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Muñoz, “Religious Liberty and the American Constitution: The Essential Cases and Documents”

In July, Rowman & Littlefield  will publish Religious Liberty and the American Constitution: The Essential Cases and Documents by Vincent Phillip Muñoz (U. of Notre Dame). The publisher’s description follows.

Throughout American history, legal battles concerning the First Amendment’s protection of religious liberty have been among the most contentious issue of the rights guaranteed by the United States Constitution.  Religious Liberty and the American Constitution: The Essential Cases and Documents represents the most authoritative and up-to-date overview of the landmark cases that have defined religious freedom in America.  Noted religious liberty expert Vincent Philip Muñoz (Notre Dame) provides carefully edited excerpts from over fifty of the most important Supreme Court religious liberty cases.  In addition, Muñoz’s substantive introduction offers an overview on the constitutional history of religious liberty in America.  Introductory headnotes to each case provides the constitutional and historical context.  Religious Liberty and the American Constitution will be an indispensable resource for anyone interested matters of religious freedom from the Republics earliest days to current debates.

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Cesari, “Why the West Fears Islam: An Exploration of Muslims in Liberal Democracies”

9781403969538In July, Palgrave Macmillan  will publish Why the West Fears Islam: An Exploration of Muslims in Liberal Democracies by Jocelyne Cesari (Harvard University). The publisher’s description follows.

Are Muslims threatening the core values of the West? Jocelyne Cesari responds to this question by providing first-hand testimonies of Muslims in France, Germany, the United Kingdom, the Netherlands, and the United States. Her book is an unprecedented exploration of Muslims’ religious and political life based on several years of field work in Europe and in the United States.Through a methodic investigation, she explains that Burqa, hijab, and minarets are threatening because Islam has become the external and internal Enemy of the West, especially since 9/11. Her book explains how Islam in the West has been connected to the War on Terror, how the presence of Islam in secular spaces has triggered a western politics of fear, exacerbated by the prominence of some intolerant Islamic interpretations of women, sexual minorities and non believers. The book’s unique, interdisciplinary scope allows for an in-depth analysis of data polls, surveys, political discourses, policy programs, interviews, and focus groups with Muslims. Ultimately, this book provides unique insights into the reality of Muslims in Europe and in the USA and unveils how western liberalism and secularism have been deeply transformed since 9/11.

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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. Since last week, Wenger has remained #1, Balkin has risen to #2, Laycock and Berg have risen to #3, Gaylord has risen to #4, and Rienzi has been replaced by Willis:

1. ‘The Divine Institution of Marriage’: An Overview of LDS Involvement in the Proposition 8 Campaign by Kaimipono David Wenger (Thomas Jefferson School of Law) [514 downloads]

2. Must We Be Faithful to Original Meaning?  by Jack M. Balkin (Yale  U. – Law School) [219 downloads]

3. Protecting Same-Sex Marriage and Religious Liberty by Douglas Laycock (U. of Virginia School of Law) and Thomas C. Berg (U. of St. Thomas School of Law) [183 downloads]

4. For-Profit Corporations, Free Exercise, and the HHS Mandate  by Scott Gaylord (Elon U. School of Law) [159 downloads]

5. Taxes and Religion: The Hobby Lobby Contraceptive Cases  by Steven J. Willis (U. of Florida) [127 downloads]

Posted on by Marc O. DeGirolami

NYC Council Passes Equal Access Resolution for Churches to School Property

Via Walter Russell Mead, I learn that the New York City Council passed a resolution on Wednesday calling for the granting of equal access to churches and houses of worship to public school property (it calls for new legislation to amend the New York State Education Law in this respect). We have on various occasions discussed the “serpentine path” of litigation in the Bronx Household of Faith case, and it appears from Mead’s report that several Council members who opposed the resolution (as well as schools Chancellor Dennis Walcott) made a public statement citing the concerns of the Board of Education that by granting access, the school might be “appearing to endorse religion.” The Council’s resolution may have been spurred by the events in the Southern District of New York.

I have argued before that it is an intrinsic feature of the endorsement test that it leads to Establishment Clause bloat, in which endorsement is replaced by the “appearance” of endorsement in a kind of infinite regress of subjectivity which enables courts to bloat the Establishment Clause without going to the trouble of ruling that a particular activity actually does violate the Establishment Clause. Here, though, I only want to note that Mead’s view that “the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties” is, in my view, correct. The best work on the subject that I know of indicates that as a historical matter, while state use of religious buildings was problematic on Establishment Clause grounds, religious use of public buildings was not. I discuss some of this work in chapter 10 of The Tragedy of Religious Freedom. Of course, depending on one’s views, that is not necessarily conclusive on the question whether the Constitution forbids such use today.

Posted on by Mark Movsesian

Is Yoga Constitutional?

Last month, I  wrote about a controversy surrounding the White House’s inclusion of a yoga garden in its annual Easter Egg Roll. The problem is this: yoga is a Hindu spiritual practice. Arguably, therefore, state-sponsored yoga is a religious endorsement that violates the Establishment Clause under existing Supreme Court case law.

Yoga Class at Encinitas School (New York Times)

It turns out that very issue is being litigated this week in a California  court. The Encinitas Union School District has introduced yoga as part of the phys ed program in elementary schools. Some parents object that the program highlights yoga’s spiritual elements and amounts to religious indoctrination. The school argues that it has eliminated religious references and that what remains is nothing more than an enriched gym class. An Indiana University religious studies professor who testified at trial demurs. She says that that it would be odd, from a Hindu perspective, to separate yoga’s physical and spiritual elements.

Under Supreme Court precedent, government can separate “cultural” from “religious” messages and promote the former. That’s why official Christmas displays with reindeer and elves survive constitutional scrutiny, but not solo nativity scenes. The logic is that the secular decorations swamp the religious message and ensure that passersby don’t think the government is endorsing Christianity, as opposed to Christianity’s cultural accretions.

This logic has saved some Christmas displays, but offended some Christians. To them, the Supreme Court’s reasoning suggests an unfortunate hostility to their religion: Christmas is acceptable in the public square only if its spiritual associations are diluted. To be sure, the Supreme Court  has said only that official displays must avoid religious associations, but people rarely compartmentalize things so logically. Culture often follows law.

So here’s a question: if official yoga programs are allowed on the theory that they have been scrubbed of religious associations, will pious Hindus object?Will people start demanding to keep the yoga  in yoga?

Posted on by JCPW

Around the Web This Week

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

Posted on by JCPW

Rzeznik, “Church and Estate”

978-0-271-05967-9mdIn July, Penn State Press will publish Church and Estate: Religion and Wealth in Industrial-Era Philadelphia by Thomas F. Rzeznik (Seton Hall University). The publisher’s description follows.

In Church and Estate, Thomas Rzeznik examines the lives and religious commitments of the Philadelphia elite during the period of industrial prosperity that extended from the late nineteenth century through the 1920s. The book demonstrates how their religious beliefs informed their actions and shaped their class identity, while simultaneously revealing the ways in which financial influences shaped the character of American religious life. In tracing those connections, it shows how religion and wealth shared a fruitful, yet ultimately tenuous, relationship.

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Cohen, “Divine Service? Judaism and Israel’s Armed Forces”

Divine Service_PPC.QXD_radicalism unveiledThis July, Ashgate will publish Divine Service? Judaism and Israel’s Armed Forces by Stuart A. Cohen (Ashkelon Academic College, Israel). The publisher’s description follows.

Religion now plays an increasingly prominent role in the discourse on international security. Within that context, attention largely focuses on the impact exerted by teachings rooted in Christianity and Islam. By comparison, the linkages between Judaism and the resort to armed force are invariably overlooked. This book offers a corrective. Comprising a series of essays written over the past two decades by one of Israel’s most distinguished military sociologists, its point of departure is that the establishment of the state of Israel in 1948, quite apart from revolutionizing Jewish political activity, also triggered a transformation in Jewish military perceptions and conduct. Soldiering, which for almost two millennia was almost entirely foreign to Jewish thought and practice, has by virtue of universal conscription (for women as well as men) become a rite of passage to citizenship in the Jewish state. For practicing orthodox Jews in Israel that change generates dilemmas that are intellectual as well as behavioural, and has necessitated both doctrinal and institutional adaptations. At the same time, the responses thus evoked are forcing Israel’s decision-makers to reconsider the traditional role of the Israel Defence Force (IDF) as their country’s most evocative symbol of national unity.

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Reilly et al., eds., “Religion, Gender, and the Public Sphere”

routledgeIn July, Routledge will publish Religion, Gender, and the Public Sphere edited by Niamh Reilly (NUI) and Stacy Scriver (NUI). The publisher’s description follows.

The re-emergence of religion as a significant cultural, social and political, force is not gender neutral. Tensions between claims for women’s equality and the rights of sexual minorities on one side and the claims of religions on the other side are well-documented across all major religions and regions. It is also well recognized in feminist scholarship that gender identities and ethno-religious identities work together in complex ways that are often exploited by dominant groups. Hence, a more comprehensive understanding of the changing role and influence of religion in the public sphere more widely requires complex, multidisciplinary and comparative gender analyses.

Most recent discussion on these matters, however, especially in Europe, has focused primarily on the perceived subordinate status of Muslim women. These debates are a reminder of the deep interrelation of questions of gender, identity, human rights and religious freedom more generally. The relatively narrow (albeit important) purview of such discussions so far, however, underscores the need to extend the horizon of enquiry vis-à-vis religion, gender and the public sphere beyond the binary of ‘Islam versus the West’.  Religion, Gender and the Public Sphere moves gender from the periphery to the centre of contemporary debates about the role of religion in public and political life. It offers a timely, multidisciplinary collection of gender-focused essays that address an array of challenges arising from the changing role and influence of religious organisations, identities, actors and values in the public sphere in contemporary multicultural and democratic societies.

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Kaskowitz, “God Bless America”

god blessIn July, Oxford University Press will publish God Bless America: The Surprising History of an Iconic Song by Sheryl Kaskowitz (Harvard). The publisher’s description follows.

“God Bless America” is a song most Americans know well. It is taught in American schools and regularly performed at sporting events. After the attacks on September 11th, it was sung on the steps of the Capitol, at spontaneous memorial sites, and during the seventh inning stretch at baseball games, becoming even more deeply embedded in America’s collective consciousness.

In God Bless America, Sheryl Kaskowitz tells the fascinating story behind America’s other national anthem. It begins with the song’s composition by Irving Berlin in 1918 and first performance by Kate Smith in 1938, revealing an early struggle for control between composer and performer as well as the hidden economics behind the song’s royalties. Kaskowitz shows how the early popularity of “God Bless America” reflected the anxiety of the pre-war period and sparked a surprising anti-Semitic and xenophobic backlash. She follows the song’s rightward ideological trajectory from early associations with religious and ethnic tolerance to increasing uses as an anthem for the Christian Right, and considers the song’s popularity directly after the September 11th attacks. The book concludes with a portrait of the song’s post-9/11 function within professional baseball, illuminating the power of the song – and of communal singing itself – as a vehicle for both commemoration and coercion. A companion website offers streaming audio of recordings referenced in the book, links to videos of relevant performances, appendices of information, and an opportunity for readers to participate in the author’s survey.

Based on extensive archival research and fieldwork, God Bless America sheds new light on cultural tensions within the U.S., past and present, and offers a historical chronicle that is full of surprises and that will both edify and delight readers from all walks of life