of development that suggests the U.S. system of religion-state relations is on a different path altogether, one that is more concerned with the meaning of neutrality than the mechanical application of this three prong test. In short, we learn very little about religion-state relations in the United States from looking at the Lemon test. By contrast, studying the larger societal, historical, and political context allows scholars to identify trends that put the doctrine into perspective.

Another Episcopal Church Property Dispute

This time it’s in South Carolina. Yesterday’s Wall Street Journal reports (subscription required)  on litigation between two rival factions in the Episcopal Diocese of South Carolina. One faction, representing the leadership and about two-thirds of the membership, broke away from the national Episcopal Church in November over the national body’s liberal approach to sexuality and other issues. The minority faction has remained loyal to the national body. Both factions assert ownership of the diocese’s property, including St. Michael’s Church in Charleston (above). In total, the diocese’s church buildings, grounds, and cemeteries are worth around $500 million.

Church property disputes have become increasingly common in America, as local congregations distance themselves from more liberal national church bodies. In the Episcopal Church alone, there have been a dozen such disputes in the past few decades. Human nature being what it is, each side in such a dispute thinks of itself as the true depository of the faith, with a moral, and legal, right to church property.

Civil courts have adopted a couple of different approaches to resolving such disputes, depending on how the relevant legal instruments are written: the “deference” approach, which defers to the decision of the highest authority within the church structure, and the “neutral principles of law” approach, which attempts to resolve disputes using standard property law principles. Both approaches try to promote church autonomy by insulating internal church government and theological questions from civil court review.

I’m not sure which approach the South Carolina courts take. At the moment, the fight is whether the litigation should be in South Carolina courts at all. The national body is seeking to remove the action to federal court, where, I assume, it thinks it will get a more receptive hearing. Whichever court hears the case, the track record of prior litigation suggests the national body should be confident of ultimate victory –though of course it depends on how the deeds, trust documents, and bylaws are written. For civil-law purposes, the Episcopal Church is a hierarchical church, and courts would normally defer to the highest authority within the church–I assume that’s the national body– on ownership of church property. That’s what happened in a recent case involving the Fall Church in Virginia. If the national body wants to recognize the smaller, loyal faction as the rightful owners of church property, the majority faction will likely have to find somewhere else to pray.

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. God and the Profits: Is There Religious Liberty for Money-Makers? by Mark Rienzi (Catholic U. of America – Columbus School of Law) [243 downloads]

2. Suffer the Teenage Children: Child Sexual Abuse in Church Communities by Patrick Parkinson (U. of Sydney – Faculty of Law) [229 downloads]

3. Rethinking Religious Reasons in Public Justification  by Andrew F. March (Yale U.) [207 downloads]

4. Bankrupting the Faith by Pamela Foohey (U. of Illinois College of Law) [143 downloads]

5. And I Don’t Care What It Is: Religious Neutrality in American Law by Andrew Koppelman (Northwestern U. School of Law) [133 downloads]

Astoria on The Endorsement Test and Equal Status

Ross Astoria (U. of Wisconsin, Parkside) has posted The Endorsement Test and Equal Status. The abstract follows.

Since its inception, jurists and legal scholars have hotly contested the utility and fairness of the endorsement test. For its detractors, the endorsement test is unanchored in the constitutional text, devoid of limitations on the exercise of judicial power, and accordingly produces misguided outcomes. In contrast, its remaining adherents think the endorsement test expresses the basic democratic value of equality, and therefore find it worthy of preservation.

This paper is an attempt to reinvigorate the endorsement test
by more concisely articulating the relationship between endorsing and equality. As the endorsement test is presently conceived and employed, however, this relationship is oblique at best. In order to foreground equality, then, the endorsement test requires significant modification, which I propose in Section III. The primary purpose of these modifications is to assign to the norm of equal status the central role in Establishment Clause jurisprudence, particularly in those cases conventionally dubbed “display cases.” As far as I can tell, this is a new approach to religion clause jurisprudence. To test the modified endorsement test, I tease out its implications by applying it to several cases and scenarios.

In what follows, I first introduce the norm of equal status by
comparing it with other norms which religion clause theorists often take as salient (Sec. II). I then introduce the modification to the endorsement test, showing in the process how the endorsement test, as presently conceived, fails to foreground the norm of equal status (Sec. III). Finally, I apply the modified endorsement test to several common display case scenarios (Sec. IV). In the conclusion, I say a few things about the superiority of the modified endorsement test (Sec. V).

McKnight & Modica (eds.), “Jesus is Lord, Caesar is Not”

3991Last month, InterVarsity Press published Jesus Is Lord, Caesar Is Not: Evaluating Empire in New Testament Studies, edited by Scot McKnight (U. of Nottingham) and Joseph B. Modica (Eastern U.). The publisher’s description follows:

The New Testament is immersed in the often hostile world of the Roman Empire, but its relationship to that world is complex.

What is meant by Jesus’ call to “render unto Caesar” his due, when Luke subversively heralds the arrival of a Savior and Lord who is not Caesar, but Christ? Is there tension between Peter’s command to “honor the emperor” and John’s apocalyptic denouncement of Rome as “Babylon the Great, the mother of harlots”?

Under the direction of editors Scot McKnight and Joseph B. Modica, respected biblical scholars have come together to investigate an increasingly popular approach in New Testament scholarship of interpreting the text through the lens of empire. The contributors praise recent insights into the New Testament’s exposé of Roman statecraft, ideology and emperor worship. But they conclude that rhetoric of anti-imperialism is often given too much sway. More than simply hearing the biblical authors in their context, it tends to govern what they must be saying about their context. The result of this collaboration, Jesus Is Lord, Caesar Is Not, is a groundbreaking yet accessible critical evaluation of empire criticism.

NB: Peter Leithart reviews the book at First Things.