Posted on by Perry Dane

Religious Division and Identity – Richard III and the Rest of Us – Part III

In Part I of this case study of sorts, I wrote a bit about the theological complexity of debates over religious identity, as illustrated by the (very) minor fracas over whether it be somehow wrong to reinter the bones of Richard III in an Anglican rather than a Catholic ceremony.  In Part II, I asked how historians might look at the question of whether Richard was a “Catholic” in our sense of the word, or even whether they would reject the question as too vague or even meaningless.

I’ve suggested that theologians and historians will look at these sorts of problems through different lenses.  But do they also have something to say to each other?  This is a much larger question than I can try to tackle in a blog.  But I’ve been thinking a good deal about the problem of religion and history in my study of the jurisprudence of Jewish law (which I hope to discuss later this month), so let me at least throw out one tiny observation here, focusing again on Richard III.

First a distinction — between history and historical consciousness.  Historical consciousness is the distinctly modern conviction that history is not just a chronicle of events.  The past is actually a very different place than the present, and those differences are deeply bound up in specific context and assumptions and world views.  History is important to intelligent thinking about current religious belief and practice, but historical consciousness necessarily frustrates any effort to easy easy, straightforward, conclusions from that history.

So back to Richard III.  Assume for a moment that the authorities did decide to hand the King over for a Catholic funeral service.  Some Catholics of a “traditionalist” bent — the supporters of the traditional Latin Mass (one version of which Pope Benedict XVI dubbed the Extraordinary Form of the Roman Rite) — have argued that it’s not good enough for Richard III to be given a Catholic service.  As a pre-Vatican II Catholic (by many centuries), he should merit a traditional Latin requiem mass.  And, as an anointed King, he really deserves the special traditional service for the burial of a King.  That is, after all, what he would expect and want if he had a say in the matter.

The problem here is obvious, though.   Read more

Posted on by Marc O. DeGirolami

Supreme Court Declines to Hear Hutterite Case

The Supreme Court today denied certiorari in Big Sky Colony, Inc. v. Montana Department of Labor and Industry–a case appealed from a decision of the Montana Supreme Court involving amendments to the Montana state workers’ compensation laws that brought the Hutterite Colonies (a religious group with roots in the 16th century Anabaptist movement) within the coverage of those laws when members performed agricultural, manufacturing, or construction services. The Hutterites brought constitutional claims arguing that they should be exempted from these laws (that is, they should not be designated as “employers”) because their members receive no wages. The Montana Supreme Court rejected those claims in a 4-3 decision.

I was pleased to sign on to an excellent amicus brief in the case spearheaded by Tom Berg arguing for what is, in my view, a correct interpretation of the “generally applicable” component of the Free Exercise Clause test after Employment Division v. Smith (an interpretation that I have also discussed in my book). I am sorry that the Court passed up the chance to clarify that portion of the test.

Posted on by Mark Movsesian

Mannaggia!

You know that interview Pope Francis gave to Eugenio Scalfari of the Italian newspaper, La Repubblica? The one in which the pope made some puzzling comments about conscience and proselytism? The one that so many people, including me, have been poring over for insights into the pope’s thoughts on religion, politics, and law? It turns out it’s not an interview at all, but an after-the-fact reconstruction. Apparently, Scalfari neither tape-recorded his interview nor took notes at the time. Some errors have already begun to emerge. The Vatican has “confirmed the basic ‘trustworthiness'” of the interview–whatever that means. But, John Allen writes:

None of this, of course, is to excuse La Repubblica‘s sloppiness in not making clear to readers that what was being presented as the literal words of the pope was actually a reconstruction, not a transcript.

Barring further clarification from the Vatican, it’s now impossible to cite any particular lines or formulae from that interview and attribute them directly to the pope, since we don’t know quite where Scalfari ends and Francis begins.

Oh, well, never mind, then.

Is that any way to run a newspaper?

Posted on by Marc O. DeGirolami

Movsesian on St. Vartan’s Armenian Cathedral

Do have a look at this excellent speech that Mark gave on the occasion of the 45thSt. Vartan's Cathedral anniversary of St. Vartan’s Armenian Cathedral on the east side in Manhattan (I was privileged to attend a service there with Mark a couple of years ago. It is quite lovely). A bit from Mark’s talk:

[T]he builders chose to dedicate the cathedral to Vartan. We all know the story of Kach Vartan—“Brave” Vartan. In the fifth century, Armenia was under the control of the Persian Empire. The Persians were Zoroastrians, and they deeply distrusted Christianity. Christianity provided a link to Byzantium, and thus posed a threat to Persian rule. So the Persians attempted to force Armenians to renounce Christianity in favor of the Persians’ own religion.

Some Armenian nobles did convert. But others, led by Vartan Mamigonian, organized a revolt. In 451, at the Battle of Avarayr, Vartan led a vastly outnumbered force against the Persian army. In a letter to the Persian commander before the battle, Vartan and his companions explained that they were willing to resist—and die, for they could hold no illusions about their chances of success—in order to remain Christian:

From this faith no one can shake us, neither angels nor men, neither sword, nor fire, nor water, nor any, nor all, horrid tortures… If you leave to us our belief, we will, here on earth, choose no other master in your place, and in Heaven choose no other God in place of Jesus Christ, for there is no other God. But should you require anything beyond this great testimony, here we are; our bodies are in your hands…  Do not, therefore, interrogate us further concerning all this, because our bond of faith is not with men to be deceived like children, but to God, with Whom we are indissolubly bound and from Whom nothing can detach and separate us, neither now, nor later, nor forever, nor forever and ever.

The Persian army crushed the Armenians at Avarayr. Vartan and eight of his generals were killed. The revolt continued, though, and the Persians eventually concluded that their campaign of forced conversion was too costly and gave it up. Our Church has viewed Avarayr as a great moral victory and has honored Vartan and his companions as Christian martyrs and saints to the present day.

It’s easy to understand, then, why the builders dedicated this cathedral to St. Vartan. First, it was a way of linking the Armenian story to the American. St. Vartan’s story fits very well with foundational American ideals. It would be wrong to understand Avarayr completely in today’s categories, of course; one should avoid that sort of anachronism. But the history of Vartan and his companions resonates with the concept of religious liberty that is so fundamental in American culture. Vartan and his companions were, in a sense, standing up for religious freedom—for the right to worship God. When they told the Persians that they would be loyal subjects, but that they would not give up Christ, they were anticipating, by many centuries, the arguments of waves of immigrants to America, many of whom came to this continent precisely so that they could worship God free from state compulsion. Naming the new cathedral for St. Vartan was thus a way to introduce the Armenian story in terms that American culture would find immediately recognizable.

Second, the choice of St. Vartan also links the cathedral with another, older theme, one that predates America by millennia and which, sadly, continues, in parts of the world, even today. The other epithet for Vartan, besides “brave,” is Garmeer: “Garmeer” Vartan– Red Vartan, as in “bloody.” The story of Avarayr, after all, is a story of blood and sacrifice; of martyrdom—and survival. It is thus emblematic of our history as a Christian people from the beginning.  Many times in our history, it has seemed as though Christianity in Armenia would die at the hands of persecutors: Persians, Arabs, Mongols, Turks, Bolsheviks. Always, with God’s help, the faith has survived; not without great cost, but it has survived.

This lesson would have been immediate for the people who founded this cathedral. The Armenian Genocide of 1915, which some of the cathedral’s builders experienced firsthand, and which all of them had heard about from friends and relatives who had survived, was only one of many trials that Armenian Christians have had to endure. Surely, the choice of Brave Vartan, a martyr for the faith whose legacy down the centuries is one of strength and triumph, was meant to associate this new, American cathedral with the message of survival and rebirth.

For Armenian Christians in America today, the future looks secure. We apparently are not called to suffer persecution and martyrdom. For our brothers and sisters in other countries, though, very grave threats remain. Many congregants at St. Vartan today escaped the pogroms that took place in Baku and Sumgait in the 1980s; they know what persecution means. In Syria, Armenian and other Christians are being forced to flee, lest they become victims of a radical Islamism that seeks their subjugation. Our cathedral’s name, St. Vartan, should serve as a reminder to us that in other parts of the world, Armenian Christians continue to pay a price for their faith. The name of our cathedral is an admonition: We must do what we can to help our brothers and sisters who are persecuted for their religion—our religion–and welcome them when, like our ancestors a few generations ago, they come to America to seek a more stable life. May this cathedral be a symbol of hope to them.

Posted on by Marc O. DeGirolami · 1 Comment

All Popes Are Political (Just Like the Rest of Us)

When I teach Professional Responsibility, one of the most interesting discussions we have concerns Rule 2.1: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

My experience is that students are, in general, highly resistant to the permissive injunction to lawyers to offer “moral, economic, social, and political” advice to their clients. They don’t see that as within the lawyer’s role. The lawyer should be “neutral” or “nonjudgmental.” Moral and political non-neutrality is for other people.  The lawyer’s role is to fulfill the client’s desires. Morality and politics has nothing to do with it.

I have always found this position unpersuasive. In no way is a “neutral” or “nonjudgmental” or “noninterventionist” or “simply uninterested” position non-moral or non-political.

In the first place, a neutral or putatively noninterventionist position slides imperceptibly into a consequentialist mode of moral and political reasoning. Decisions that implicate moral or political considerations (and many decisions for which a lawyer’s counsel is sought do this) are simply assessed from a particular cost-benefit vantage point–a consequentialist calculus from the perspective of one, the client. But the lawyer does not escape moral or political judgment by tacitly adopting this kind of consequentialism. She is neck-deep in morality and politics! The real problem is that she has adopted a moral and political world view without realizing it. Indeed, she has adopted a position against those moral and political systems which at times demand non-consequentialist choices.

Second, the neutral or allegedly uninterested position puts a thumb on the scale of the egotistical choice. The right thing to do is what the client wants, and what the client wants serves the client’s interests. Again, this is a perfectly plausible position to adopt as a lawyer. But it is a deeply moral and political position. The morality and the politics may be unattractive; indeed, they may be downright ugly. But there is no escaping the political and moral conviction that undergirds this view, no matter how hard one may want to escape it. There is no such thing as a morally or politically neutral lawyer.

All of this came to mind when I read my friend Mark’s two posts about whether Pope Francis is a “nonpolitical” pope. There is no such thing. It is unnecessary to rely on the overtly political comments in Pope Francis’s recent interviews to prove the point. To be sure, one could easily counter the “nonpolitical” argument by pointing to the Pope’s criticisms, in these selfsame statements, about political liberalism; or one could point to his emphasis on economics and the Church’s role in the alleviation of poverty; or one could point to his relativist conception of moral conscience. All of these views have profound and direct moral and political import.

But this is all, to some degree, beside the point. At least in this way, popes are closer to lawyers than to mystics. The pope is the head of the institutional Catholic Church (not only that, or even primarily that, but certainly that); he is not St. John of the Cross. Mystics live in isolation from society and politics. Popes do not. And it is inevitable that a pope’s views on those questions about which popes are called on to give their voice, their counsel, and their wisdom will implicate moral and political judgment.

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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, Douglas Laycock remains at #1, Zoe Robinson remains at #2, Ian C. Bartum rises to #3, replacing Perry Dane, Carl F. Minzer and Daniel O. Conkle join the list at numbers #4 and #5 respectively, while Richard Garnett no longer remains.

1. Religious Liberty and the Culture Wars by Douglas Laycock (U. of Virginia, School of Law) [291 downloads]

2. What is a ‘Religious Institution’? by Zoe Robinson (Depaul University College of Law) [257 downloads]

3.Book Review: ‘The Tragedy of Religious Freedom’  by Ian C. Bartum (University of Nevada, Las Vegas) [100 downloads]

4. Book Review of ‘A Confucian Constitutional Order: How China’s Ancient Past Can Shape its Political Future’ by Jiang Qing, edited by Daniel Bell and Ruiping Fan (Princeton University Press) by Carl F. Minzner (Fordham University- School of Law) [81 downloads]

5.Evolving Values, Animus, and Same-Sex Marriage by Daniel O. Conkle (Indiana University Maurer School of Law) [66 downloads]

Posted on by Marc O. DeGirolami

Haupt on Active Symbols

Our friend and former Center for Law and Religion Forum guest Claudia Haupt (Columbia) has posted her paper, “Active Symbols,” forthcoming in the Boston College Law Review. The abstract follows.

Visual representations of religious symbols continue to puzzle judges. Lacking empirical data on how images communicate, courts routinely dismiss visual religious symbols as “passive”. This Article challenges the notion that symbols are passive, introducing insights from cognitive neuroscience research to Establishment Clause theory and doctrine. It argues that visual symbolic messages can be at least as active as textual messages. Therefore, religious messages should be assessed in a medium-neutral manner in terms of their communicative impact, that is, irrespective of their textual or visual form.

Providing a new conceptual framework for assessing religious symbolic messages, this Article reconceptualizes coercion and endorsement—the dominant competing approaches to symbolic messages in Establishment Clause theory—as matters of degree on a spectrum of communicative impact. This focus on communicative impact reconciles the approaches to symbolic speech in the Free Speech and Establishment Clause contexts and allows Establishment Clause theory to more accurately account for underlying normative concerns.

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Rock, “Haven of Liberty: New York Jews in the New World, 1654-1865”

Last month, New York University Press published Haven of Liberty: New York Jews in the New World, 1654-1865 by Howard B. Rock (Florida International Haven of LibertyUniversity).  The publisher’s description follows.

 Haven of Liberty chronicles the arrival of the first Jews to New York in 1654 and highlights the role of republicanism in shaping their identity and institutions. Rock follows the Jews of New York through the Dutch and British colonial eras, the American Revolution and early republic, and the antebellum years, ending with a path-breaking account of their outlook and behavior during the Civil War. Overcoming significant barriers, these courageous men and women laid the foundations for one of the world’s foremost Jewish cities.

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Coren, “The Future of Catholicism”

Next month, Random House will publish The Future of Catholicism by Michael Coren.  The publisher’s description follows. Future of Catholicism

 From the author of the bestselling Why Catholics Are Right, a perfectly timed book on the new Vatican — where it is, where it needs to go, and why it is more relevant than ever.

When Cardinal Jorge Mario Bergoglio, Archbishop of Buenos Aires, became Pope Francis in March 2013, there were almost 6,000 journalists in Rome to cover the Papal election. Some of them reported on the conclave with expertise and empathy, but others — either out of ignorance or an agenda — insisted on asking the same questions again and again: Is the Church going to change? Will the new Pope be flexible? Is Catholicism going to adapt to the times and alter its teaching on same-sex marriage, abortion, contraception, female ordination, celibate clergy, and divorce? Interestingly, these questions center on moral and sexual issues rather than directly theological topics, but they are all based on the premise that the Church is wrong, outdated, in need of fundamental transformation.

Does the Church need to change, and if so, where? Where it cannot change, why is this so? In his signature frank style, Coren will explain and outline why the Church believes as it does on many of the most pressing moral issues, giving reasons for teaching and belief, and applying these to contemporary challenges. And for those areas where the Church must change and establish reform — the transparency of leadership and finance; the competence of the curia and Vatican civil service; the approach the Church takes towards media, the way it deals with the detritus of the abuse crisis; and its approach to the developing world band towards others religions, particularly Islam — Coren will offer insight into the faith’s next steps.

The Church is at a crossroads, but perhaps more significantly and accurately, the Western world is at a crossroads, and how the Church reacts to and deals with this phenomenon will decide and define so very much of the future — of our future.