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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, Alvare has remained at #1, Perry has remained at #2, Newman has remained at #3, Smith & Corbin’s exchange joins the list at #4, and Berg’s “Progressive Arguments” article moves down to #5 replacing Perry’s “Freedom of Conscience” article.

1. No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom by Helen M. Alvare (George Mason U., School of Law) [206 downloads]

2. The Morality of Human Rights by Michael J. Perry (Emory U., School of Law) [203 downloads]

3. On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada by Dwight G. Newman (U. of Saskatchewan, College of Law) [147 downloads]

4. Debate: The Contraception Mandate and Religious Freedom by Steven Douglas Smith (U. of Miami School of Law) and Caroline Mala Corbin (U. of San Diego School of Law) [82 downloads]

5. Progressive Arguments for Religious Organizational Freedom: Reflections on the HHS Mandate by Thomas C. Berg (U. of St. Thomas, St. Paul, School of Law) [82 downloads]

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Edelman, et al., eds., “Performing Religion in Public”

This September, Palgrave Macmillan will publish Performing Religion in Public edited by Joshua Edelman (University of London), Claire Chambers (Sogang University), and Simon du Toit (University of Windsor).  The publisher’s description follows.

From a South African Passion Play to Turkish Sufi tourism, from contemporary street preaching in America to public Hindu rites in India, from cloistered prayer in 17th century France to the queer politics of ‘the closet’ today, Performing Religion in Public brings together an international array of voices that grapple with the important role of religious performance in our secular public lives. Because traditional notions of the public sphere have emphasized rational discourse in a secular setting, religion has often been excluded. But religious life is not impersonal argument; rather, it is passionately performed, crossing boundaries between public and private, the personal and the political, and claiming a significant role in modern democracies, from everyday cultural interactions to political advocacy. By focusing on the performative nature of both religion and publics, this timely volume offers a fresh and fruitful re-conception of the relationship between religion and the public sphere.

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Rinaldo, “Mobilizing Piety: Islam and Feminism in Indonesia”

mmThis September, Oxford University Press will publish Mobilizing Piety: Islam and Feminism in Indonesia by Rachel Rinaldo (University of Virginia).  The publisher’s description follows.

Islam and feminism are often thought of as incompatible.  Through a vivid ethnography of Muslim and secular women activists in Jakarta, Indonesia, Rachel Rinaldo shows that this is not always the case.  Examining a feminist NGO, Muslim women’s organizations, and a Muslim political party, Rinaldo reveals that democratization and the Islamic revival in Indonesia are shaping new forms of personal and political agency for women.  These unexpected kinds of agency draw on different approaches to interpreting religious texts and facilitate different repertoires of collective action – one oriented toward rights and equality, the other toward more public moral regulation.  As Islam becomes a primary source of meaning and identity in Indonesia, some women activists draw on Islam to argue for women’s empowerment and equality, while others use Islam to advocate for a more Islamic nation.  Mobilizing Piety demonstrates that religious and feminist agency can coexist and even overlap, often in creative ways.

Posted on by Marc O. DeGirolami

Baude on the Third Circuit’s Contraceptive Mandate Opinion

Will Baude has a strong post discussing the takeaway from the opinion of the United States Court of Appeals for the Third Circuit yesterday upholding the denial of a preliminary injunction in a contraceptives mandate case. In Conestoga Wood Specialties Corporation v. Department of HHS, a for-profit corporation sued the federal government to stop enforcement of the contraceptives mandate against it. The court, in a divided opinion, held that for-profit corporations cannot “exercise” religion and that they therefore can have no constitutional free exercise or RFRA claims.

Will asks some very good questions about the court’s analysis. I think he is right that the court proves far too much. All of the arguments it makes against the free exercise rights of corporations would apply equally to non-profit corporations like churches. Though the majority recognizes this problem, it does not discuss sufficiently (or really, at all) what for it are the key distinctions–the distinction between “for profit” and “nonprofit,” and the distinction between “religious” and “secular.” There may well be strong arguments to exclude corporations that fall on one side of these distinctions from the category of those entities that can “exercise” religion. But they do not appear in the majority’s opinion.

There is another odd portion of the majority’s opinion that Will does not discuss. Will’s post is largely focused on the Free Exercise Clause and the constitutional question. But there is a RFRA claim as well. As to that claim, the majority’s argument was surprisingly short:

Next, we consider Conestoga‘s RFRA claim. Under the RFRA, ―[g]overnment shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability [unless the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.‖ 42 U.S.C. §§ 2000bb-1(a)-(b). As with the inquiry under the Free Exercise Clause, our preliminary inquiry is whether a for-profit, secular corporation can assert a claim under the RFRA. Under the plain language of the statute, the RFRA only applies to a ―person‘s exercise of religion.‖ Id. at § 2000bb-1(a).

Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a “person” under the RFRA.

With respect, this is very strange. Normally, one does not simply assume that a term as used in the Constitution must mean exactly the same thing as a term used in a statute. That’s not a rule of statutory interpretation I ever heard of. Normally, one interprets the statutory language independently, using the accepted tools of statutory interpretation. It is true that one should avoid construing a statute in such a way that it violates the Constitution, but that canon does not apply here. It is perfectly possible that there may be different, and distinct, linguistic usages in a statute and in other legal texts. As an example, the majority’s own preferred approach to divining the meaning of “exercise” under the Free Exercise Clause is to engage in what it calls a “historical” analysis. But presumably to divine the meaning of the statutory language, one would begin with the “plain meaning” of the words in the statute as used today. The court uses the words “plain meaning” in the first paragraph, but it does not discuss the plain meaning of the words as used in the RFRA. Perhaps the usage is the same in the RFRA as in the Free Exercise; perhaps not. But simply to assume this about the meaning of the statute because one has decided on the constitutional question has got to be in error.

ADDENDUM: A recent prominent example of different constitutional and statutory meanings concerns the term “tax” as used in the Anti-Injunction Act and in Article I Section 8 of the Constitution. The Supreme Court has held that “tax” in the AIA is to be understood in its broadest possible sense, but a different, and narrower, meaning has been said to apply to the term as used in the Constitution (see, e.g., the Child Labor Tax Case). The same thing might be true of the term “exercise.” See 42 USC s. 2000bb-2(4) (exercise of religion “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief”) (emphasis added).

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Around the Web This Week

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

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Benton & Ross (eds.), “Legal Pluralism and Empires”

9780814708361_FullThis July, New York University Press published Legal Pluralism and Empires: 1500-1850 edited by Lauren Benton (NYU) and Richard J. Ross (University of Illinois Urbana/Champaign). The publisher’s description follows.

This wide-ranging volume advances our understanding of law and empire in the early modern world. Distinguished contributors expose new dimensions of legal pluralism in the British, French, Spanish, Portuguese, and Ottoman empires. In-depth analyses probe such topics as the shifting legal privileges of corporations, the intertwining of religious and legal thought, and the effects of clashing legal authorities on sovereignty and subjecthood. Case studies show how a variety of individuals engage with the law and shape the contours of imperial rule.

The volume reaches from Peru to New Zealand to Europe to capture the varieties and continuities of legal pluralism and to probe the analytic power of the concept of legal pluralism in the comparative study of empires. For legal scholars, social scientists, and historians, Legal Pluralism and Empires, 1500-1850 maps new approaches to the study of empires and the global history of law.

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Ball, “At Liberty to Die”

9781479869572_FullThis July, New York University Press published At Liberty to Die: The Battle for Death with Dignity in America by Howard Ball (University of Vermont). The publisher’s description follows.

Over the past hundred years, average life expectancy in America has nearly doubled, due largely to scientific and medical advances, but also as a consequence of safer working conditions, a heightened awareness of the importance of diet and health, and other factors. Yet while longevity is celebrated as an achievement in modern civilization, the longer people live, the more likely they are to succumb to chronic, terminal illnesses. In 1900, the average life expectancy was 47 years, with a majority of American deaths attributed to influenza, tuberculosis, pneumonia, or other diseases. In 2000, the average life expectancy was nearly 80 years, and for too many people, these long lifespans included cancer, heart failure, Lou Gehrig’s disease, AIDS, or other fatal illnesses, and with them, came debilitating pain and the loss of a once-full and often independent lifestyle. In this compelling and provocative book, noted legal scholar Howard Ball poses the pressing question: is it appropriate, legally and ethically, for a competent individual to have the liberty to decide how and when to die when faced with a terminal illness?

 At Liberty to Die charts how, the right of a competent, terminally ill person to die on his or her own terms with the help of a doctor has come deeply embroiled in debates about the relationship between religion, civil liberties, politics, and law in American life. Exploring both the legal rulings and the media frenzies that accompanied the Terry Schiavo case and others like it, Howard Ball contends that despite raging battles in all the states where right to die legislation has been proposed, the opposition to the right to die is intractable in its stance. Combining constitutional analysis, legal history, and current events, Ball surveys the constitutional arguments that have driven the right to die debate.

Posted on by Mark Movsesian

An Ancient Mystery

Rome 2013 006
Mosaic in S. Costanza, Rome

Here’s a puzzle. The mosaic in this photo is in Rome’s Santa Costanza, a lovely fourth-century church with some of the oldest surviving Christian art. The mosaic is famous among scholars of Christian iconography, even among scholars of Christian jurisprudence. It depicts Christ–blond, beardless, looking like the god Apollo–giving a scroll to St. Peter. Christ is dressed in a golden toga. Scholars believe the image is meant to represent Christ giving the Law to the Church.

According to French scholar Rémi Brague, during the patristic period, “Christianity came to think of itself as a law brought by Christ in the same way that Judaism is a law brought by Moses.” This understanding, he says,

received artistic representation in images such as that of a lawgiver Christ giving St. Peter the scroll of the Law in a mosaic in the church of Santa Costanza in Rome, on the sarcophagus of Probus in Rome, or in the basilica of St. Ambrose in Milan.This scene is adapted from the pagan model of the investiture of a high functionary by the emperor. After Constantine, the ideology of the Christian empire utilized the notion of a unique law. This iconographic theme is present from the fourth century to the sixth, when it was replaced by another image in which Christ gives Peter not the Law but rather the Keys to the Kingdom.

If this reading is correct, the mosaic is an important object, not only in the history of Western art, but Western law as well. A key piece of evidence that supports the reading is the inscription on the scroll Christ holds. According to most scholars, the inscription is “DOMINUS LEGEM DAT,” or, “The Lord Gives Law.” If that’s what the scroll says, it does indeed confirm the reading of scholars like Brague.

Except that isn’t what the scroll says. As the photo, which I took this summer, shows, the scroll reads, “DOMINUS PACEM DAT,” or “The Lord Gives Peace.” Not “Law,” “Peace.” Now, I suppose, the inscription may be elliptical: Christ gives Law, the Law of Christ gives Peace, so Christ gives Peace. But that’s a strain. Besides, in Christian teaching, the Law of Christ is usually described as Love, not Peace. Does the scroll refer to Christ’s words at the Last Supper, “My peace I give to you”? Maybe. But that would definitely change the meaning of the image.

So, what’s the explanation? Perhaps, as Brague suggests, this was a conventional image in late antiquity, so the mosaic must be about law. One scholar I’ve read thinks the word “PACEM” on the scroll is an simply an incorrect reconstruction of the original “LEGEM.” Sounds plausible. But when did the reconstruction take place? The Middle Ages? Why are scholars so confident that the image is about law, when the words on the scroll are about peace? Anybody know?

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Possamai, et. al. (eds.), “Legal Pluralism and Shari’a Law”

This month, Routledge publishes Legal Pluralism and Shari’a Law, edited by Adam 9780415826334Possamai (U. of Western Sydney, Australia), James T. Richardson (U. of Nevada, Reno), and Bryan S. Turner (Graduate Center of CUNY & U. of Western Sydney, Australia). The publisher’s description follows.

Legal pluralism has often been associated with post-colonial legal developments especially where common law survived alongside tribal and customary laws. Focusing on Shari‘a, this book examines the legal policies and experiences of various societies with different traditions of citizenship, secularism and common law. Where large diasporic communities of migrants develop, there will be some demand for the institutionalization of Shari‘a at least in the resolution of domestic disputes. This book tests the limits of multiculturalism by exploring the issue that any recognition of cultural differences might imply similar recognition of legal differences. It also explores the debate about post-secular societies specifically to the presentation and justification of beliefs and institutions by both religious and secular citizens.

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Dupont, “Mississippi Praying: Southern White Evangelicals and the Civil Rights Movement, 1945-1975”

Next month, NYU Press will publish Mississippi Praying: Southern White 9780814708415_FullEvangelicals and the Civil Rights Movement, 1945-1975, by Carolyn Renée Dupont (Eastern Kentucky University). The publisher’s description follows.

Mississippi Praying examines the faith communities at ground-zero of the racial revolution that rocked America. This religious history of white Mississippians in the civil rights era shows how Mississippians’ intense religious commitments played critical, rather than incidental, roles in their response to the movement for black equality.

 During the civil rights movement and since, it has perplexed many Americans that unabashedly Christian Mississippi could also unapologetically oppress its black population. Yet, as Carolyn Renée Dupont richly details, white southerners’ evangelical religion gave them no conceptual tools for understanding segregation as a moral evil, and many believed that God had ordained the racial hierarchy.

 Challenging previous scholarship that depicts southern religious support for segregation as weak, Dupont shows how people of faith in Mississippi rejected the religious argument for black equality and actively supported the effort to thwart the civil rights movement. At the same time, faith motivated a small number of white Mississippians to challenge the methods and tactics of do-or-die segregationists. Racial turmoil profoundly destabilized Mississippi’s religious communities and turned them into battlegrounds over the issue of black equality. Though Mississippi’s evangelicals lost the battle to preserve segregation, they won important struggles to preserve the theology that had sustained the racial hierarchy. Ultimately, this history sheds light on the eventual rise of the religious right by elaborating the connections between the pre- and post-civil rights South.