Our friend Rick Garnett (Notre Dame) has a short piece on Commonweal concerning the implications of the Supreme Court’s recent same-sex marriage decisions (Rick’s primary focus is the DOMA decision, United States v. Windsor) for claims of religious freedom. The essay may be usefully read, I think, as having larger application to the issue of exemptions from generally applicable laws. A bit from the conclusion of Rick’s essay:
It is easier to respect religious freedom in law and policy when everyone agrees or when governments do not do very much. With disagreement and regulation, however, inevitably comes conflict between religious commitments and legal requirements and, when it comes, the majority tends to take care of itself. What about the rest? In a constitutional democracy like ours, we are generally willing to absorb some costs and suffer some inconveniences in order to accommodate the invocation of rights by dissenting or idiosyncratic minorities, especially when the majority thinks that it has a stake in those rights. For example, America still takes a robustly libertarian approach to the freedom of speech, and protects offensive and worthless expression to an anomalous extent, because most Americans still think that protecting misuses and abuses of the right is “worth it.”
However, as religious liberty increasingly comes to be seen as something clung to by a few rather than cherished and exercised by many, as religious traditions and teachings start to strike many as the expensive and even dangerous concerns of quirky, alien margin-dwellers, and as the “benefits” of allowing religious believers’ objections or religious institutions’ independence to stand in the way of the majority’s preferred policies begin to look more like extractions by small special-interest groups than broadly shared public goods, we should expect increasing doubts about whether religious liberty is really “worth it.” We should be concerned that the characterization by the majority in Windsor of DOMA’s purpose and of the motives of the overwhelming and bipartisan majority of legislators that supported it reflects a view that those states—and religious communities—that reject the redefinition of marriage are best regarded as backward and bigoted, unworthy of respect. Such a view is not likely to generate compromise or accommodation and so it poses a serious challenge to religious freedom.
As has been widely reported, the United States Court of Appeals for the Fourth Circuit yesterday in a divided decision held that President Obama violated the Recess Appointments Clause of the Constitution in appointing three people to the National Labor Relations Board on January 4, 2012–that is, “intra-session,” during the Senate’s session beginning January 3, 2012. Judges Hamilton and Duncan held that “the Recess” in the Recess Appointments Clause of the Constitution (Article II, section 2, clause 3) means only the period between the two discrete sessions of the Senate, and that the President therefore may only use his powers under the Recess Appointments Clause inter-session. Judge Diaz dissented. The Fourth Circuit’s holding on this issue matches the holding of the United States Court of Appeals for the District of Columbia Circuit in NLRB v. Noel Canning, which will be heard by the Supreme Court next term.
What does all of this have to do with law and religion? Well, not too much. But there is a very interesting set of observations in Judge Duncan’s brief concurring opinion which does make a connection (beginning at page 126). Here’s Judge Duncan:
Historical practice in the decades following ratification of the Constitution is similarly sparse, and too easily subject to manipulation by “savvy lawyers,” as the dissent rightly notes. Diss. Op. at 147. Nor is it obvious how the uptick in intrasession recess appointments since 1981 ought to affect our analysis. Compare Marsh v. Chambers, 463 U.S. 783, 792 (1983) (upholding the practice of beginning legislative sessions with a prayer because its long history of use had made it “part of the fabric of our society”),with INS v. Chadha, 462 U.S. 919, 944 (1983) (observing that the increased frequency of the Congressional veto in statutes “sharpened rather than blunted” the judicial inquiry).
The questions Judge Duncan is asking are extremely difficult in constitutional law, and they are lots of fun to pose to students: what is the strength of custom or practice in constitutional interpretation? Should a long-standing practice which the government has engaged in for many years render the practice more likely or less likely to be constitutional? Or should the customary nature of a practice have no effect on constitutionality at all?
What makes Judge Duncan’s choice of examples particularly neat is that the issue of the constitutionality of legislative prayer (as readers of the Forum will know) is also on the Court’s docket next term in Town of Greece v. Galloway. And yet another interesting feature of the juxtaposition of Marsh v. Chambers and INS v. Chadha–which seemingly take different views of the influence of custom on constitutional interpretation–is that Chief Justice Warren Burger wrote the majority opinion for the Court in both cases.
This month, Ashgate publishes Religion, Identity and Conflict in Britain: From the Restoration to the Twentieth Century, edited by Stewart J. Brown (U. of Edinburgh, UK), Frances Knight (U. of Nottingham, UK), and John Morgan-Guy (U. of Wales, UK). The publisher’s description follows.
The British state between the mid-seventeenth century to the early twentieth century was essentially a Christian state. Christianity permeated society, defining the rites of passage – baptism, first communion, marriage and burial – that shaped individual lives, providing a sense of continuity between past, present and future generations, and informing social institutions and voluntary associations. Yet this religious conception of state and society was also the source of conflict. The Restoration of the monarchy in 1660 brought limited toleration for Protestant Dissenters, who felt unable to worship in the established Church, and there were challenges to faith raised by biblical and historical scholarship, science, moral questioning and social dislocations and unrest.
This book brings together a distinguished team of authors who explore the interactions of religion, politics and culture that shaped and defined modern Britain. They consider expressions of civic consciousness in the expanding towns and cities, the growth of Welsh national identity, movements for popular education and temperance reform, and the influence of organised sport, popular journalism, and historical writing in defining national life. Most importantly, the contributors highlight the vital role of religious faith and religious institutions in the understanding of the modern British state.
Next month, Lexington Books will publish Sharia or Shura: Contending Approaches to Muslim Politics in Nigeria and Senegal by Sakah Saidu Mahmud (Kwara State University, Nigeria). The publisher’s description follows.
This book explores the differences in Muslim attitudes and approaches to the public square in sub-Saharan Africa via a comparative-historical analysis of Muslim politics in Northern Nigeria and Senegal since independence in 1960. While Northern Nigeria has been mired in intermittent religious conflicts and violence, Senegal has maintained peaceful and tolerant relationships in inter-faith and public affairs. Yet, the two Muslim societies had similar Islamic backgrounds in Sufi orders —Qadiriya and Tijaniya in Northern Nigeria; and Tijaniya, Muridiya, Qadiriya and Lahiniya in Senegal — known for their peaceful approach to public affairs. Furthermore, the two Muslim societies belong to the “black African Islamic cultural zone.” These common traits would suggest similar approaches to public affairs, but this has not been the case.
The salient factors which are analyzed in the book include the historical factors (the success or failure to establish an Islamic state and the impact of different colonial administrations and ideologies), the extent of homogeneity of the social structure in each country, and strength of the contemporary state in both countries. The combination of these factors illustrates the experiences of the Muslims which further determine their divergent approaches to the public square.
This September, InterVarsity Press will publish The Global Public Square, by Os Guinness. 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.