Posted on by Marc O. DeGirolami

REMINDER: Register for the 2014 Lumen Christi Conference!

Just a gentle reminder that the 2014 Conference on Christian Legal Thought is only a few weeks away! The conference is sponsored by the Lumen Christi Institute at the University of Chicago and the Law Professors Christian Fellowship and occurs in conjunction with the annual AALS meeting, which is being held in Manhattan this year. This year’s conference celebrates the life and thought of Professor Jean Bethke Elshtain and explores the theme of public engagement with law and religion. It’s a topic that should be of broad interest in this period of great ferment in the field.

The schedule is below. Please register here!

Friday, January 3, 2014, 12:00 pm to 6:00 pm

The University Club

One West 54th Street, New York, NY 10019

Conference Topic: Public Engagement With Law and Religion: A Conference in Honor of Jean Bethke Elshtain

Noon: Registration, Luncheon, and Opening Remarks

1:15 pm – 2:45 pm: Session One. Public Engagement With Law and Religion: The Thought of Jean Bethke Elshtain

Chair: Zachary R. Calo (Valparaiso University School of Law)

* Thomas C. Berg (University of St. Thomas School of Law)

* Eric Gregory (Princeton University, Department of Religion)

* Charles Mathewes (University of Virginia, Department of Religious Studies)

2:45 pm – 3:00 pm: Coffee Break

3:00 pm – 4:30 pm. Session Two. Public Engagement With Law and Religion: Journalistic Perspectives

Chair: Marc O. DeGirolami (St. John’s University School of Law)

* Matthew Boudway (Associate Editor, Commonweal)

* Susannah Meadows (Contributor, New York Times)

* Rusty R. Reno (Editor, First Things)

4:45 PM – 5:15 pm: Vespers

5:15 pm: Reception

Posted on by Mark Movsesian · 2 Comments

“The Oxford Handbook of Atheism” (Bullivant & Ruse, eds.)

Next month, Oxford will release The Oxford Handbook of Atheism, edited by Stephen Bullivant (St. Mary’s University College) and Michael Ruse (Florida State University). The publisher’s description follows:

Recent books by, among others, Sam Harris, Richard Dawkins, and Christopher Hitchens have thrust atheism firmly into the popular, media, and academic spotlight. This so-called New Atheism is arguably the most striking development in western socio-religious culture of the past decade or more. As such, it has spurred fertile (and often heated) discussions both within, and between, a diverse range of disciplines. Yet atheism, and the New Atheism, are by no means co-extensive. Interesting though it indeed is, the New Atheism is a single, historically and culturally specific manifestation of positive atheism (the that there is/are no God/s), which is itself but one form of a far deeper, broader, and more significant global phenomenon.

The Oxford Handbook of Atheism is a pioneering edited volume, exploring atheism – understood in the broad sense of “an absence of belief in the existence of a God or gods” – in all the richness and diversity of its historical and contemporary expressions. Bringing together an international team of established and emerging scholars, it probes the varied manifestations and implications of unbelief from an array of disciplinary perspectives (philosophy, history, sociology, anthropology, demography, psychology, natural sciences, gender and sexuality studies, literary criticism, film studies, musicology) and in a range of global contexts (Western Europe, North America, post-communist Europe, the Islamic world, Japan, India). Both surveying and synthesizing previous work, and presenting the major fruits of innovative recent research, the handbook is set to be a landmark text for the study of atheism.

Posted on by Mark Movsesian

Conference: Christianity and Freedom (Dec.13-14)

For our readers in Europe, Georgetown’s Berkley Center will host what looks to be a fantastic conference in Rome this weekend, “Christianity and Freedom: Historical and Contemporary Perspectives.” The conference, which boasts an all-star lineup, will take place at the Pontifical Urbaniana University. Here’s the organizers’ description:

From Cairo and Damascus to Tehran and Beijing, religious freedom is under siege. Ironically, it is Christianity—a faith that contributed decisively to the rise of religious liberty—that now finds itself increasingly persecuted around the world. In view of this global crisis, Georgetown University’s Religious Freedom Project will host a two-day conference in Rome highlighting Christianity’s contributions to the understanding and practice of freedom for all people. The conference will present findings from a two-year study by dozens of scholars concerning Christianity’s contributions to freedom. This event is co-sponsored by Baylor University’s Institute for Studies of Religion and is made possible by a generous grant from the Historical Society’s Religion and Innovation in Human Affairs Program.
Posted on by Mark Movsesian

“The Original Atheists” (S.T. Joshi, ed.)

Next month, Random House publishes The Original Atheists, an anthology of 18th-century writings edited by S.T. Joshi. (Did atheism really originate in the 18th Century?). The publisher’s description follows:

This is the first anthology ever published to feature the writings of leading eighteenth-century thinkers on the subjects of atheism, religion, freethought, and secularism.

Editor S. T. Joshi has compiled notable essays by writers from Germany, France, England, and early America. The contributors include Denis Diderot (a principal author of the multivolume French Encyclopédie), Baron d’Holbach (System of Nature, 1770), Voltaire (Philosophical Dictionary), David Hume, Immanuel Kant, Thomas Jefferson, James Madison, Ethan Allen, Thomas Paine, and other lesser-known thinkers.

With a comprehensive introduction providing the intellectual and cultural context of the essays, this outstanding compilation will be of interest to students of philosophy, religious studies, and eighteenth-century intellectual history.

Posted on by Mark Movsesian

Compton, “The Evangelical Origins of the Living Constitution”

Next spring, Harvard will publish The Evangelical Origins of the Living Constitution, by Chapman University Professor John Compton. The publisher’s description follows:

The New Deal is often said to represent a sea change in American constitutional history, overturning a century of precedent to permit an expanded federal government, increased regulation of the economy, and eroded property protections. John Compton offers a surprising revision of this familiar narrative, showing that nineteenth-century evangelical Protestants, not New Deal reformers, paved the way for the most important constitutional developments of the twentieth century.

Following the great religious revivals of the early 1800s, American evangelicals embarked on a crusade to eradicate immorality from national life by destroying the property that made it possible. Their cause represented a direct challenge to founding-era legal protections of sinful practices such as slavery, lottery gambling, and buying and selling liquor. Although evangelicals urged the judiciary to bend the rules of constitutional adjudication on behalf of moral reform, antebellum judges usually resisted their overtures. But after the Civil War, American jurists increasingly acquiesced in the destruction of property on moral grounds.

In the early twentieth century, Oliver Wendell Holmes and other critics of laissez-faire constitutionalism used the judiciary’s acceptance of evangelical moral values to demonstrate that conceptions of property rights and federalism were fluid, socially constructed, and subject to modification by democratic majorities. The result was a progressive constitutional regime—rooted in evangelical Protestantism—that would hold sway for the rest of the twentieth century.

Posted on by Mark Movsesian · 1 Comment

Yoga in Public Schools, American and Indian

Indian Schoolchildren Doing Yoga (NYT)

Last summer, I wrote about a constitutional challenge to yoga classes in California public schools. When a school district near San Diego added yoga to its elementary-school gym program, some parents complained. Yoga, they said, is a Hindu discipline, and including it in a compulsory gym class violates the Establishment Clause. A state trial court disagreed, holding that the school district had removed all religious references, so that what remained was simply a stretching class for kids.

It turns out that similar litigation is unfolding across the world in India, the place where yoga originated. But there, the courts appear to be taking a harder line. The plaintiffs in the Indian case want that country’s Supreme Court to order public schools to include yoga in the curriculum. They cite a 2005 study showing that yoga is important for students’ mental and physical health. The Supreme Court hasn’t ruled yet, but has expressed concern about ordering public school students to take yoga classes. Why? Because Indian public schools are officially secular, and yoga is a religious practice. At oral argument this fall, the court said that parents from minority religions–Christianity and Islam, for example–might object to a requirement that their children engage in Hindu exercises at school. The court has asked representatives of the minority religions to appear in the litigation as third parties to state their views.

What explains the different reactions of the American and Indian courts? Much has to do with the different cultural understandings of yoga. Here in the US, most people who do yoga don’t think of it as religious. Spiritual, yes, in the sense that it creates a sense of inner peace, but not religious. Oh, people may understand that yoga has Hindu roots and that some elements, like the salutation to the sun god and chanting the word “Om,” have religious meanings. But these aspects of yoga intrude very little on their experience. “Sure, yoga is religious for some,” they might say, “but not for us. Maybe other people think they’re greeting the sun god, and that’s fine. But we’re just stretching.” So when a public school says it has removed the religious elements of yoga and retained the secular, most Americans would find that position plausible. 

The difficulty is that yoga, as traditionally understood, doesn’t work that way. In traditional understanding, yoga is itself a religious act. The postures themselves lead the practitioner to God, whether the practitioner intends this or not. In traditional understanding, in other words, one can’t separate the religious and secular aspects of yoga and one really shouldn’t try. Indeed, some American Hindus object to the way our popular culture treats yoga as a designer gym routine. Much as many American Christians seek to “Keep Christ in Christmas,” the Hindu American Foundation has mounted a campaign to “Take Back Yoga” for the faith.

Perhaps yoga means one thing in one cultural context but something else in another. You’d have to think, though, that judges in yoga’s home country have a pretty good sense of what the practice is all about. The parents in the California case, who have appealed the trial court’s ruling, might want to have a look at the Indian court’s ultimate decision. 

Posted on by Marc O. DeGirolami

On the Claim That Exemptions From the Contraception Mandate Violate the Establishment Clause

I am glad to see that in the wake of the cert. grants for Hobby Lobby and Conestoga Wood, there has been a frothing up of interest in the issues presented by these cases, issues that we here have been discussing for quite some time at CLR Forum. In this post, I want to address one such new claim.

Professors Nelson Tebbe and Micah Schwartzman (T&S) recently argued that an exemption from the contraception mandate under RFRA for employers like Hobby Lobby or Conestoga Wood would violate the Establishment Clause. They elaborate on their claim here and here. Many of the arguments are derived from this paper by Professor Fred Gedicks and Rebecca Van Tassell. The core of the argument is that granting an exemption from the mandate would privilege or favor religion inasmuch as it would shift the burden of purchasing contraception to third parties–i.e., the employees of the exempted corporations. The key to understanding the argument is their reliance on a Burger Court case, Estate of Thornton v. Caldor, which involved an exemption for employees from working on their Sabbath day. A Presbyterian who wished not to work on Sunday sued Caldor after the company dismissed him from a management position because he would not work Sunday. Because the law took absolutely no account of the secular interests of third parties (the employers), the law was found to violate the Establishment Clause. The “unyielding weighting in favor of Sabbath observers” resulted in a major burden on employers. T&S rely especially on this quote of Judge Learned Hand cited in Thornton: “The First Amendment … gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities.” T&S (as well as Gedicks and Van Tassell) note that the principle of Thornton was restated in dicta in a more recent case, Cutter v. Wilkinson, which involved the application of RLUIPA. Justice Ginsburg, in dicta, said that in applying RLUIPA, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”

I think the argument is interesting, but mistaken. In truth, I have never understood Thornton very well at all and find it to be a difficult case. So I’ll start with a few basic points about exemptions and RFRA.

First, any exemption in this context will be directed toward benefiting some religious practice, and by being so directed, it will necessarily not benefit all others–i.e., “third parties.” If all choices to protect a specific form of religious exercise violate the Establishment Clause, then all exemptions for religion are Establishment Clause violations. The only thing that would be left for legislators is a law like RFRA, which accommodates religious exercise generally. Could it really be the case that the only thing the Establishment Clause permits is all or nothing? I don’t think so, and the Court has never said so. Professor Schwartzman, in other contexts, has questioned whether religion is a special category at all. If that argument were accepted and given constitutional force, then even laws like RFRA would be unconstitutional, because if the choice to protect religious exercise over non-religious ethical belief advances religion, then both specific and general accommodations are unconstitutional. The Court has not adopted that view. As Corporation of the Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Amos (1987) put it, “This Court has long recognized that the government may (and sometimes must) accommodate religious practices, and that it may do so without violating the Establishment Clause.”

Second, all exemptions burden third parties in one way or another. An exemption from laws proscribing peyote smoking imposes social costs of various kinds on third parties. An exemption from compulsory school attendance laws does so as well. An exemption for prisoners from wearing prison uniforms will burden prison officials and guards, and ultimately, everyone who is invested in a uniform system of penal justice. Indeed, one could go much further: all rights have costs that fall on third parties (you pick the context–the speech clause, Miranda rights, etc.). Thornton does not say that any time there is any shifting of burdens, the Establishment Clause is violated. Chief Justice Burger’s opinion was much, much narrower than that. It left open the possibility that a more carefully crafted Sabbath exemption law would be constitutional. That is more or less the upshot of Sherbert v. Verner (which was treated as good law by Thornton), where the Court held that a Seventh-day Adventist could not be denied unemployment compensation benefits because she refused to work on the Sabbath. In affirming that case, the Thornton Court is also affirming that it is perfectly constitutional for a state to exempt employees from Sabbath work on religious grounds, thereby imposing the costs of that exemption on third parties. All that Thornton is saying is that a law which imposes extremely severe burdens on secular interests through an “unyielding weighting of” religious interests over those other interests, and which takes no account of the secular interests at all, is constitutionally problematic. Consider an example. Under the Connecticut law at issue in Thornton, a school that is open only 5 days a week would have to provide Sabbath day exemptions to any teacher that asked for it. The burden on the school might be so severe as to impede its ability to function–compelling it even to close. The Thornton Court said that it had to “take pains not to compel people to act in the name of any religion.” (emphasis mine). It’s that kind of extreme burden on secular interests that rendered this law unconstitutional. Another obvious example might be an accommodation that interfered with a third party’s religious freedom–compelling the third party to engage in religious activities. Yet while the Court has said that “[a]t some point, accommodation may devolve into ‘an unlawful fostering of religion,'” Amos, only an extreme and absolute imposition on third party interests would justify that conclusion.

Third, both Thornton and a case like Texas Monthly v. Bullock seem to suggest that the burden imposed on secular interests must be state-imposed. Here the question is somewhat complicated inasmuch as the “burden” on employees is said to result from the combination of private claims and state power. Nevertheless, what these cases concerned is the alleviation of burdens on religious or secular beliefs imposed by the state.

Fourth, T&S wonder why nobody has made much of the Establishment Clause claim. But I think there is a good reason. RFRA incorporates certain limits to accommodation. That is, it would be a very rare RFRA (or RLUIPA) accommodation indeed which was constitutionally problematic under Thornton, because all RFRA (and RLUIPA) accommodations need to satisfy the substantial burden, compelling interest, least-restrictive-means threshold. The law at issue in Thornton, according to the Court required an accommodation “no matter what burden or inconvenience this imposes” on third parties. But the standard for RFRA accommodations is not, “you must grant the accommodation no matter what burden or inconvenience this imposes.” Accommodations must pass the government compelling interest threshold. If they do, they seem very much not to be violations of the Establishment Clause rule laid out in Thornton. In fact, many of the arguments about third party harms that T&S make have already been briefed by mandate advocates as part of the RFRA calculus. So they haven’t been ignored. They just haven’t been analyzed under the Thornton Establishment Clause framework, because Congress already saw to that in the statutes.

But let’s consider the Establishment Clause precedents on their own.

Read more

Posted on by Mark Movsesian

Symposium on State-Sponsored Religious Displays Now in Print

Just in time for the Christmas Wars, the Journal of Catholic Legal Studies has published papers from a symposium on state-sponsored religious displays that the Center co-sponsored with our our sister school, the Libera Universita Maria SS Assunta (LUMSA), in Rome last year. The papers compare the treatment of such displays in the United States and Europe. Contributors include Silvio Ferrari  of the University of Milan (“State-Supported Display of Religious Symbols In The Public Space”); Thomas Berg of the University of St. Thomas (“Can State-Sponsored Religious Symbols Promote Religious Liberty?”); Monica Lugato of LUMSA (“The ‘Margin of Appreciation’ and Freedom of Religion: Between Treaty Interpretation And Subsidiarity”); and Judge Diarmuid O’Scannlain of the US Court of Appeals (“Religious Symbols and the Law”). There’s also an introduction by me. You can download the articles here. 

Posted on by Marc O. DeGirolami

Stoner on the Disposition of the Common Law

James Stoner’s work on common law constitutionalism has been deeply influential on my own thinking about the interpretation of the religion clauses, as well as on more general questions of constitutional interpretation. My own approach in fact adopts something like Professor Stoner’s common law constitutional method (though its motivation for adopting that method is different than Stoner’s), distinguishing it from other common law constitutionalist methodologies (e.g., the approach of David Strauss). Here is an interesting post that Professor Stoner has just written on the disposition of the common law (in part it is a response to CLR Forum friend, John McGinnis). A longish bit:

To the authors of the Constitution, the Bill of Rights, and the Civil War Amendments, common law meant nothing like “judge-made law,” and the use of the modern supposition to untether constitutional law from the Constitution is unwarranted. Moreover, the original understanding of common law—as the unwritten customary law of England, registered in decisions of the courts, and carried over to the American colonies as an inheritance and adjusted to their circumstances—seems to me essential to the interpretation of the Constitution itself, which includes common-law language and takes for granted that the judicial power it established would largely operate by common-law forms: following precedent, recording judicial opinions, drawing the bench from the bar, employing trial by jury, and adhering to due process in myriad other ways . . . .

Originalism and textualism, for example, derive from maxims you can find in Blackstone’s account of how to interpret statutes, and I think they make sense not as free-standing theories of interpretation but in the context of all Blackstone’s adages, including, for example, that one begin by discerning whether the text declares the common law in writing or remedies some mischief, that one interpret criminal statutes strictly and statutes against frauds liberally, and the like. True, constitutions are not exactly statutes, only similar to them: Like statutes, they are put in writing; unlike statutes, they are made by a constituent authority and cannot be easily changed. Are the powers of government granted in constitutions to be interpreted strictly or liberally? What about rights that are reserved?

These questions fell to judges to decide, reasoning according to “the nature and the reason of the thing,” to borrow Hamilton’s words in The Federalist, and this was something common-law judges were trained to do, bound on the one hand by “strict rules and precedents” (Hamilton’s words again) and accustomed on the other to settling new cases through reasoning by analogy, as Edward Levi nicely explains in his Introduction to Legal Reasoning (Chicago, 1949). Understanding the common-law meaning of “judicial power” in the Constitution resolves what would otherwise be the paradox of judicial review, an unwritten power to enforce a written Constitution. And it makes perfect sense of constitutional passages like the Due Process Clause or the reference to “other rights” in the Ninth Amendment. These are not blank checks given to judges, but indication that there is a rich texture of established though unwritten law that they are charged to remember. Hamilton, again, indicates as much when he writes approvingly of the ability of judges “to mitigat[e] the severity and confin[e] the operation” of “unjust and partial laws.” . . . .

Leaving the Constitution to be interpreted in court by judges trained in common law meant it was in the hands of men who habitually looked to find the law applicable to the case before them, not who set out to replace it. When called to interpret the Constitution, the presumption in favor of the authority of the text and its original intent might be heightened, given its sovereign source, but precisely because the Constitution was meant to endure, its meaning had to be adapted to novel circumstances. One can’t avoid asking what comprises a constitutional search in an age of electronic communications, or what is “commerce with foreign nations, and among the states” when the manufacturing process from design through production is fully globalized and you can complete the purchase of almost any item from across the ocean at any time of day without leaving your home.

By focusing on the individual case, allowing the appeal to reason, settling the meaning of law to make property secure and the application of government coercion predictable, and including rules and maxims that leave individuals free to take initiative while holding them responsible for the consequences of their deeds, the common law was held by its advocates to be a great friend and promoter of human liberty. It had its critics, too, who complained that unwritten law was obscure, too much the preserve of the lawyers’ guild, and its favor for private property and individual liberty were inappropriate in a collectivist age. The abandonment of common-law rules and perhaps above all of the common-law spirit by many in the guild of lawyers over the course of the twentieth century no doubt contributed to the eclipse of common law—Professor McGinnis has valuable insights on this score—but probably more fundamental was the culture’s growing historicism: its skepticism toward any permanent standards of right and wrong, its consequent indifference toward tradition as a repository of wisdom, its expectation, not to say, encouragement of intractable partisan division given the supposition that questions of value cannot be rationally settled. Actually, common law really claimed to be common, to articulate a social consensus, more than it claimed to be unchanging; jury verdicts at common law have to be unanimous, and judges on the losing side of cases decisively settled typically feel constrained thereafter to accept the precedent and direct their argument to new issues, where they hope to limit a bad precedent’s future reach.

Posted on by Marc O. DeGirolami

“For the Common Convenience of the Learned”

Here’s news of an excellent joint project of the Biblioteca Apostolica Vaticana Gutenberg Bible(founded in 1451 by Pope Nicholas V) and Oxford University’s Bodleian Library (which opened in 1602)  to put online a number of very ancient and rare religious and other texts housed in their respective libraries. These include the Bodleian’s 1455 Gutenberg Bible as well as the oldest Hebrew codex in existence and a copy of the Bible written in Italy circa 1100 (housed in the Vatican library).

The website where some of these documents may already be viewed is here.