Posted on by Marc O. DeGirolami

DeGirolami on Standing and Justiciability in the Same-Sex Marriage Cases

I have a short piece over at Commonweal on the issues of standing and justiciability in United States v. Windsor and Hollingsworth v. Perry. Here’s a little bit:

Yet the question of relevance persists: Even if lawyers and judges pay attention to standing, why should the public care about it, particularly when matters of equality, freedom, and civil rights are jostling for the limelight?

First, because less is more. The Supreme Court wields its power within the constitutional structure only as long as it also retains a firm sense of the limits of that power. When it exceeds those limits, it disrupts the constitutional order and threatens its own authority. As always, Tocqueville saw this clearly:

The political power which the Americans have intrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone. If the judge had been empowered to contest the laws on the ground of theoretical generalities, if he had been enabled to open an attack or to pass a censure on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist of a party, he would have arrayed the hostile passions of the nation in the conflict.

Or, as Justice Antonin Scalia put it in his dissent in the DOMA case, a free-floating power to say what the law is would be “an assertion of judicial supremacy over the people’s representatives in Congress and the executive”—an unsustainable exercise of judicial force that risks destroying the constitutional separation of powers.

Second, it is we who have the primary duty to make the law. We are given that duty by the federal and state constitutions, each of which provides representative mechanisms for us to discharge our duty. But the duty remains ours, not the Supreme Court’s. Constitutions are collections of entrenched choices made by the people to obligate not only their representatives and officials, but also themselves. Justice Kennedy’s dissent in the Proposition 8 case likewise notes that California’s popular initiative system represents a choice by the people of the state about where to vest law-making authority. A people that has no time for justiciability is more likely to cede its law-making powers and duties. Eventually, it will not even remember what power it has surrendered. It will then have the judges it deserves.

Posted on by Marc O. DeGirolami

Annicchino on Developments in Religious Freedom in Italian Foreign Policy

Our friend Pasquale Annicchino (European University Institute) has posted a concise and highly informative paper on recent developments in the promotion of freedom of religion or belief in Italian foreign policy. Here is Pasquale’s abstract:

The right to freedom of religion or belief has visibly made an entry into the international arena through specialized institutions aimed at its protection and promotion in multilateral fora, in international organizations, and in relationships with third countries (countries that are not part of the European Union) and civil society at large. This is also true in the case of Italy, which recently joined the growing number of countries with dedicated policies for the protection and promotion of freedom of religion or belief in their foreign policy. In this article I provide a brief update and analysis of the recent attempts undertaken by the Italian Ministry for Foreign Affairs in the field. An English translation of the protocol between the City of Rome and the Ministry for Foreign Affairs establishing the Italian Oversight Committee for Religious Freedom is provided in the Annex.

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Hart, et. al. (eds.) “Religion and Civil Society in Europe”

This past June, Springer published Religion and Civil Society in Europe, edited Religion and Civil Societyby Joep de Hart (Protestant Theological University), Paul Dekker (Tilburg University), and Loek Halman (Tilburg University). The publisher’s description follows:

Religion is back again in Europe after never having been gone. It is manifest in the revival of religious institutions and traditions in former communist countries, in political controversies about the relationship between the church(es) and the state and about the freedom of religion and the freedom to criticize religion, and in public unease about religious minorities. This book is about religion and civil society in Europe. It moves from general theoretical and normative approaches of this relationship, via the examination of national patterns of religion-state relations, to in-depth analyses of the impact of religion and secularization on the values, pro-social attitudes and civic engagement of individuals. It covers Europe from the Lutheran North to the Catholic South, and from the secularized West to the Orthodox East and Islamic South-East with comparative analyses and country studies, concluding with an overall Europe-USA comparison.

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Mahmood, “Religion, Law & Society – Across the Globe”

This past April, Universal Law Publishing Co.  published Religion, Law & Society – Across the Globe by Dr. Tahir Mahmood, a member of the Law Commission of India. The publisher’s description follows:

This book offers insights into a wide variety of intricate and inter-connected issues of Constitutional and socio-legal significance. Among the subjects covered are place of religion in political and legal systems of India and a large number of other countries, legal parameters of religious freedom, rights and problems of minorities, women’s legal status and rights, communal harmony and peaceful coexistence, Islamic religion and law, resolution of religious disputes by the courts, Pakistan situation, reflections of law and justice in Urdu Poetry, and so on.

All chapters in the book have been drawn from the addresses delivered by the author in various national and international conferences held in India and abroad and columns written by him in leading English dailies of the country.

Posted on by Marc O. DeGirolami

Thoughts on the Political Psychology of Compromise

Professor Thomas Berg (St. Thomas) posted a very thoughtful comment a few days ago on two pieces about same-sex marriage written respectively by Professors Michael Perry and Rick Garnett. I’ve reprinted my thoughts about Tom’s comment below, in case it is of interest to readers here.

Reading Tom’s thoughtful comment below is a pleasure. He takes each of Michael’s and Rick’s respective pieces, notes and elaborates on areas of agreement, and proceeds to explain with care where he may have a different view. I should also say that I very much respect and admire the work that he, Professor Laycock, Professor Wilson, Rick, and Michael (among others) have been doing on the issue of religious exemptions and same-sex marriage.

The tail end of Tom’s post caught my eye: “In fact, in the long run, I think, the best hope for arguing for religious liberty is not to refuse sympathy for gay couples’ efforts to live out their deep, pervasive commitments–but rather to accord them sympathy and claim similar sympathy for the deep, pervasive commitments of religious believers individually and in their institutions.  It is frequently argued that activists for SSM, “aggressive and uncompromising,” will never return that sympathy.  But the struggle here is, as in so many other cases, to convince those in the middle.  My own judgment is that as time goes on, the effort to refuse same-sex marriage will increasingly alienate those in the middle, forfeiting the chance to win them to a “live and let live” approach that will protect traditional religious organizations’ ability to maintain their identities.”

Here are a few friendly questions for Tom about this paragraph, offered up in an appreciative spirit. The overarching question is: Why is this your judgment? More specifically, what is the basis for the judgment that, as a predictive matter, a metaphorical cessation of hostilities on the substantive question of same-sex marriage will, as time goes on, result in a metaphorical cessation of hostilities on the substantive question of religious exemption? It seems to me that in order to reach that conclusion, one would have to believe certain other things, too–things which are not necessarily particular to this debate but may reflect more general beliefs about political psychology. It is those more general beliefs that I want to explore and think about in this post.

First, it seems to me that one would need to believe in a theory of what I’ll call sympathetic reciprocity in politics (the word “sympathy” appears several times in Tom’s comment), which might go something like this: in the realm of politics or policy-making, over the long-term, people remember and respect concessions, and they respond to those concessions with concessions of their own. They reward sympathy with sympathy. And eventually, with time and good faith, a people that holds radically different beliefs about the good life can achieve a modus vivendi–a ‘live and let live’ ethic–by observing a policy of sympathetic reciprocity.

Setting aside this particular controversy, though, I wonder whether that is an accurate description of the reasons that political concessions generally get made. We do not accept a ‘live and let live’ ethic for many issues of public concern; we do accept them for others; and the issues for which we do and do not accept such an ethic are relatively stable but always changing. But is the extent to which we accept such an ethic in turn dependent on a theory of sympathetic reciprocity–that is, on the extent to which those with whom we disagree have previously extended sympathy toward the policy that we champion and that they disavow? Does politics have a sympathetic memory in this way, and does it reward those who moderate their views with reciprocal concessions? Or is the acceptance of a ‘live and let live’ ethic more dependent on considerations of public salience, political prestige and influence, effective rhetoric, cost, the vagaries of public opinion, cultural trends–in sum, is it far more dependent on considerations of cultural and political power? I grant that this is a gloomier view than I think is at work in Tom’s comment. I’m not sure that I endorse it in an unqualified way. But I hope Tom might say a little bit more about why–on what grounds–he holds (or seems to hold) to the comparatively sunny view of sympathetic reciprocity in politics.

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Posted on by Mark Movsesian

Brague, “On the God of the Christians (And On One or Two Others)”

A few years ago, while working on an essay on Christian and Islamic jurisprudence, I read a translation of University of Paris philosopher Rémi Brague’s helpful book, The Law of God, a history of the concept of divine law in Judaism, Christianity, and Islam. Brague is good at showing the essentially different understandings of law in these three great religious traditions. Last month, St. Augustine’s Press published a translation of an interesting-looking new book by Brague, On the God of the Christians (And On One or Two Others), which looks to cover some of the same material. The publisher’s description follows:

On the God of the Christians tries to explain how Christians conceive of the God whom they worship. No proof for His existence is offered, but simply a description of the Christian image of God.

The first step consists in doing away with some commonly held opinions that put them together with the other “monotheists,” “religions of the book,” and “religions of Abraham.”

Christians do believe in one God, but they do not conceive of its being one in the same way as other “monotheists,” like the first of them, the pharaoh Akhenaton (18th century before J.C.), like some philosophers, e.g., Aristotle, or like Islam.

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Pappé, “The Forgotten Palestinians”

This July, Yale University Press published The Forgotten Palestinians: A History of the Palestinians in Israel, written by Ilan Pappé (Exeter University).  The 9780300184327publisher’s description follows.

For more than 60 years, hundreds of thousands of Palestinians have lived as Israeli citizens within the borders of the nation formed at the end of the 1948 conflict. Occupying a precarious middle ground between the Jewish citizens of Israel and the dispossessed Palestinians of the West Bank and the Gaza Strip, the Israeli Palestinians have developed an exceedingly complex relationship with the land they call home; however, in the innumerable discussions of the Israel-Palestine problem, their experiences are often overlooked and forgotten.

In this book, historian Ilan Pappé examines how Israeli Palestinians have fared under Jewish rule and what their lives tell us about both Israel’s attitude toward minorities and Palestinians’ attitudes toward the Jewish state. Drawing upon significant archival and interview material, Pappé analyzes the Israeli state’s policy towards its Palestinian citizens, finding discrimination in matters of housing, education, and civil rights. Rigorously researched yet highly readable, The Forgotten Palestinians brings a new and much-needed perspective to the Israel-Palestine debate.

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Arab Christians in British Mandate Palestine: Communalism and Nationalism, 1917–1948

This April, Columbia University Press distributed Arab Christians in British Mandate Palestine: Communalism and Nationalism, 1917-1948 , written by appNoah Haiduc-Dale (Centenary College) and originally published by Edinburgh University Press.  The publisher’s description follows.

This volume focuses on the relationship between Arab Christians and the nationalist movement in Palestine as the British Mandate unfolded throughout the first half of the twentieth century (1917–1948). Its portrayal of individual behaviors and beliefs, including those of Christian organizations (both religious and social), undermine dominant historical paradigms envisioning Arab Christians as prone to communalism. Instead, this study shows they were as likely as their Muslim counterparts to support nationalism. When social pressure forced Christians to identify along communal lines, they did so in conjunction with a stronger dedication to nationalism. Challenging the standard historiography of communalism, which suggests communal identification is always in opposition to nationalist claims, Noah Haiduc-Dale refuses to stereotype Arab Christian behavior and belief by appreciating a range of Christian activities under the Mandate.

Posted on by Mark Movsesian

À Nous la Liberté

Riots broke out in a Paris suburb this weekend after police ticketed a woman wearing the full Islamic veil, or burqa, on a local street. Since 2011, France has banned the burqa in public places on pain of a €150 fine. The details of this weekend’s incident are unclear, but police apparently asked the woman to remove her veil as part of an identity check. An altercation ensued, and the woman’s husband allegedly assaulted the officers. The officers then arrested the husband, and in response at least 250 people besieged the local police station, throwing fireworks and setting refuse bins and vehicles on fire. According to France 24, four police officers have been injured. The violence has continued for three nights.

The burqa ban has been controversial from the beginning. Supporters argue that it’s a necessary safety measure: terrorists could use the burqa as a disguise. But, observing the debate from this side of the Atlantic, safety issues don’t seem central. Most of the emotion in the debate relates to the burqa’s symbolic impact. The French Right supports the ban because the burqa suggests the presence of an alien culture that refuses to be French. The Left is divided. Some on the Left support the ban because the burqa suggests the subjugation of women; others argue that the burqa controversy is a sideshow to distract from France’s real social problems. And of course many French Muslims–though not all–see the ban as evidence of racism and  Islamophobia. Not to mention a violation of religious freedom.

Behind the controversy is a debate about the meaning of laïcité, that peculiarly French contribution to law and religion. Often translated loosely as “secularism,” laïcité is one of the foundations of French republicanism. But its meaning is, and always has been, contested. On one view, laïcité means only that the state should have no official ties to religion and that citizens should be free to follow whatever religion they wish. On this understanding, the ban is problematic. What legitimate reason does a liberal state have for banning religious dress in public? (A liberal state, note — not a state with a religious foundation or a “thick” conception of the public good). Public safety, surely: but the French government doesn’t ban knapsacks or raincoats, which pose greater risks. What about the fact that some women are forced to wear the burqa by family members? That’s a legitimate state concern, too. But there must be ways to address that concern that don’t involve forbidding public religious expression by women who do wish to wear the veil.

Perhaps laïcité means something different, though, something more aggressive. Perhaps laïcité requires a naked public square, in order to rid society of the influence of religions that stand in the way of progress. This view has a long lineage in France as well. Rousseau, recall, taught that society must force people to be free. On this view of laïcité, the burqa ban makes more sense. The burqa is forbidden even if women wear it voluntarily–indeed, especially if women wear it voluntarily. How else is equality to be achieved?

A few hundred women have been cited for wearing the burqa since the ban went into effect. Almost none of the citations, apparently, have led to incidents like this weekend’s. This weekend’s riots suggest, though, that the burqa ban remains deeply unpopular in some French neighborhoods, and that the controversy is far from over.

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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, Berg’s “Secular Purpose” article has been replaced by his “Progressive Arguments” article at #4, and Perry has a second piece joining the list at #5.

1. No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom by Helen M. Alvare (George Mason U., School of Law) [204 downloads]

2. The Morality of Human Rights by Michael J. Perry (Emory U., School of Law) [172 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) [141 downloads]

4. Progressive Arguments for Religious Organizational Freedom: Reflections on the HHS Mandate by Thomas C. Berg (U. of St. Thomas, St. Paul, School of Law) [81 downloads]

5. Freedom of Conscience as Religious and
Moral Freedom by Michael J. Perry (Emory U., School of Law) [69 downloads]