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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).

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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.

Posted on by Dan Crane · 25 Comments

How Would Jesus Rule on Same-Sex Marriage?

As the U.S. Supreme Court prepares to rule on same-sex marriage, Christians on both sides of the issue continue to invoke Jesus in support of their position.  Or, more precisely, they invoke a vision of ethics and morality (i.e., inclusivity vs. traditional moral values) that they associate with Christian teaching.  But how would Jesus actually have responded if asked “how should the Supreme Court rule on same-sex marriage?”

That’s anachronistic, of course, but it’s the kind of question that “teachers of the law” routinely flung at Jesus, usually with the intention of entrapping or discrediting him.  The legal elite of Jesus’ day peppered him with hot button legal and ethical questions like “should we pay taxes to Caesar” and “to whom do I owe neighborly duties?”  Often, these questions involved marriage and sexuality:  May a man divorce a woman for any and every reason?  How should a woman caught in adultery be punished?  If a woman marries seven different husbands in succession and then dies herself, which one is she married to in Heaven?  It’s not hard to imagine CNN legal analyst Jeff Toobin cornering Jesus and asking him, “Hey Jesus, how about same-sex marriage?”

It would be presumptuous of me to say how Jesus would answer that question, so I won’t.  But I will offer three observations from things Jesus actually said in response to similar questions.

First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective.  On one side, we hear that marriage is about procreation and child rearing.  On the other, that it’s about love and companionship.  But Jesus did not understand marriage primarily in terms of its temporal or material effects.  For Jesus, marriage was a spiritual representation of divine relationships.  According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead.  Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride.  Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God.  Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.

This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world.  Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs.  We’ve lost any sense of human institutions as good because of their correspondence to divinity.  Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.”  It’s safe to say that Jesus would have had a different take.

Second, and in some tension with my first observation, Jesus might have responded to a question about same-sex marriage by distinguishing between the spiritual ideal and pragmatic legal rules.  That is what Jesus did on divorce.  When asked whether a man should be allowed to divorce a woman for any and every reason, Jesus responded that Mosaic law allowed for divorce because of the hardness of people’s hearts, but that things weren’t that way from the beginning.  Jesus was not advocating a change in the law, but a change in people’s hearts.

Christian thinkers have long debated the distinction between legal and spiritual marital norms.  When Britain was liberalizing its divorce laws in the 1940s, my two favorite Christian writers, J.R.R. Tolkien and C.S. Lewis, took different views on whether Christians should advocate that secular legal institutions mirror the spiritual ideal.  Tolkien opposed the divorce reforms on the grounds that the spiritual should inform the legal.  Lewis argued for a pragmatic differentiation between the spiritual and the legal.  In my view, Lewis was closer to the position staked by Jesus.

Finally, chances are that Jesus’ answer would go to issues far beyond the narrow question presented.  This was almost invariably Jesus’ pattern when confronted with hot-button legal issues. He always found the question itself less important than the darkness it exposed.  Thus, he turned the question about paying taxes to Caesar into condemnation of his questioners’ failure to honor God, the adultery penalty question into an indictment of his interlocutors’ self-righteousness, and the divorce question into an exposé of spiritual hardness.  I shiver to think of how he might turn the same-sex marriage question back on us.  All of us.

Posted on by Mark Movsesian

Welcome Back to Dan Crane

Welcome Back to Dan Crane (left), who will be guest posting with CLR Forum this month and next. Dan is the Frederick Paul Furth, Sr. Professor of Law at Michigan. He joined us last fall for an online debate with Barak Richman on antitrust and the clergy employment. Great to have you back, Dan!

Posted on by Marc O. DeGirolami

More Complicated

In chapter 6 of The Tragedy of Religious Freedom, I discuss Cass Sunstein’sThe Tragedy of Religious Freedom work on judicial minimalism and focus on a particular variation–Burkean minimalism.  The method that I adopt for resolution of various religious liberty disputes draws on Burkean minimalism in several respects, but also departs from it in significant ways.  My differences with Professor Sunstein are summed up in the aphorism, “Less Burkeanism, More Burke,” and the discussion in that chapter considers the ways in which Sunstein’s views about minimalism–which are pragmatically grounded–differ from my own–which are grounded in the reality of the complexity of political affairs, the conflict of human aspirations, and the irreducibility of human interests to any overarching theory.  The method that I describe and defend is motivated, in part, by these complications.

Notwithstanding my admiration for judicial minimalism–and, indeed, for Simplerminimalism as a general, guiding ethic of political life–I am not the first to suppose that Sunstein’s attachment to it was always less than entirely secure.  It was, as he himself acknowledged, strategic and instrumental.  This is why I am somewhat disappointed, but not very surprised, to see that Sunstein has recently published Simpler: The Future of Government.  Of course, the book is not about the judiciary; it describes Sunstein’s time at the head of OIRA.  Its overall claims seem to rest on the assertion that government has become simpler during the last four years, that it will or ought to become simpler still, and that this is a wonderful thing.  I have not read the book, and will of course defer to Professor Sunstein on the question whether the government has issued fewer regulations as a numerical matter.  Government during the last four years does not seem so very much simpler to me than it was before, but I’m prepared to be persuaded otherwise.  But apart from these descriptive issues, I have the distinct feeling that I will resist in particularly strong terms the normative claim–which seems to be made in the book–that the simplification of government is for the best.  Indeed, it seems to me that a true minimalist would press just the opposite point: we are complex, and we need a government that can account for, and accommodate, that complexity.  We don’t need simpler; we need more complicated.

Posted on by Mark Movsesian

Lecture at Fordham on Conversion in Jewish Law (April 16)

On Tuesday, April 16, Fordham’s Institute on Religion, Law & Lawyer’s Work will host the Martin J. Hertz Lecture in Jewish Law and Culture: “How Concepts of Jewish Peoplehood Inform Legal Rulings.” The lecture will be delivered by Rabbi David Ellenson of Hebrew Union College-Jewish Institute of Religion:

Disputes surrounding the nature of conversion to Judaism are at the center of some of the most contentious legal debates taking place in modern Jewish jurisprudence. In this lecture, diverse rulings issued by Orthodox rabbis on matters related to conversion will be presented and analyzed. In so doing, it will be shown that these decisions do not simply present Jewish legal judgment in an instant case, Rather, these holdings are policy stances that rabbis are advancing in order to define membership in the Jewish people in an era where intermarriage is common and where the borders of the Jewish community are often porous and indeterminate. It will argued that way in which each individual rabbinic decisor views the notion of Jewish peoplehood serves as an independent and often decisive variable in informing the decisions that rabbis issue in these cases.

Details are here.

Posted on by Mark Movsesian

Blogging the Religious Legal Theory Conference

TouroI spent this morning at the fourth annual Religious Legal Theory Conference, hosted this year by Sam Levine at Touro Law School. I moderated a panel, “Religious Legal Theory and the Perspectives of ‘Others.'” The idea for the panel, which was Sam’s, was to bring together scholars who write about law in religious traditions other than their own, something that I tried to do a few years ago at the first Religious Legal Theory Conference with my essay, Fiqh and Canons.

The presentations were interesting and covered a variety of perspectives. Randy Lee (Widener) spoke about his experience as a Christian studying Jewish law. He said that this experience had taught him the importance of “listening Jewish”–to find the best in others. He wondered whether “Godly lawyers” who listened to clients in this way might actually transform lives. In response to a question from me, Randy stated that he did not think that all lawyers who study religious law would have his experience, or should; but, in studying Jewish law, he realized that he himself was a “variable,” not a “constant,” and that he himself had been transformed.

David Friedman (Santa Clara) is an atheist who studies the history of religious legal systems. He argued that Jewish and Islamic law both rest in part on pre-existing, decentralized  “feud systems,” characterized by private retaliation for wrongs. He gave examples from both systems. Friedman also addressed the problems that arise in legal systems that have God, rather than humans, as “the legislator,” and the various interpretive devices such systems employ to mitigate what seem to be disproportionate penalties called for in sacred scripture- Islamic law rules calling for amputation as punishment for theft, for example.

Philip Ackerman-Lieberman (Vanderbilt), who is Jewish, spoke about his work on the interactions between Islamic and Jewish commercial law in medieval Cairo. He argued that scholars should not concern themselves only with a comparison of legal details, but should study social and legal structures as a whole. Structural analysis reveals that the Islamic legal culture and Jewish legal subculture influenced each other in a kind of “dialogue.” The two systems shared ideas, but also differentiated themselves from one another–and in this differentiation may be found the distinctive elements of each legal tradition. Philip suggested that the study of legal theory and commercial practice in medieval Cairo could have an impact on contemporary issues faced by Islam and Judaism.

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Around the Web This Week

Here are some interesting law & religion stories from around the web this week:

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Himes, “Christianity and the Political Order”

HimesThis April, Orbis Books published Christianity and the Political Order: Conflict, Cooptation, and Cooperation by Kenneth R. Himes (Boston College). The publisher’s description follows.

Beyond electoral campaigns and government structures, the relationship between the political realm and Christianity has always involved the important questions of how we ought to live together, and how we should organize and govern our common life. As the author notes, politics—and the political choices we make—must be “guided by considerations of national and global justice and peace and, for Christians, by the teachings of Jesus,” as interpreted by tradition.

Himes examines the relationship between Christianity and politics from the teachings of the Old and New Testaments through the patristic and medieval eras and the age of reform to the age of revolution, and throughout the twentieth century into the third millennium. He takes on questions of the role of the church in politics, responsible voting, concerns of globalization, and issues of human rights and war and peace.

Posted on by JCPW

Ferrari & Pastorelli (eds.), “The Burqa Affair Across Europe: Between Public and Private Space”

This July, Ashgate Publishing Company will publish The Burqa Affair Across Europe: Between Public and Private Space edited by Alessandro Ferrari (University of Insubria) and Sabrina Pastorelli (University of Milan). The publisher’s description follows.

In recent years, the wearing of the full-face veil or burqa/niqab has proved a controversial issue in many multi-cultural European societies. Focusing on the socio-legal and human rights angle, this volume provides a useful comparative perspective on how the issue has been dealt with across a range of European states as well as at European institutional level. In so doing, the work draws a theoretical framework for the place of religion between public and private space. With contributions from leading experts from law, sociology and politics, the book presents a comparative and interdisciplinary approach to one of the most contentious and symbolic issues of recent times.