Posted on by Marc O. DeGirolami

Reflections from the City of God: On Excellence in the Two Cities

Excudent alii spirantia mollius aera,                                                                              (credo equidem), vivos ducent de marmore voltus;                                            orabunt causas melius, caelique meatus                                                              describent radio et surgentia sidera dicent:

tu regere imperio populous, Romane, memento                                                           (hae tibi erunt artes) pacique imponere morem,                                                       parcere subiectis et debellare superbos.

When I was a kid, these lines were an ending of sorts. We read them in 11th Publius Vergilius Marograde Latin, at year’s end, and they represented the culmination of the first half of the Aeneid. True, several of us continued on to read Books 7-12 in our senior year, but the second half is something of a long walk down the hill (and I always had a soft spot for Turnus and couldn’t get too excited about his defeat). It’s this section of Book VI (lines 847-853)–in which the ghost of father Anchises discloses to Aeneas what the special arts and excellences of the Roman are to be–that was the peak moment. It was satisfying to us not only as an explanation for all of the trouble that the hero of the story seemed to be taking and enduring but also as an inspiring affirmation of political virtue and the excellence of civic governance writ large: to impose the habit of peace, to spare (or, one might say, to tolerate) the subjugated, and to tame the proud!

It is really quite unnecessary to study “politics” as a discrete subject in high school, or even in college, since the study of abstract political ideologies is often simply a truncated version of the study of the political tradition and heritage of a particular society. And if you want to learn about the “political theory” of an empire that continued to think itself deeply committed to its republican past, you can find it all in Vergil. Other people, he says, might make pretty arts and crafts, but this is what you want from your politics.

These lines came back to me as I read some of the Preface of Book I of the AugustineCity of God, in which Augustine notes the obstacles that he faces in laying out the aim of the work.

For I am aware what ability is requisite to persuade the proud how great is the virtue of humility, which raises us, not by a quite human arrogance, but by a divine grace, above all earthly dignities that totter on this shifting scene. For the King and Founder of this city of which we speak, has in Scripture uttered to His people a dictum of the divine law in these words: “God resisteth the proud but giveth grace unto the humble.” But this, which is God’s prerogative, the inflated ambition of a proud spirit also affects, and dearly loves that this be numbered among its attributes, to “Show pity to the humbled soul,/ And crush the sons of pride.” And therefore, as the plan of this work we have undertaken requires, and as the occasion offers, we must speak also of the earthly city, which, though it be mistress of the nations, is itself ruled by its lust of rule.

Book I is, in fact, loaded with Vergil; Vergil’s poetry itself illustrates the excellence of the City of Man. Later in Book I, it is almost as if Augustine is speaking to the hundreds upon hundreds of generations of young Latin students to come: “There is Vergil, who is read by boys, in order that this great poet, this most famous and approved of all poets, may impregnate their virgin minds, and may not readily be forgotten by them,” after which he proceeds to engage in some close textual reading and interlocution of Vergil. All of this, of course, is meant to counter the claims of those who argued that the Romans got what was coming to them by abandoning the Roman gods and embracing Christ. And as for “parcere subiectis,” Augustine argues that, in fact, the Romans did no such thing. To the contrary: “[A]mong so many and great cities which they have stormed, taken, and overthrown for the extension of their dominion, let us be told what temples they were accustomed to exempt, so that whoever took refuge in them was free.” I.6. In this book, then, Augustine punctures the Vergilian rhetoric of the Augustan age extremely effectively–“[a]ll the spoiling, then, which Rome was exposed to in the recent calamity–all the slaughter, plundering, burning, and misery–was the result of the [Roman] custom of war.” I.7. What was novel, and what showed itself in the comparatively gentle behavior of the barbarians, was truly to spare the subjugated who (whether godly or not, whether deserving–by man’s lights–or not) sought sanctuary in the Christian “temples.”

As the eminent Augustine scholar R.A. Markus puts in his magisterial volume, Saeculum: History and Society in the Theology of St. Augustine:

In Augustine’s mature view the radical vice of Greek philosophy as of Roman political ideology was the belief in the possibility…of perfection through the polis or the civitas. ‘God resists the proud, but to the humble He giveth grace’: the scriptural sentence quoted at the opening of the City of God was to Augustine’s mind the most fundamental comment on classical pretensions to human self-determination, as expressed in Vergil’s line, quoted in dramatic juxtaposition, on the historic mission of Rome….Here is Augustine’s final answer to the illusion of a teleiosis through rational and human means; and it is the more poignant for being a repudiation of a heritage which, as we have seen, had some power over his mind in his youth. (84)

And not only over Augustine’s mind!! The political program, and the power, of Rome is beguiling and attractive indeed. It holds enduring appeal to young people–as it did for me and my friends in high school. There are, I suppose, several reasons that one reads Vergil rather than Augustine in high school. But one of them, perhaps the most important, is that the excellence of the City of Man is so easy and approachable (as texts millennia old go), while the excellence of the City of God is so distant and so difficult. The excellence of humility is so much harder to appreciate and embrace than the excellence of dominion–especially, it seems to me, for the young. The excellence of the City of God holds little of the immediate and prepossessing appeal of the splendors of Rome.

But perhaps a little Augustine in the relatively early educational years, as a counterpoint to Vergil, might cast politics in a mellower light for the rising generations.

Posted on by Marc O. DeGirolami

Sixth Circuit Holds that “Secular, Profit-Seeking” Corporations are Not “Persons” under RFRA

In a terse and unsatisfying opinion, the United States Court of Appeals for the Sixth Circuit has held that “secular, profit-seeking” corporations have no standing to sue under the Religious Freedom Restoration Act. The plaintiffs, Roman Catholic owners of a closely held corporation that manufactures automotive and medical products, alleged that the HHS Contraception Mandate violated their religious free exercise under RFRA. After holding that the individual plaintiffs did not have standing, the court said this about the corporation’s standing:

Looking to RFRA’s relevant context, we find strong indications that Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as “persons” under RFRA. Again, Congress’s express purpose in enacting RFRA was to restore Free Exercise Clause claims of the sort articulated in Sherbert and Yoder, claims which were fundamentally personal . . . .

While the Supreme Court has recognized the rights of sole proprietors under the Free Exercise Clause during this period, it has never recognized similar rights on behalf of corporations pursuing secular ends for profit . . . .

Moreover, the Supreme Court has observed that the purpose of the Free Exercise Clause “is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority.” Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223 (1963) (emphasis added); see also Conestoga, 2013 WL 3845365, at *5 (“[W]e simply cannot understand how a for-profit, secular corporation–apart from its owners–can exercise religion.”).

Where to begin? The court recognizes that its emphasis on religious freedom that is “personal” or “individual” has, in fact, been totally irrelevant in many, many cases involving the Free Exercise Clause and RFRA in which the plaintiff corporations have prevailed. So why emphasize it? The distinction can do nothing by itself to justify the outcome, and the court seems to say as much.

“Personal” vs. “Group or Corporate” is doing no work here. Instead, there are two phrases that ground the decision: “secular” and “profit-seeking.” And, as I have said before, if courts are to deny religious freedom claims by corporations on these grounds–on the ground of a distinction between the secular and the religious, on the one hand, or of a distinction between profit-seeking and non-profit-seeking, on the other–then they will need to develop a theory of what “secular” means, and what “religious” means, and why the distinction matters in law. Or, they will need to make arguments about what precisely the difference is between “for profit” and “nonprofit” in this context and why it matters.

I should say straightaway that there may well be a discussion to be had, and arguments to be made, about the legal significance of the distinction between the “secular” and the “religious.” I recommend especially much of Steven D. Smith’s recent work on this issue, including this article. But there is not a single word in this decision about that distinction. Likewise, there is nothing about the conceptual distinction between for-profit and nonprofit in this specific context and its import (there is, at the end of the decision, a dubious interpretation of RFRA’s legislative history, but there is nothing of the sort of conceptual work that would be necessary to sustain a holding of this kind).

The Sixth Circuit joins the Third Circuit in reaching this result. Both courts are at odds with the Tenth Circuit. The case is Autocam Corp. v. Sebelius.

Posted on by Mark Movsesian

Library of Congress Releases “Constitution Annotated”

To celebrate Constitution Day yesterday, the Library of Congress released a new resource, Constitution Annotated, or, more formally, The Constitution of the United States of America: Analysis and Interpretation. Constitution Annotated contains legal analysis and interpretation of the US Constitution, including the Religion Clauses, based primarily on Supreme Court case law. It is updated through the end of the last Court term. Looks very helpful.

Posted on by Mark Movsesian

Glazer Institute Announces Fall 2013 Events

The Diane and Guilford Glazer Institute for Jewish Studies at Pepperdine has announced its events for Fall 2013, including talks on civil and Jewish law. A very impressive list indeed. Check it out here.

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Deeb & Harb, “Leisurely Islam: Negotiating Geography and Morality in Shi’ite South Beirut”

Next month, Princeton University Press will publish Leisurely Islam: Negotiating Geography and Morality in Shi’ite South Beirut by Lara Deeb (Scripps College) and Mona Harb (American University of Beirut). The publisher’s description follows.bookjacket

South Beirut has recently become a vibrant leisure destination with a plethora of cafés and restaurants that cater to the young, fashionable, and pious. What effects have these establishments had on the moral norms, spatial practices, and urban experiences of this Lebanese community? From the diverse voices of young Shi’i Muslims searching for places to hang out, to the Hezbollah officials who want this media-savvy generation to be more politically involved, to the religious leaders worried that Lebanese youth are losing their moral compasses, Leisurely Islam provides a sophisticated and original look at leisure in the Lebanese capital.

What makes a café morally appropriate? How do people negotiate morality in relation to different places? And under what circumstances might a pious Muslim go to a café that serves alcohol? Lara Deeb and Mona Harb highlight tensions and complexities exacerbated by the presence of multiple religious authorities, a fraught sectarian political context, class mobility, and a generation that takes religion for granted but wants to have fun. The authors elucidate the political, economic, religious, and social changes that have taken place since 2000, and examine leisure’s influence on Lebanese sociopolitical and urban situations.

Asserting that morality and geography cannot be fully understood in isolation from one another, Leisurely Islamoffers a colorful new understanding of the most powerful community in Lebanon today.

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van der Veer, “The Modern Spirit of Asia: The Spiritual and the Secular in China and India”

Next month, Princeton University Press will publish The Modern Spirit of Asia: The Spiritual and the Secular in China and India by Peter van der Veer (Utrecht University). The publisher’s description follows.

bookjacket

The Modern Spirit of Asia challenges the notion that modernity in China and India are derivative imitations of the West, arguing that these societies have transformed their ancient traditions in unique and distinctive ways. Peter van der Veer begins with nineteenth-century imperial history, exploring how Western concepts of spirituality, secularity, religion, and magic were used to translate the traditions of India and China. He traces how modern Western notions of religion and magic were incorporated into the respective nation-building projects of Chinese and Indian nationalist intellectuals, yet how modernity in China and India is by no means uniform. While religion is a centerpiece of Indian nationalism, it is viewed in China as an obstacle to progress that must be marginalized and controlled.

The Modern Spirit of Asia moves deftly from Kandinsky’s understanding of spirituality in art to Indian yoga and Chinese qi gong, from modern theories of secularism to histories of Christian conversion, from Orientalist constructions of religion to Chinese campaigns against magic and superstition, and from Muslim Kashmir to Muslim Xinjiang. Van der Veer, an outspoken proponent of the importance of comparative studies of religion and society, eloquently makes his case in this groundbreaking examination of the spiritual and the secular in China and India.