Posted on by Marc O. DeGirolami

Gerber on Religious Freedom in Rhode Island

Rhode Island is celebrating the 350th anniversary of its royal colonial charterRhode Island Seal this year. The occasion reminds me of one of my all-time favorite cases in constitutional law, Luther v. Borden, in which the struggle over the representative failings of the charter and all of the attendant political intrigue so typical of the Ocean State was deemed nonjusticiable by the Supreme Court. There aren’t too many Guarantee Clause controversies any longer, but you can still spot one every so often. As my former boss, Judge William E. Smith, put it to me: “Not much has changed around here since then.”

Have a look at this interesting short piece by Professor Scott Gerber (another law clerk veteran of the US District Court for DRI) discussing religious freedom in Rhode Island. Particularly interesting are Prof. Gerber’s points about Rhode Island’s complicated history and the distinction between “liberty and license.”

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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 Since last week, Wenger, Balkin, Berg and Willis  have remained in the same slots; Vischer has been replaced by Alvare.

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) [531 downloads]

2. Must We Be Faithful to Original Meaning?  by Jack M. Balkin (Yale  U. – Law School) [234 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) [205 downloads]

4. Taxes and Religion: The Hobby Lobby Contraceptive Cases  by Steven J. Willis (U. of Florida) [135 downloads]

5. No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom by Helen M. Alvare (George Mason U., School of Law) [128 downloads]

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Onnudottir, et al., “Religious Change and Indigenous Peoples: The Making of Religious Identities”

This September, Ashgate will publish Religious Change and Indigenous Peoples: The Making of Religious Identities by Helena Onnudottir (U. Western Sydney), Adam Possamai (U. Western Sydney), and Bryan S. Turner (CUNY).  The publisher’s description follows.

Exploring religious and spiritual changes which have been taking place among Indigenous populations in Australia and New Zealand, this book focuses on important changes in religious affiliation in census data over the last 15 years. Drawing on both local social and political debates, while contextualising the discussion in wider global debates about changing religious identities, especially the growth of Islam, the authors present a critical analysis of the persistent images and discourses on Aboriginal religions and spirituality. This book takes a comparative approach to other Indigenous and minority groups to explore contemporary changes in religious affiliation which have raised questions about resistance to modernity, challenges to the nation state and/or rejection of Christianity or Islam. Helena Onnudottir, Adam Posssamai and Bryan Turner offer a critical analysis to on-going public, political and sociological debates about religious conversion (especially to Islam) and changing religious affiliations (including an increase in the number of people who claim ‘no religion’) among Indigenous populations. This book also offers a major contribution to the growing debate about conversion to Islam among Australian Aborigines, Maoris and Pacific peoples.

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Guinness, “Religious Freedom and the Making of a World Safe for Diversity”

51xANLdPHkLThis September, InterVarsity Press will publish  Religious Freedom and the Making of a World Safe for Diversity by Os Guinness (Oxford). The publisher’s description follows.

How do we live with our deepest differences?

In a world torn by religious conflict, the threats to human dignity are terrifyingly real. Some societies face harsh government repression and brutal sectarian violence, while others are divided by bitter conflicts over religion’s place in public life. Is there any hope for living together peacefully?

Os Guinness argues that the way forward for the world lies in promoting freedom of religion and belief for people of all faiths and none. He sets out a vision of a civil and cosmopolitan global public square, and how it can be established by championing the freedom of the soul—the inviolable freedom of thought, conscience and religion. In particular he calls for leadership that has the courage to act on behalf of the common good.

Far from utopian, this constructive vision charts a course for the future of the world. Soul freedom is not only a shining ideal but a dire necessity and an eminently practical solution to the predicaments of our time. We can indeed maximize freedom and justice and learn to negotiate deep differences in public life. For a world desperate for hope at a critical juncture of human history, here is a way forward, for the good of all.

Posted on by Marc O. DeGirolami

Call for Papers: “Cooperating With Evil, Complicity With Sin”

Joel Nichols and Alan Brownstein are putting together an interesting and timely panel for the Law and Religion section at the January 2014 AALS meeting, to be held in New York City. The subject of the panel is “Cooperating With Evil Complicity With Sin.” I wish I had the time to do it, but I’ve long thought that it would be interesting if a criminal law scholar who had studied accomplice liability wrote an article comparing the idea of complicity in criminal law and in various religious traditions in which complicity figures as a theologically important concept. See below for the call for papers.

Section on Law and Religion

Call for Papers for January 2014 AALS Annual Meeting Program:

“Cooperating With Evil, Complicity with Sin”

From Alan Brownstein and Joel Nichols, Program Chairs for AALS Section on Law and Religion

The AALS Section on Law and Religion invites the submission of papers or abstracts (no more than 5 pages) for the purpose of selecting one or two speakers for a panel at the Section’s program at the January 2014 AALS annual meeting in New York. The program is scheduled for Saturday, Jan. 4, 2014, from 2:00-3:45. Other invited speakers will also be on the panel also. The program description follows:

What does it mean for religious believers and groups to refrain from “cooperating with evil”? When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby “complicit” with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients.

Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation.  This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law.

Submission Deadline and Procedures: Deadline is August 15, 2013. Abstracts should be submitted by email to Joel Nichols, Univ. of St. Thomas (MN) School of Law, joel.nichols@stthomas.edu

Proposal Requirements: An abstract of not more than five pages, or a completed paper.

Presentation and Publication: Any speaker chosen from this call will be expected to produce an original substantial paper, or to have already produced a substantial paper, a draft of which  will be available to be posted on the AALS web site prior to the annual meeting and that will be published in the University of St. Thomas Law Journal (MN) during the 2013-14 academic year.

Selection and Eligibility: Selection will be by blind review. Under AALS rules, only full-time faculty members of AALS member law schools are eligible. Faculty at fee-paid law schools; foreign, visiting, and adjunct faculty members; graduate students; fellows; and non-law-school faculty are not eligible. AALS rules require any speaker to pay the annual meeting registration fee and travel expenses.

Posted on by Claudia E. Haupt

“A Coat of Many Colors”

In this post, I want to pick up some of the themes I alluded to in my first post and respond to Marc’s observations here and Mark’s observations here. The title of this post is from Justice Harlan’s discussion of neutrality in Bd. of Educ. v. Allen, 392 U.S. 236, 249 (1968)(Harlan, J., concurring).

Marc points out the inherent uncertainty as to the meaning of “neutrality” within each system. Indeed, I agree that there is great indeterminacy in both systems; and there are different judicial and academic interpretations. In fact, one of the premises in my book was that – even though the term is used frequently in constitutional decisions in both countries – we don’t really know enough about what neutrality means in each system. Given this uncertainty, I advocated for a contextual inquiry into the meaning in each system before turning to a comparative perspective.

The German Federal Constitutional Court offered two noteworthy interpretations of neutrality in its landmark Crucifix and Headscarf decisions. In my last post, I quoted the Crucifix decision as saying that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.” In the Headscarf case, the court offered its most elaborate discussion of state neutrality to date, stating that

the religious and ideological neutrality required of the state is not to be understood as a  distancing attitude in the sense of a strict separation of state and church, but as an open and comprehensive one, encouraging freedom of faith equally for all beliefs. Article 4.1 and 4.2 of the Basic Law also contain a positive requirement to safeguard the space for active exercise of religious conviction and the realisation of autonomous personality in the area of ideology and religion. The state is prohibited only from exercising deliberate influence in the service of a particular political or ideological tendency or expressly or impliedly identifying itself by way of measures originated by it or attributable to it with a particular belief or a particular ideology and in this way itself endangering religious peace in a society. The principle of religious and ideological neutrality also bars the state from evaluating the faith and doctrine of a religious group as such.

So here we have an example of the court itself setting up different interpretations of neutrality. (Professor Markus Thiel – among other insightful observations – recently raised some interesting questions regarding the interpretive role of the Federal Constitutional Court in relation to academic scholarship in our exchange here.)

A quick final point about taxation, an issue raised in the comments to Mark’s post. One of the more striking features of the German system is the concept of “limping separation” that allows for certain benefits of state-recognized religious bodies – perhaps most notably from the U.S. perspective, the collection of church taxes by the state. Mark pointed out correctly that the German church tax may be avoided by resigning church membership. And, as some may remember, the German Federal Administrative Court last year addressed the question of resigning church membership (reported for example here). Moreover, under the jurisprudence of the European Court of Human Rights, while nonadherents may be taxed by an established state church for delegated state functions (such as keeping birth and death records, maintaining cemeteries or performing marriages) they may not be taxed for religious activities. I’ve written about some of those funding aspects in comparative perspective in my recent article “Transnational Nonestablishment” published in the George Washington Law Review and available online here.

And with that, I’ll leave Lautsi and symbols for next time.

Posted on by Marc O. DeGirolami

The Look of Depraved Heart Murder: Further Thoughts on the Faith-Healing Case

In light of some reasonable questions in the comments of my faith healing post at Mirror of Justice about the distinction between ordinary recklessness and extreme recklessness showing a wanton disregard for the value of human life of the kind that can support a mens rea of malice (and therefore, in Pennsylvania, a charge of third degree murder), I thought to mention a very recent decision of the New York Court of Appeals upholding the conviction of a defendant convicted of depraved indifference murder. An important caveat: New York has a special, but I think doctrinally useful, history of attempting to pinpoint precisely what the depraved indifference mens rea looks like that does not necessarily map on to Pennsylvania law. But because I believe that the distinction between ordinary recklessness and depraved heart recklessness can only really be understood by comparing the factual particulars in actual cases–and not by recourse to any abstract principle (for those with an interest, I’ve discussed this issue previously here, here, and here)–and because the facts of the case involve a victim of similar age, the New York case is useful.

In People v. J. Borboni (decided by the Court of Appeals two days ago), the facts showed that the defendant beat a 15 month old child repeatedly around the face and body in a period of about an hour, causing massive damage. The defendant was convicted of what in New York is murder in the second degree (depraved indifference murder of a child) as well as manslaughter in the first degree (intent to cause physical injury to a child; recklessly causing the death of a child). The defendant challenged the sufficiency of the evidence as to both crimes. The standard for conviction of depraved indifference murder is that the defendant evince “an utter disregard for the value of human life,” that the defendant “did not care whether his victim lived or died.” In addition to that distinct mens rea, the state also needed to prove recklessness as to a grave risk of physical injury or death.

In upholding the conviction for depraved indifference murder, the Court distinguished another case, People v. Lewie (2011), in which the defendant “persistently left her eight month-old son with her boyfriend, whom she knew to be violent and cruel, and the man inflicted numerous wounds on the child, finally causing a brain injury that led to his death,” because the evidence was not sufficient to show that the defendant “did not care at all” about her son’s safety: “On the contrary, the evidence shows that defendant feared the worst and…hoped for the best.” Similarly, the Court distinguished People v. Matos (2012), where the defendant’s “intimate partner severely beat her 23 month-old child, resulting in his death” because there was evidence that the defendant did care about her son’s life: she “splinted her son’s leg, gave him anti-inflammatory medication, exhibited other measures to comfort him, and, when she found him bleeding and unresponsive, called 911 for help.”

In Borboni, by contrast,

[T]he jury heard testimony — including medical and forensic proof — that defendant inflicted injuries on a 15-month-old child by striking or shaking the child so brutally as to cause four distinct skull fractures. The nature of defendant’s assault on the child rendered his course of conduct more clearly depraved than had he only suspected that a third party had injured the child. Knowing the brutal origin of the injuries and the force with which they were inflicted makes it much less likely that defendant was holding out hope, as Lewie and Matos perhaps were, that the child’s symptoms were merely signs of a trivial injury or illness….

[T]he charge of depraved indifference murder here is comprised of more than the physical assault on the child; it also encompasses defendant’s inaction for the two hours that elapsed between the injuries and death. In light of the child’s vulnerability and utter dependence on a caregiver, defendant’s post-assault failure to treat the child or report his obvious injuries must be considered in assessing whether depraved indifference was shown. The People demonstrated that defendant, at the very least, left the child unattended for two hours, either disregarding, or not bothering to look for, obvious, perceptible signs that the child was seriously injured. Given defendant’s knowledge of how the injuries were inflicted and his failure to seek immediate medical attention, either directly or via consultation with his girlfriend, until it was too late, there was sufficient evidence for a jury to conclude that defendant evinced a wanton and uncaring state of mind.

The key factual difference between a case like this one and the faith healing case that I discussed yesterday involves the issue of “indifference to human life.” I only know what is contained in the report I referenced yesterday, but from those facts, it seems to me that it is very difficult to conclude that parents who believe that God will intervene to save their afflicted child have the same mens rea as someone like the defendant in Borboni. To the contrary, the most plausible conclusion is that they have just the opposite state of mind: they care deeply about their child’s well-being and believe that what they are doing is in his or her best interest.

Furthermore, I included the paragraph in Borboni relating to Borboni’s failure to report the child’s injuries to anybody else because it contrasts with what is reported in the faith-healing parents’ case. The factual similarity (failure to report in both cases) may mask the issue of motivation. The actor with a depraved heart fails to report on the victim’s condition because he doesn’t give a damn about the victim. But the faith-healing parents allegedly failed to report because they do care about the child’s condition, and they thought that by reporting they would interfere with the child’s best chance at recovery.

I emphasize again that I am emphatically not saying that the faith-healing parents do not deserve punishment. And I haven’t done the research into Pennsylvania law about depraved heart murder to really know in depth what it requires. But particularly when one is dealing with as fact-specific–and as grave–a crime as depraved heart murder, I also think it’s important to try to be precise about the nature of the defendants’ state of mind. There are lots of facts still to come out in the Philadelphia case. But in light of what has already come out, there are obvious questions about the appropriateness of a depraved heart murder charge in that case.

Posted on by Mark Movsesian · 1 Comment

Nones Across the Globe

Image from Patheos

The third largest religious affiliation in the United States is “None.” Roughly one-fifth of adult Americans tell surveyors that they have no religious affiliation at all. The rise of the Nones, which began in the 199os, is perhaps the most important development in American religious life today, raising difficult questions for traditional religious institutions and the legal system as well.

We shouldn’t think of the Nones as a uniquely American phenomenon, though. (Only Americans would be tempted to do so, probably). Here’s an interesting report from The Weekly Number, a religion website, on the percentages of Nones worldwide. The overall percentage of Nones across the globe is lower than in the US: 16%. They are distributed very unevenly. Almost 80% live in the Asia-Pacific region. About 60% live in one country, China. The entire continent of North America, by contrast, accounts for only five percent of Nones worldwide. In sub-Saharan Africa, Nones make up about two percent of the population. In the Middle East and North Africa, religiously unaffiliated people are even scarcer, comprising less than one percent of the population.

One might expect that, as China continues to rise, Nones will become an even more powerful global force. But here’s another interesting statistic. Unlike in the US, where Nones are disproportionately young, as a global population, the Nones skew old. The median age of Nones (34) is significantly higher than the median age of the overall global population (28). Who knows? Perhaps the rise of the Nones among America’s youth will be offset by the much-noted rise of Christianity among young people in the global South.

Posted on by JCPW

Around the Web This Week

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

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D’Antonio, Tuch & Baker, “Religion, Politics, and Polarization”

1442221070This month, Rowman & Littlefield Publishers will publish Religion, Politics, and Polarization: How Religiopolitical Conflict is Changing Congress and American Democracy by William V. D’Antonio (The Catholic University of America), Steven A. Tuch (George Washington U), and Josiah R. Baker (Methodist U, George Mason U). The publisher’s description follows.

Do the religious affiliations of elected officials shape the way they vote on such key issues as abortion, homosexuality, defense spending, taxes, and welfare spending? In Religion, Politics, and Polarization: How Religiopolitical Conflict is Changing Congress and American Democracy, William D’Antonio, Steven A. Tuch and Josiah R. Baker trace the influence of religion and party in the U.S. Congress over time. For almost four decades these key issues have competed for public attention with health care, war, terrorism, and the growing inequity between the incomes of the middle classes and those of corporate America. The authors examine several contemporary issues and trace the increasing polarization in Congress. They examine whether abortion, defense and welfare spending, and taxes are uniquely polarizing or, rather, models of a more general pattern of increasing ideological division in the U.S. Congress. By examining the impact of religion on these key issues the authors effectively address the question of how the various religious denominations have shaped the House and Senate. Throughout the book they draw on key roll call votes, survey data, and extensive background research to argue that the political ideologies of both parties have become grounded in distinctive religious visions of the good society, in turn influencing the voting patterns of elected officials.