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Around the Web This Week

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

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Chakrabarty, “Confluence of Thought”

9780199951239This August, Oxford University Press will publish Confluence of Thought: Mahatma Gandhi and Martin Luther King, Jr. by Bidyut Chakrabarty (University of Delhi). The publisher’s description follows.

While much has been written about the Mahatma Gandhi and Martin Luther King, Jr., never before has anyone compared the social and political origins and evolution of their thoughts on non-violence. In this path-breaking work, Bidyut Chakrabarty argues that there is a confluence between Gandhi and King’s concerns for humanity and advocacy of non-violence, despite the very different historical, economic and cultural circumstances against which they developed their ideas. At the same time, he demonstrates that both thinkers were truly shaped by their historical moments, evolving their approaches to non-violence to best advance their respective struggles for freedom.

Gandhi and King were perhaps the most influential individuals in modern history to combine religious and political thought into successful and dynamic social ideologies. Gandhi emphasized service to humanity while King, who was greatly influenced by Gandhi, pursued religion-driven social action. Chakrabarty looks particularly at the way in which each strategically used religious and political language to build momentum and attract followers to their movements. The result is a compelling and historically entrenched view of two of the most important figures of the twentieth century and a thoughtful meditation on the common threads that flow through the larger and enduring nonviolence movement.

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D’Costa, Evans, Modood & Rivers (eds.), “Religion in a Liberal State”

xlThis August, Cambridge University Press will publish Religion in a Liberal State edited by Gavin D’Costa, Malcolm Evans, Tariq Modood, and Julian Rivers (all University of Bristol). The publisher’s description follows.

As religion has become more visible in public life, with closer relations of co-operation with government as well as a force in some political campaigns, its place in public life has become more contested. Fudged compromises of the past are giving way to a desire for clear lines and moral principles. This book brings the disciplines of law, sociology, politics and theology into conversation with one anther to shed light on the questions thrown up by ‘religion in a liberal state’. It discusses practical problems in a British context, such as the accommodation of religious dress, discrimination against sexual minorities and state support for historic religions; considers legal frameworks of equality and human rights; and elucidates leading ideas of neutrality, pluralism, secularism and public reason. Fundamentally, it asks what it means to be liberal in a world in which religious diversity is becoming more present and more problematic.

Posted on by Mark Movsesian

House Hearing on Religious Minorities in Syria

CLR Forum reader Anahid Ugurlayan kindly points us to an important joint subcommittee hearing yesterday at the US House of Representatives, Religious Minorities in Syria: Caught in the Middle. Co-sponsored by the Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations and the Subcommittee on the Middle East and North Africa, the hearing heard from four witnesses, including USCIRF Commissioner Zuhdi Jasser. The hearing extensively addressed the plight of Syria’s Christians.

The whole hearing is worthwhile, but the testimony of the Hudson Institute’s Nina Shea is particularly useful. Shea concedes that “no religious community has been spared suffering” in Syria’s civil war. But “Syria’s ancient Christian minority” faces an existential threat:

Christians, however, are not simply caught in the middle, as collateral damage. They are the targets of a more focused shadow war, one that is taking place alongside the larger conflict between the Shiite-backed Baathist Assad regime and the largely Sunni rebel militias. Christians are the targets of an ethno-religious cleansing by Islamist militants and courts. In addition, they have lost the protection of the Assad government, making them easy prey for criminals and fighters, whose affiliations are not always clear.

Shea documents anti-Christian incidents, some of them quite harrowing. She recommends, among other things, that the US Government direct aid to institutions caring for Christian refugees (who often fear going to refugee camps); expedite immigration applications from Syrian Christians; and ensure that none of its assistance to the Syrian opposition finds its way into the hands of Islamist groups responsible for the ethnic cleansing of Christians.

Posted on by Mark Movsesian

District Court Rules in Favor of Big Mountain Jesus

Image from the Flathead Beacon

An update on a story we’ve been following: Yesterday, a federal district court ruled that the US Forest Service did not violate the Establishment Clause by renewing a permit for “Big Mountain Jesus” (left), a six-foot-tall statue on land the Service leases to a private ski resort in Big Mountain, Montana. The statue has been in place since 1954, when the Knights of Columbus donated it–though this part is a matter of some dispute–as a war memorial. In response to an objection from the Freedom From Religion Foundation (FFRF), the Service decided not to renew the statue’s permit in 2011. This decision led to public outcry–the service received 95,000 comments in less than two months–and the Service reversed itself, whereupon the FFRF sued.

Under current Supreme Court precedent, official display of a religious symbol violates the Establishment Clause if a reasonable observer would think that the government is endorsing a religious message. In yesterday’s opinion, the court ruled that a reasonable observer would not perceive an official endorsement of religion in the case of Big Mountain Jesus. The statue is on land the government leases to a private owner and is maintained by a private organization–facts an inscription on the statue’s base explains. Many observers would be unaware of any governmental involvement at all. Moreover, although a statue of Jesus is obviously a Christian symbol, the secular, even irreverent associations of this particular statue minimize any religious message. At least some people think of the statue as a war memorial. Some people value the statue’s historical significance. And most observers, the court suggested, see the statue as a kind of campy joke: “Typical observers of the statue are more interested in giving it a high five or adorning it in ski gear than sitting before it in prayer.”

It’s unfortunate that current doctrine favors the trivialization of a religious symbol as evidence of its constitutionality, but that’s where we are. (Remember the candy canes and reindeer around the creche?) The court also noted that Big Mountain Jesus had been around for about 60 years before anyone had thought to object. This, too, is an important factor under Supreme Court precedent: “longevity demonstrates that ‘few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect.'”

The Becket Fund for Religious Liberty, which intervened in the case on behalf of the Knights of Columbus and other parties, has a press release about the case here. The FFRF says it will likely appeal.

Posted on by Mark Movsesian

CLR Faculty at Annual Law and Religion Roundtable

This week, CLR Director Mark Movsesian and Associate Director Marc DeGirolami will participate in the Annual Law and Religion Roundtable, hosted this year at Stanford Law School. Now in its fourth year, the  ALRR “provides a forum for scholars of religious freedom to share cutting-edge works and engage in discipline-shaping conversations.” Movsesian will present an early-stage project on the Psychic Sophie case and the rise of the Nones. DeGirolami will participate in the meeting as a discussant.

Posted on by Marc O. DeGirolami

Supreme Court to Hear Abortion Protest Restriction Case

The Supreme Court has granted certiorari in McCullen v. Coakley, a case out of Massachusetts involving a free speech challenge to a law that makes it a crime for speakers other than clinic “employees or agents…acting within the scope of their employment” “to enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of a “reproductive health care facility.” The Court’s decision in Hill v. Colorado (2000) is also arguably in play. In Hill, the Court (6-3) upheld a Colorado statute making it unlawful for a person within 100 feet of an abortion clinic entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass leaflets, display signs, or engage in oral protests, education, or counseling of that person.

See this post and the linked amicus brief authored by our friend and CLR Forum former guest Kevin Walsh for argument about how the Court could strike down the Massachusetts law in McCullen without overturning (or even disturbing the core holding of) Hill.

Posted on by Mark Movsesian

Bayir, “Minorities and Nationalism in Turkish Law”

As Walter Russell Mead notes, the recent falling-out between Germany and Turkey over Turkey’s accession to the EU confirms what Samuel Huntington wrote in the 1990s: Deep civilizational divides continue to exist and are impossible to ignore. Notwithstanding Kemalist dreams of transformation, Muslim-majority Turkey and liberal, secularist Europe represent different ways of being. It was never clear how the two could successfully merge in one political entity. Under Erdogan’s AKP, the marriage seems further away than ever.

A recent book from Ashgate, Minorities and Nationalism in Turkish Law, seems like it would provide helpful background to today’s events. The author, Derya Bayir, is a lawyer who specializes in international human rights and the Turkish legal system. Here’s the publisher’s abstract:

Examining the on-going dilemma of the management of diversity in Turkey from a historical and legal perspective, this book argues that the state’s failure to accommodate ethno-religious diversity is attributable to the founding philosophy of Turkish nationalism and its heavy penetration into the socio-political and legal fibre of the country. It examines the articulation and influence of the founding principle in law and in the higher courts’ jurisprudence in relation to the concepts of nation, citizenship, and minorities. In so doing, it adopts a sceptical approach to the claim that Turkey has a civic nationalist state, not least on the grounds that the legal system is generously littered by references to the Turkish ethnie and to Sunni Islam. Also arguing that the nationalist stance of the Turkish state and legal system has created a legal discourse which is at odds with the justification of minority protection given in international law, this book demonstrates that a reconstruction of the founding philosophy of the state and the legal system is necessary, without which any solution to the dilemmas of managing diversity would be inadequate. Adopting an interdisciplinary approach, this timely book will interest those engaged in the fields of Middle Eastern, Islamic, Ottoman and Turkish studies, as well as those working on human rights and international law and nationalism.

Posted on by Marc O. DeGirolami

Law and Religion in Justice Thomas’s Fisher Concurrence

As Supreme Court followers will already know, the Court issued decisions in several cases today, including an employment discrimination case, a case about the reach of the Necessary and Proper Clause (take note, my old students!), and, of course, a case dealing with affirmative action in public universities.

There isn’t much involving law and religion in any of these cases. But not nothing either. I am still digesting Fisher v. University of Texas, but the upshot seems to be a clarification of sorts by the Court that, in applying a strict scrutiny standard in this context, while deference is due to a university’s belief in the importance of “the educational benefits flowing from student body diversity,” deference is not due to the manner in which the university attempts to achieve the asserted interest in diversity (where narrow tailoring of the means to the end is necessary). Good faith efforts by the university to achieve narrow tailoring are not sufficient to satisfy the narrow tailoring element of strict scrutiny. Justice Kennedy, writing for the Court, offered this: “Strict scrutiny must not be ‘strict in theory but fatal in fact.’….But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.” The case was vacated and remanded to the Fifth Circuit for reconsideration in light of the Court’s clarification of the applicable standard.

In a sizable and strongly worded concurrence, Justice Thomas agreed that the Fifth Circuit did not apply strict scrutiny but also argued that the Court should have overruled Grutter v. Bollinger, where the Court offered its fullest statement about educational diversity. Justice Thomas’s concurrence is framed in large part as a series of comparisons between arguments made by segregationists and arguments made by proponents of what he calls “race discrimination” in admissions, among which is the following:

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U. S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually. . . . [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good—a positive good”); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115–116 (D. Faust ed. 1981) (“Slavery, as it is said in an eloquent article published in a Southern periodical work . . . ‘has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth’”); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 (“They are elevated from the condition in which God first created them, by being made our slaves”) . . . .

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. “‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” See Metro Broadcasting, 497 U. S., at 610 (O’Connor, J., dissenting). It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications, regardless of whether the government has benevolent motives. See, e.g., Johnson, 543 U. S., at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand, 515 U. S., at 227 (“[A]ll racial classifications, imposed by whatever federal, state,or local governmental actor, must be analyzed by a reviewing court under strict scrutiny”); J. A. Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”). The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.

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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 remained #2, Laycock has been replaced by Alvare as #3, Willis has remained #4, and Vischer has been replaced by Lombardi as #5:

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) [534 downloads]

2. Must We Be Faithful to Original Meaning?  by Jack M. Balkin (Yale  U. – Law School) [239 downloads]

3.  No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom by Helen M. Alvare (George Mason U., School of Law) [165 downloads]

4. Taxes and Religion: The Hobby Lobby Contraceptive Cases  by Steven J. Willis (U. of Florida) [142 downloads]

5. Designing Islamic Constitutions: Past Trends and Options for a Democratic Future by Clark B. Lombardi (U. of Washington, School of Law) [104 downloads]