Posted on by Mark Movsesian · 1 Comment

Can a Church Refuse to Sell Property Because of a Buyer’s Religion?

Here’s a bleg for you law and religion fans. Rod Dreher had an interesting post last week about the continuing division in the Episcopal Church over doctrinal issues. Several parishes, and even a few dioceses, if I’m not mistaken, have sought to leave the Episcopal Church because of the church’s liberal stand on issues like homosexuality. These parishes typically affiliate with Anglican bishops who remain committed to traditional doctrine.

Often, the departing congregations wish to maintain control of church property. Because of the way the relevant deeds and other legal documents are written, though, and because of the church autonomy principle, the congregations typically lose. Rod reports that the Episcopal Church has spent about $26 million litigating all the cases–an astounding figure, when you think about it.

All this is straightforward, legally speaking. But Rod’s post raises an issue I hadn’t thought about. When a departing parish in Binghamton, New York, sought to purchase its church building for $150,000, the Episcopal Church refused to sell. Apparently, the Church’s presiding bishop, Katharine Jefferts Schori, has adopted a policy of refusing to sell church property to any group that intends to affiliate with an Anglican bishop. The Episcopal Church has sold off property to Baptists, Methodists, Jews, and Muslims, but not Anglicans. In the Binghamton case, the Church eventually sold the property to a mosque which paid only $50,000 for it–one-third what the departing congregation had offered to pay.

So, here’s the question. Is it legal for a church to refuse to sell church property solely because of the buyer’s religion? You’d think there would be an easy answer, but I haven’t been able to find one. The federal civil rights laws prohibit religious discrimination in residential sales, but that wouldn’t apply to church buildings. Some state civil rights laws apply to commercial property, but there are exemptions for religious groups–and anyway, these cases don’t involve commercial property, either. In the federal employment anti-discrimination laws, a specific exception exists for religious bodies that discriminate on the basis of religion, and a couple of years ago, in the Hosanna-Tabor case, the Supreme Court held that the Constitution allows religious bodies to discriminate with respect to the employment of ministers. Would there be an analogous carve-out from non-discrimination principles for churches that do not wish to sell their sanctuaries to religious rivals? Any ideas?

Posted on by Mark Movsesian

Religious Knowledge Quiz

Relatives staying too long? Christmas tree lights breaking out of the box? Johnny Mathis starting to get on your nerves? If you need a break from all the holiday cheer, take the US Religious Knowledge Quiz, sponsored by Pew. Afterwards, you can look up the results of the actual survey and see how you compare with the American public. (H/T: Perry Dane.)

Posted on by Mark Movsesian

UK Supreme Court: Religion Does Not Require God

Last week, the Supreme Court of the United Kingdom–since 2009, the highest court in the UK–handed down what looks to be a significant decision on the meaning of “religion” in English law. The decision suggests that, for legal purposes, religion does not require a belief in God.

The case involved a couple who wished to marry in a Scientologist church in London. Under English law, marriages performed in a “place of religious worship” are considered valid. Nonetheless, the couple faced a problem. In 1970, an English court concluded that Scientology is not a religion, because Scientology does not hold a belief in God. So, when the couple sought to have their church certified as a place where marriages might take place, the relevant government official refused: if Scientology is not a religion, a Scientologist church cannot be a “place of religious worship.” The couple then sued.

Last week, the Supreme Court sided with the couple. The 1970 opinion was wrong, the court held. Scientology is indeed a religion. For one thing, Lord Toulson’s opinion explained, Scientology does hold a belief in a supreme deity, albeit an impersonal and abstract deity. Anyway, belief in a deity is not necessary. Religion, Lord Toulson wrote, means:

a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system…. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the sense or from science.

On this definition–and Lord Toulson made clear he was not announcing a categorical test for all circumstances–Scientology qualifies as a religion. The court ordered the government to certify the couple’s church as a place where valid marriages could take place.

There’s a lot going on in Lord Toulson’s opinion, and I can’t do it justice in a short post. Three observations, though. First, it seems entirely correct to say that “religion” does not necessarily mean a belief in God. Some versions of Buddhism do not hold a belief in a deity, for example, and it would be very odd to have a definition of religion that excluded Buddhism. I don’t know enough about Scientology to know whether it should be considered a religion, but the fact that it is not conventionally theistic shouldn’t be dispositive.

Second, it seems correct that religion must have some supernatural component. Otherwise, religion collapses into philosophy. Of course, we might protect strong secular convictions in addition to religion. In fact, the European Convention on Human Rights protects both religious and secular convictions. But the relevant English law in this case speaks of “religious worship,” not “secular convictions,” and pretty much everybody knows the difference between the two. It doesn’t do any good to pretend a law is vaguer than it is.

Finally, note Lord Toulson’s insistence that religion involves a group of adherents. This is very significant. Religion is inherently communal, and some of the most important benefits the state derives from religion–for example, greater civic participation–depend on religion’s being a group activity. In America, some people have begun to argue for a very individualistic definition of religion, one in which a sole practitioner, following her own inner voice, can qualify as a religion for legal purposes. Earlier this year, a federal appeals court rejected this view, and there are good reasons to do so. I’ll have more to say about all this is a forthcoming paper, to be published next month by the European University Institute. I’ll post more on this subject then. 

The case is R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages (Dec. 11, 2013).

Posted on by JCPW

Vakulenko, “Islamic Veiling in Legal Discourse”

9780415565509This December, Routledge will publish Islamic Veiling in Legal Discourse by Anastasia Vakulenko (Birmingham Law School). The publisher’s description follows.

Islamic Veiling in Legal Discourse looks at relevant law and surrounding discourses in order to examine the assumptions and limits of the debates around the issue of Islamic veiling that has become so topical in recent years. For some, Islamic veiling indicates a lack of autonomy, the oppression of women and the threat of Islamic radicalism to western secular values. For others, it suggests a positive autonomous choice, a new kind of gender equality and a legitimate exercise of one’s freedom of religion – a treasured right in democratic societies. This book finds that, across seemingly diverse legal and political traditions, a set of discursive frameworks – the preoccupation with autonomy and choice; the imperative of gender equality; and a particular western understanding of religion and religious subjectivity – shape the positions of both proponents and opponents of various restrictions on Islamic veiling. Rather than take a position on one or the other side of the debate, the book focuses on the frameworks themselves, highlighting their limitations.

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Smith, “The Rise and Decline of American Religious Freedom”

9780674724754-lgThis February, Harvard University Press will publish The Rise and Decline of American Religious Freedom by Steven D. Smith (University of San Diego).

Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven D. Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.

Smith maintains that the distinctive American contribution to religious freedom was not in the First Amendment, which was intended merely to preserve the political status quo in matters of religion. What was important was the commitment to open contestation between secularist and providentialist understandings of the nation which evolved over the nineteenth century. In the twentieth century, far from vindicating constitutional principles, as conventional wisdom suggests, the Supreme Court imposed secular neutrality, which effectively repudiated this commitment to open contestation. Rather than upholding what was distinctively American and constitutional, these decisions subverted it. The negative consequences are visible today in the incoherence of religion clause jurisprudence and the intense culture wars in American politics.

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Anscombe, “State, Faith, and Nation in Ottoman and Post-Ottoman Lands”

Next month, Cambridge will publish State, Faith, and Nation in Ottoman and9781107615236 Post-Ottoman Lands, by Frederick F. Anscombe (University of London). The publisher’s description follows.

Current standard narratives of Ottoman, Balkan, and Middle East history overemphasize the role of nationalism in the transformation of the region. Challenging these accounts, this book argues that religious affiliation was in fact the most influential shaper of communal identity in the Ottoman era, that religion molded the relationship between state and society, and that it continues to do so today in lands once occupied by the Ottomans. The book examines the major transformations of the past 250 years to illustrate this argument, traversing the nineteenth century, the early decades of post-Ottoman independence, and the recent past. In this way, the book affords unusual insights not only into the historical patterns of political development but also into the forces shaping contemporary crises, from the dissolution of Yugoslavia to the rise of political Islam.

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Ackerman-Lieberman, “The Business of Identity: Jews, Muslims, and Economic Life in Medieval Egypt”

Next month, Stanford will publish The Business of Identity: Jews, Muslims, and 0804785473Economic Life in Medieval Egypt, by Phillip I. Ackerman-Lieberman (Vanderbilt University). The publisher’s description follows.

The Cairo Geniza is the largest and richest store of documentary evidence for the medieval Islamic world. This book seeks to revolutionize the way scholars use that treasure trove. Phillip I. Ackerman-Lieberman draws on legal documents from the Geniza to reconceive of life in the medieval Islamic marketplace. In place of the shared practices broadly understood by scholars to have transcended confessional boundaries, he reveals how Jewish merchants in Egypt employed distinctive trading practices. Highly influenced by Jewish law, these commercial practices served to manifest their Jewish identity in the medieval Islamic context. In light of this distinctiveness, Ackerman-Lieberman proposes an alternative model for using the Geniza documents as a tool for understanding daily life in the medieval Islamic world as a whole.

Posted on by Marc O. DeGirolami

Prtichard, “Religion in Public: Locke’s Political Theology”

Here’s an interesting new book, Religion in Public: Locke’s Political Theology Religion in Public(Stanford University Press 2013) by Elizabeth A. Pritchard (Department of Religion, Bowdoin) that considers and challenges the view that John Locke sought to privatize religion and instead argues that Locke’s political theology aimed to secularize religion and make it public. John Locke’s views about religion and toleration, of course, are important as intellectual sources for the religion clauses of the US Constitution. The abstract follows.

John Locke’s theory of toleration is generally seen as advocating the privatization of religion. This interpretation has become conventional wisdom: secularization is widely understood as entailing the privatization of religion, and the separation of religion from power. This book turns that conventional wisdom on its head and argues that Locke secularizes religion, that is, makes it worldly, public, and political. In the name of diverse citizenship, Locke reconstructs religion as persuasion, speech, and fashion. He insists on a consensus that human rights are sacred insofar as humans are the creatures, and thus, the property of God. Drawing on a range of sources beyond Locke’s own writings, Pritchard portrays the secular not as religion’s separation from power, but rather as its affiliation with subtler, and sometimes insidious, forms of power. As a result, she captures the range of anxieties and conflicts attending religion’s secularization: denunciations of promiscuous bodies freed from patriarchal religious and political formations, correlations between secular religion and colonialist education and conversion efforts, and more recently, condemnations of the coercive and injurious force of unrestricted religious speech.

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Jassen, “Scripture and Law in the Dead Sea Scrolls”

Next month, Cambridge University Press will publish Scripture and Law in the Dead Sea Scrolls by Alex Jassen (New York University). The publisher’s description follows. Scripture and Law in the Dead Sea Scrolls

This book is the first work of its kind to examine legal exegesis in the Dead Sea Scrolls from the perspective of both the history of Jewish law and early Jewish scriptural interpretation. It shows how the Dead Sea Scrolls transform the meaning and application of biblical law to meet the needs of new historical and cultural settings. The Dead Sea Scrolls legal texts are examined through the comparative lens of law and legal interpretation in Second Temple Judaism and rabbinic Judaism. The creative interpretation of scriptural texts in the Dead Sea Scrolls responds to the tension between seemingly rigid authoritative scripture and the need for law and scripture to be perpetually evolving entities. The ongoing legal interpretation of scriptural texts frames the development of Jewish law at the same time as it shapes the nature of the biblical canon.

Posted on by Marc O. DeGirolami

What is the “Church Plan” Issue?: An Explanation from Matt Bowman

In response to my post on the Eastern District of New York’s decision striking down the contraception mandate, and specifically my statement and questions about the third party administrator issue noted at the end of that post, reader Matt Bowman (with Alliance Defending Freedom, which represents Conestoga Wood) wrote me with the following helpful explanation (posted with his permission). If others have more information about the “church plan” issue, I’d welcome it, as it has been insufficiently considered.

As background, self-insured plans by religious non-profit entities have to fill out a different kind of “certification” under the final regulation’s “accommodation.” Their certification doesn’t merely declare a religious objection.  It doesn’t even merely mean that upon that certification, as you say, the TPA “assumes the obligation of providing the objected-to products to the employees.” The self-insured certification contains language that specifically designates the TPA to provide the objectionable coverage (also described as promised “payments”). The final regulation even points out that this added language is legally operative: the designation words themselves are what cause the TPA’s obligation to go get the coverage. Without the designation telling the TPA to go get that coverage, the TPA wouldn’t have any duty to be involved. The designation has legally operative power because of preexisting rules in ERISA. So it’s important to observe that for self-insured religious non-profits, there’s a “certification,” but there’s also a “designation”….This designation requirement also gives lie to the government’s mantra that religious non-profits don’t need to “contract or arrange for” objectionable coverage. The designation is, by definition, an act of contracting and arranging for the coverage….Because the designation constitutes legal “magic words,” the regulation goes on to specifically censor self-insured religious groups, by banning them from engaging in additional speech towards their TPAs to persuade them not to provide the objectionable coverage, for fear that such evangelical speech might negate the designation’s magic words. Finally, the regulation tells TPAs that if they get a self-insured certification+designation, and if they provide the birth control coverage, they will get reimbursed plus 10%.

In this context, the government has recently dropped somewhat of a bombshell into the non-profit lawsuits. It has declared that [it] didn’t realize until now that [its] penalty on TPAs does not apply in a “church plan,” because church plans are exempt from ERISA. (It’s important to note that “church plans” are not the same as a church’s plan. A church, which is exempt from the mandate, might have an insurance plan. But “church plans” are a defined category that enroll thousands of non-exempt non-churches, like universities, hospitals, charities, etc., who merely share a religious affiliation.) The government’s revelation has led to bizarre results. The government insists that entities enrolled in self-insured church plans must still file their designations, which contract and arrange for their TPA to obtain the exact coverage the organization objects to. But the government admits that the designation is false: it does not, as claimed on the face of the language, actually trigger ERISA duties on a church plan’s TPA, because these plans are exempt from ERISA.The designation does, however, trigger the TPA’s reimbursement plus 10% if they choose to cover the items. And the government vaguely says it will consider “fixing” this oversight (three years, six regulations, and 1 million public comments later). Of course all of this could have been “fixed” and avoided if religious objectors were exempt at the outset.

The impact of this revelation was on grand display in the EDNY case.

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