Posted on by Marc O. DeGirolami

Arsheim on the Meanings and Uses of Religious Freedom

Helge Årsheim has an interesting piece on the Immanent Frame blog which recapitulates some of the debates that he has been sponsoring at his PluRel blog (to which I gladly contributed) and offers some thoughts of his own, particularly as respects the meaning and scope of religious freedom in the international sphere. Below is an extended chunk from Helge’s post. The only little addendum to it that I’d make here is that the extent to which US domestic law is “splendidly isolated” from international law is, of course, famously a matter of both descriptive and normative contestation within the US legal community! Here’s Helge:

The international law on religious freedom is not limited to religion, but denotes a set of legal measures set in motion to protect beliefs and their ”manifestations” from undue limitations and interference. Explicitly covering beliefs well beyond the confines of any traditional definition of religion, the right as it is codified in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and surrounding legal texts – collectively known as the International Bill of Rights – does not require legal systems, whether international or domestic, to decide on the merits of one religion over another. The expansive nature of the freedom of religion or belief in international law thus provides an unequivocal answer in the negative to the overarching question in all dealings with religion in political or legal contexts: whether religion is a special, set apart, sui generis concept that requires particular attention and protection over other concerns. Religion, as it is construed in international legal texts, is just one subset of an expansive range of protected beliefs that can be subjectively held without any form of state interference. While the inclusion of terms like “manifestation,” “observance,” “belief,” and “conscience” are drawn from, and therefore clearly favor, certain religious traditions to the exclusion of others, their interpretation in the practice of the UN Human Rights Committee are explicitly detached from a religious framework.

Once the serene, inclusive, and clear-cut concept of religious freedom in international law is confronted with the myriad cultural, historical, political and academic iterations of religious freedom that dominate domestic legal practice, however, the content of “religion and belief” moves from being non-theist and inclusive to a more ambivalent status: in these competing visions of what religious freedom may or may not be, the contents of both “religion” and its relation to “freedom” is hotly contested. These contestations take place across a wide array of societal spheres, and concern the origin and metaphysical status of religion in society and the political sphere; what groups, doctrines and practices can be construed as “religious” and competencies and duties arising from this identification; and the relationship between majority and minority religious traditions in history and culture. Contrary to the dictates of international law, the vast majority of competing visions of religious freedom in the domestic sphere are united by their emphasis on the determination of religion as religion….

While the disconnect between international and local conceptions of religious freedom is well known and has been decisive to the development of the “margin of appreciation” doctrine of the European Court of Human Rights, the exchange at the PluRel blog displays a number of different positions on how this disconnect can and should be interpreted. Winnifred Sullivan observes in her inaugural post that US law is “…constantly bumping up against the unstable collection of social facts that have come to be assembled under the word “religion,”” and that for this reason, we should “find some other words.”. At the other end of the spectrum, Marc O. DeGirolami observes that US legal actors believe that religion is a “special cultural phenomenon,” the definition of which should be based on analogies to “historical and culturally contingent settlements,” rather than findings from the “academic study of religion.”

Sullivan and DeGirolami prescribe solutions that display very different views of the power of law, but share a basic conviction that social practices that can fall under the rubric of religion are worthy of legal protection or non-interference. Where Sullivan suggests that law is unable to grant this form of protection due to its preference for certain majority traditions over lived religious practice, DeGirolami seems to consider this preference part of the culturally contingent settlements on which law relies, a preference that cannot be unsettled by the findings of academics. Although one would expect a cultural affinity between US and international law on religious freedom in their shared preference for Protestant conceptions of religion, neither Sullivan nor DeGirolami address the international legal framework, demonstrating the splendid isolation of US legislation and jurisprudence on this issue. This isolation is a common feature of US law, which has a longstanding tradition of ignoring international law. Additionally, the turning point of the non-establishment clause of the US constitutional law on religious freedom is the neutrality of the state, an issue entirely outside the purview of international law.

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Posted on by Marc O. DeGirolami

EDNY: Contraception Mandate Violates RFRA

The United States District Court for the Eastern District of New York has issued a decision holding that the HHS contraception mandate violates the Religious Freedom Restoration Act (see here for a previous post on this case). Certain plaintiffs in the case are Catholic non-profit organizations that qualify for the “accommodation” offered by government. Other plaintiffs are Diocesan–the lead plaintiff is the Roman Catholic Archdiocese of New York–and qualify for the exemption. All plaintiffs are self-insured. The exempted plaintiffs’ claims were dismissed.

The remainder of this post will focus on the non-exempted but “accommodated” plaintiffs (for more on exactly who falls into this group, see Points 2B and 3 in this post), whose claims succeeded. The government’s “accommodation” is to allow non-exempted non-profits to fill out a self-certification indicating that they have religious objections to providing the objected-to products to their employees. In the case of self-insured, non-exempted non-profits (such as these plaintiffs) the government demands that such organizations notify a third-party administrator (TPA) of their self-certification, at which time this TPA assumes the obligation of providing the objected-to products to the employees (there is an important wrinkle here that I will note at the end of this post).

In granting the plaintiffs’ motion for summary judgment, the court first held that plaintiffs satisfied the substantial burden prong of the RFRA test. In so holding, it applied a “substantial pressure” standard to evaluate whether plaintiffs suffered a “substantial burden”: “Rather than whether the pressure is indirect or direct, it seems that the more important distinction for the case at bar is between government action that pressures an individual to act inconsistently with his beliefs, and government action that discourages a plaintiff from acting consistently with those beliefs.” The court held that the self-certification requirement imposed by the “accommodation” on non-exempted non-profits was a substantial burden and rejected the government’s proposed test that a court should evaluate whether the burden was “de minimis” or should evaluate whether the self-certification is “too attenuated” to constitute a substantial burden.

The court also found that the government had not provided a compelling interest in mandating contraception coverage in the fashion it has selected. The government offered “the promotion of public health, and ensuring that women have equal access to health-care services” as its compelling interests. Though the court accepted these interests as important in the abstract, it rejected the government’s claim that granting exemptions to these plaintiffs would undermine the government’s ability to administer its regulation so as to achieve its aims uniformly.

Critically, it distinguished United States v. Lee–a case rejecting an Amish plaintiff’s request for exemption from paying taxes into Social Security–on the ground that the whole contraceptive mandate system would not collapse if exemptions were granted in these cases and the government’s application of the mandate is not uniform. Lee is a case on which proponents of the mandate have been placing great emphasis, but the death spiral dynamics at issue in Lee do not seem present here, in large part because of the government’s own exemptions. Here is the key language from the decision:

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Posted on by Perry Dane

The Polygamy (aka “Religious Cohabitation”) Decision

Just a few words about the decision a few days ago in Brown v. Buhman, in which a federal district court judge in the District of Utah struck down a portion of Utah’s bigamy statute.

The Utah statute provides that:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

At its core, this statute, like all bigamy statutes, criminalizes knowing efforts by a married person to enter into another state-licensed, state-sanctioned, marriage.  Such marriages are both criminally punishable and void.  (This might seem like a paradox, but it’s not.  Many illegal contracts are both punishable and void).  But in the light of Utah’s distinct history with polygamy, both the language of the statute and its interpretation by courts go a step further than most other states:  They also seek to punish persons who “purport to marry” even by entering into purely “private” or religious marriages. without trying to get a license, and without demanding any legal benefits or rights from the state.  On the other hand, the Utah courts have also held that the statute only covers relationships that hold themselves out to be “marriages” of one sort or another.  Thus, despite the “cohabitation” language, the statute does not cover simple adultery, even when the adulterers live together.  Nor does it cover someone like Hugh Hefner, who often lived with several women in one household, but was never married (or held himself out to be married) to more than one at a time.

The district court upheld what I’m calling the core application of the statute.  It really had no choice given Reynolds v. United States, the famous 1879 United States Supreme Court decision that denied Mormon polygamists religion-based exemptions from territorial bigamy laws.  But the district court struck down the extended application of the statute.  It held that (1) the state had no legitimate interest trying to regulate purely “religious cohabitation” and (2) that the law unconstitutionally discriminated between such “religious cohabitation” (in which the parties held themselves out to be in some sense “married”) and other extra-marital or multiple-partner arrangements.

I don’t want to discuss the opinion at length here.  I don’t want to discuss whether the district court played fast and loose with the precedents.  Nor do I want to discuss whether there should be a constitutional right to religiously-based polygamy.  

But I do think one point deserves emphasis:  This opinion is yet another instance of a serious and damaging failure, which I’ve discussed in other contexts here, here, and here, to appreciate the distinctively interwoven, intertwined, character of marriage in the United States.  Marriage as we know it carries a complex combination of governmental, religious, cultural, sociological, psychological, and maybe even “natural” meanings.  And those meanings have never been, and probably cannot be, kept hermetically sealed off from each other. Read more

Posted on by Perry Dane

A Blegging Blog about Blood in Bologna

This post concerns an old and much-cited legal chestnut that I have come to think might be more profound (and more tied to “law and religion”) than first appears.  It is also a bleg — a request for help from anyone out there with some expertise in medieval law or medieval Latin, or both.

William Blackstone, in his discussion of statutory interpretation in his Commentaries (first published 1765-69), refers to

the Bolognian law, mentioned by Puffendorf [sic], which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” [and] was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

The point here, of course, is that words should not be read literally if that would give them “a very absurd signification.”

Blackstone’s source, Samuel von Pufendorf, discusses this “case” in his “Law of Nature and Nations,” first published in 1672, and Pufendorf in turn cites a 1516 digest of legal arguments by Nicholas Everhard (aka Everardi, Everts, and several other names).   Pufendorf, for example, adds that the defendant “was in no little peril because it was added in the statute that the words should be taken exactly and without any interpretation.”  Everhard leaves out that tidbit, but does spin out the legal argument at greater length, and emphasizes that punishing the healer would be “absurd and inhuman,” not merely “absurd.”

Now, my intuition tells me that there’s more to this odd tale than meets the modern eye.   Read more

Posted on by Mark Movsesian

SSRN Selects Movsesian Essay on Armenian Genocide As a Weekly Top Five Paper

I’m delighted to note that the Social Science Research Network has selected my essay, “Elusive Equality: The Armenian Genocide and the Failure of Ottoman Legal Reform,” as one of its Weekly Top Five Papers this week. The SSRN archive contains approximately 425,000 papers from scholars around the world; roughly 66,000 are added each year. So being named one of the weekly top five papers is great news, indeed. Thanks to SSRN!

As I told SSRN,

I wrote this essay for a symposium on legal issues surrounding the Armenian Genocide of 1915. In part, it is an essay in legal history. It describes how reforms in Ottoman law, designed to benefit religious minorities like Armenian Christians, perversely led to a backlash against those very minorities.

The essay also contributes to the emerging field of comparative law and religion. Comparative L&R explores how different legal regimes reflect, and influence, the relationships religious communities have with the state and with each other. Here, I discuss the treatment of Christians in classical Islamic law and show why the transition to a secular, egalitarian regime proved so difficult and had such dire consequences for vulnerable communities.

You can download the paper here. (Why not download more than once?).

Posted on by Mark Movsesian

The Ukrainian Protests and the Orthodox Church(es)

Even casual observers know that Orthodox Churches traditionally have close ties with the state. So many in the West don’t know what to make of the fact that, in the current conflict in Ukraine, the Ukrainian Orthodox Church appears to be siding with the protesters. The New York Times, for example, reports that protesters running from riot police in Kiev take refuge in a historic Orthodox monastery, and that the Church’s patriarch, Filaret (above), strongly opposes the government. Filaret has stated that Ukraine should look West and join the European Union, and that President Victor Yanukovich, who recently announced that Ukraine would not agree to a long-anticipated trade deal with the EU, should resign.

To understand what’s going on, one has to know a little about the divisions within Orthodoxy in Ukraine. Patriarch Filaret is the leader of the Ukrainian Orthodox Church-Kyvian Patriarchate. The Kyvian Patriarchate is in schism from the main body of Orthodoxy in Ukraine, the Ukrainian Orthodox Church-Moscow Patriarchate, which, as its name suggests, is under the jurisdiction of the Russian Orthodox Church in Moscow. The Moscow Patriarchate does not recognize the canonical status of the Kyvian Patriarchate; indeed, no Orthodox Church  in the world does. (To make things even more confusing, the Ukrainian Orthodox Church of the USA is under the jurisdiction of neither the Kyvian or Moscow Patriarchates, but the Ecumenical Patriarchate of Constantinople).

It’s not at all surprising, therefore, that Patriarch Filaret would support closer ties with Europe and a weakening of Russian influence in Ukraine. He and his flock are likely to have more status and independence in a Ukraine that looks toward the West. This is just another example of how religious and political interests often converge. As Daniel Larison writes, it will be interesting to see if there is now a pro-Russian pushback from those Ukrainians loyal to the Moscow Patriarchate.

Posted on by Marc O. DeGirolami · 1 Comment

Bartrum on Religion and the Restatements

Here’s a very interesting piece by Ian Bartrum (UNLV) on the ways in which the Restatements of Law (assembled by the American Law Institute, the Restatements aim to condense and synthesize bodies of law) incorporate or otherwise treat religion, and how they might do so more effectively. Because the abstract is very short, but because there is a request not to cite from the paper, I’ll just say quickly that Ian divides up the treatment of religion into two components which correspond roughly to the two guarantees of religious freedom under the religion clauses. There are provisions in various Restatements that approach religion as a matter of “natural” or fundamental right (as in the Restatement of Foreign Relations and in the Restatement of Servitudes [who knew that there was a Restatement of Servitudes!?]). But there are other provisions that seek to avoid judicial entanglement in issues of personal or institutional autonomy–such as in the “Principles of the Law of Family Dissolution” involving the religion of children of divorced couples and the extent to which courts should involve themselves in making comparative judgments about religions–reflecting familiar establishmentarian concerns.

After considering several examples where the Restatements seem to evince cross-cutting views about religion, Prof. Bartrum notes a few places where the Restatements might give greater (or even some) attention to religion. The Restatement of Torts, for example, might attend to some of the recent issues involving church autonomy and the ministerial exception. And the Restatement of the Conflict of Laws might consider some of the recent issues involving the enforceability of arbitration decisions in religious contexts. I hope these suggestions are adopted by the American Law Institute.

Posted on by Marc O. DeGirolami

Berger on Kemalism Here and Abroad

Peter Berger has an interesting column this week, well worth reading in full, about the display of religious symbols by the government and the culture war features of legal disagreement. The legal cases he discusses are not new–the Utah public highway cross case (Davenport v. American Atheists) which the Supreme Court declined to hear and the Lautsi case. Professor Berger might have noted that in declining to hear the case, the Supreme Court left intact the Tenth Circuit’s ruling striking the crosses down as an Establishment Clause violation.

But that’s largely irrelevant, for the insights of the column lie in his comparative cultural analysis:

Why the recent flurry of church/state issues? In America it is part of the politics surrounding the so-called “culture wars”:  The rising influence of conservative Protestants in the Republican party has mobilized liberals against any political role of organized religion—especially since conservative Catholics have been allied with conservative Protestants on most of the issues “south of the navel” (issues, that is, that liberals are personally anxious about). The politics in Europe is different: Conservative Christianity (Protestant or Catholic) is not very significant politically, but the perceived threat of militant Islam has made secularism (such as French laicite) appear as a defense of European values against theocracy.

I think there is also the factor of lawyers looking for business, and then the professional deformation of this group comes into play. Lawyers live, literally and emotionally, on the making of fine distinctions. Thus the distinctions made in American courts, on where a particular instance violates or does not violate the First Amendment, are veritably scholastic (or, if you will, Talmudic). These considerations tend to be sovereignly free of common sense. . . . Am I exaggerating? Of course I am. But I do so for a reason: I am applying the old casuistic method of reductio ad absurdum. 

Let me “reduce” some more: The Kemalist assault on religion in public space is related to an old progressive notion, the abolition of history. It goes back to the Enlightenment and particularly to its political expression in the French Revolution. It was not for nothing that the latter abolished the old calendar and substituted a new one (with months like brumaire and thermidor). That particular exercise did not last long, but the underlying progressive idea persisted: By the very notion of progress, the present is further on the march toward the glorious future than anything in the past. It affected America too: see the motto about the “new order of the ages” emblazoned on the Grand Seal of the United States (and on the dollar bills in your wallet). But in this country these utopian fantasies have often been modified by common sense and by Protestant suspicions about human nature. Be this as it may, the abolition of history continues to be a dream that haunts the progressive imagination . . . .

As I write this, we are on the eve of the Christmas season (the ADL guide would surely prefer just plain “holiday season”). There is the usual orgy of shopping, the favored season for shopkeepers to be merry. Christmas carols blare through the PA systems, jolly Santa Clauses (fully evolved from their saintly ancestor, St. Nicholas) listen to the wishes of small children perched on their knees, everyone smiles with good will. This synthesis of religion and secularity is regularly criticized from opposite sides. The secularists don’t like the religious part. They can’t do much about the shopping malls, but they can surely agitate and litigate against any trace of Christianity in the holiday season insofar as it is acknowledged on government property—maybe crèches can be allowed, but without baby Jesus or any other New Testament characters. If any values are to be celebrated, they are family ties, the happiness of children and general good will. And on the other side are those who want to “bring Christ back into Christmas”, doing away with all the supposedly fake jolliness and commercial exploitation, instead restore the original religious character of this holy-day. I think that both criticisms are misguided. There is nothing fake about the secular cheer of the season, nor about the expressions of general amiability – and there is nothing wrong about the fact that some people are making money out of it. Those who want to focus on the birth of Christ the savior, are free to do so. Let me admit it: I do celebrate the birth of Christ at Christmas. I also like the secular cheer that is also celebrated. I even like the commercialism—it is a source of happiness for many people, especially children.

Posted on by Marc O. DeGirolami

Does RFRA’s Least Restrictive Means Test Violate the Constitution?

Those pressing the claim that an exemption in the contraception mandate cases before the Supreme Court would violate the Establishment Clause face a few challenges–doctrinal, textual, and historical. The one that interests me in this post is that the test they favor is in considerable tension with the RFRA framework. Under the interpretation of the Establishment Clause being pressed, it seems to me that the least restrictive means test that represents the third prong of the strict scrutiny standard in RFRA and RLUIPA is constitutionally suspect.

Recall the theory: religious accommodations are unconstitutional if they shift “significant burdens” onto a “focused and identifiable class of third parties.” For the moment, leave aside the “focused and identifiable” component. We know that under RFRA, the religious claimant must allege a substantial burden on religious exercise. If it does so, the burden shifts to the government to show that the substantial burden on religious exercise it has imposed is justified by a compelling governmental interest. But the government must also show that it is using the least restrictive means to achieve its interest. So, for example, the government cannot simply say that the contraception mandate is supported by its compelling interest in good health care, full stop. Its statement of its interest is invariably focused and refined by the need to demonstrate that it has used the narrowest means available–that means which least burdens the religious claimant–to achieve its interest. And the least restrictive means component of the RFRA test is, in fact, one of the points on which it has been argued that the government’s case for the contraception mandate is weakest.

Suppose one accepts the claim that any “significant” burden resulting from cost shifting onto third parties triggers an Establishment Clause claim (again, for the moment, set to the side the question of what constitutes a “focused and identifiable” group). It seems to me that one would also be saying that the least restrictive means test is at least presumptively constitutionally suspect. The more narrowly tailored a means is so as to avoid burdens on religious objectors, the more probable it becomes that the means selected will burden third party interests. There may perhaps be rare occasions when an accommodation imposes no costs at all on third parties. But very often this will look like a sliding scale: as the imposition on the religiously burdened party decreases, the imposition on third parties increases. And by the time that one gets to the least restrictive means, the sliding scale is very much calibrated against the third party interests. By that point, it will have become highly probable–in some cases verging on certain–that the means chosen will impose “significant” burdens on third parties.

Take these cases.

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Posted on by Mark Movsesian · 1 Comment

Will the Hagia Sophia Again Become a Mosque?

When I heard the rumors this fall, I have to confess, I dismissed them. And maybe it is only political posturing. But leading Turkish officials are actually talking about converting the famed Hagia Sophia in Istanbul back into a mosque.

The Hagia Sophia, or Church of the Holy Wisdom, was built by the Emperor Justinian in the sixth century. (“Solomon,” the emperor cried when he saw the completed church, “I have surpassed thee!”). For 1000 years, it was the largest Christian cathedral in the world and the emblem of Byzantium. After the empire fell in 1453, the Ottomans converted the church into a mosque. About 500 years after that, the secular Kemalist government made it a museum. And so it has remained.

Now, however, a nationalist party has introduced legislation to reconvert the building to a Muslim place of worship. The idea has support at very high levels. In October, the imam at the neighboring Sultan Ahmet Mosque–a government official–called for Hagia Sophia to reopen as a mosque. Last month, at a public event in Istanbul, Turkey’s Deputy Prime Minister, Bulent Arinc, referred approvingly to two other churches-turned-mosques-turned-museums-turned-mosques-again, one in Trabzon and one in Iznik (once known as Nicea). And he made this comment about the Hagia Sophia itself: “We currently stand next to the Hagia Sophia Mosque. We are looking at a sad Hagia Sophia but hopefully we will see it smiling again soon.”

Arinc’s implication is unmistakable. According to the Religion News Service, Turkey’s ruling party, the Islamist AKP, is trying to shore up its base ahead of March provincial elections. It’s smart politics. AKP rank-and-file see Kemalism as a huge historical mistake and wish to return to the pan-Islamism of the Ottoman Empire. Converting Byzantine and other historical Christian monuments from museums into mosques is a way of rejecting secularism and returning to Turkish roots. The Hagia Sophia is the greatest symbol of all. That’s why, in the words of one observer, “Supporting the reopening of Hagia Sophia has become the litmus test of the true believer.”

When it comes to appropriating the temples of the vanquished, no great religion is innocent. Historically, Christians often built churches on the ruins of pagan shrines. One of my favorite sites in Rome, the Basilica of San Clemente, sits atop a Mithraic temple, the ruins of which are still visible. After the Reconquista, Rod Dreher writes, Christians converted the great mosque of Cordoba into a cathedral. The point of such conduct is obvious. The victor wishes literally to squash the altars of the vanquished, to humiliate and demoralize followers of the old way. Our god is greater than yours.

But this sort of thing doesn’t happen anymore in the civilized world. As Dreher writes, converting the Hagia Sophia into a mosque now, after it has been a museum for decades, would be “a stunning act of cultural aggression” against Christians in Turkey, particularly the handful of Greeks who somehow have managed to hang on there. It would put the lie to claims of pluralism. And it would underline, as few other acts could, what Samuel Huntington famously called “the clash of civilizations.”