Posted on by Marc O. DeGirolami · 2 Comments

Why Not Repeal RFRA?

The media coverage of the now-vetoed Arizona bill amending the existing Arizona RFRA has been abominable. The claim that the bill would have permitted private businesses to refuse to serve gay people is simply untrue; the bill did not say that. The bill was short–just two pages long. Anybody could have read it quickly to see what it provided: expansion of state RFRA coverage for businesses and an amendment that private actions are now covered (as in, what the government cannot do directly, it cannot do indirectly by giving private parties a cause of action). The bill would have done nothing to change the basic burden-shifting framework of the Arizona RFRA–the same framework used by the federal RFRA–in which a judge is charged to determine whether there is a substantial burden counterbalanced by a compelling government interest achieved by the least restrictive means.

Perhaps that is the point, though. Anger against this bill is entirely misdirected. If one truly believes that laws which provide for the possibility of religious exemptions against generally applicable laws are anathema, the obvious course is to repeal the state and federal RFRAs themselves. Several prominent law and religion scholars have been advocating vigorously for just that result for some time. It appears that public sentiment is turning in their direction.

Posted on by JCPW

Around the Web This Week

Some interesting law & religion stories from around the web this week:

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Fabre & Lazar (eds.), “The Morality of Defensive War”

9780199682836_450This month, Oxford University Press published The Morality of Defensive War edited by Cécile Fabre (Lincoln College, Oxford) and Seth Lazar (Australian National University). The publisher’s description follows.

Most of us take it for granted that wars in defence of one’s political community are the quintessential just wars. Indeed, while in recent years philosophers have subjected all of our other assumptions about just war theory to radical revision, this principle has emerged largely unscathed.

But what underpins the morality of defensive war? In this book, leading moral and political philosophers both show the profoundly challenging nature of that question, and advance novel answers to it. The first part exposes the deep tension between the individualist foundations of much contemporary philosophy and plausible conclusions about the morality of defensive war. The second part offers an individualist attempt to resolve that tension, while the third seeks to justify defensive war by appeal to more collectivist values.

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Lefebvre & Beaman (eds.), “Religion in the Public Sphere”

9781442626300This April, the University of Toronto Press will publish Religion in the Public Sphere: Canadian Case Studies edited by Solange Lefebvre (Université de Montréal) and Lori G. Beaman (University of Ottawa). The publisher’s description follows.

The place of religion in the public realm is the subject of frequent and lively debate in the media, among academics and policymakers, and within communities. With this edited collection, Solange Lefebvre and Lori G. Beaman bring together a series of case studies of religious groups and practices from all across Canada that re-examine and question the classic distinction between the public and private spheres.

Religion in the Public Sphere explores the public image of religious groups, legal issues relating to “reasonable accommodations,” and the role of religion in public services and institutions like health care and education. Offering a wide range of contributions from religious studies, political science, theology, and law, Religion in the Public Sphere presents emerging new models to explain contemporary relations between religion, civil society, the private sector, family, and the state.

Posted on by Marc O. DeGirolami

Announcing the Libertas Project

I’m delighted to post the following announcement about the “Libertas Project,” two workshops of which will occur this summer at Villanova Law School under the able direction of Associate Dean Michael Moreland. I’ll be participating as a moderator in the religious liberty workshop together with my friend, Zak Calo. See below for the call for applications to participate.

The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2014 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation.

To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants.

The dates for the 2014 summer workshops are July 7-9 on economic freedom and July 14-16 on religious freedom. Participants in the workshops will each receive an honorarium of $1500.

The workshop moderators will be Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom, and Marc DeGirolami (St. John’s University) and Zachary Calo (Valparaiso University) on religious freedom.

The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation.

Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are also available.

To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law (Moreland@law.villanova.edu) by April 30, 2014.

PROJECT DESCRIPTION

The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom.

Read more

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Grubiak, “White Elephants on Campus: The Decline of the University Chapel in America, 1920–1960”

Next month, Notre Dame will publish White Elephants on Campus: The dddDecline of the University Chapel in America, 1920–1960, by Margaret M. Grubiak (Villanova University). The publisher’s description follows.

 In White Elephants on Campus: The Decline of the University Chapel in America, 1920–1960, Margaret M. Grubiak persuasively argues, through a careful selection of case studies, that the evolution of the architecture of new churches and chapels built on campuses reveals the shifting and declining role of religion within the mission of the modern American university. According to Grubiak, during the first half of the twentieth century, university leaders tended to view architecture as a means of retaining religion within an increasingly scientific and secular university. Initially, the construction of large-scale chapels was meant to advertise religion’s continued importance to the university mission. Lavish neo-Gothic chapels at historically Protestant schools, although counter to traditional Protestant imagery, were justified as an appeal to students’ emotions. New cathedral-style libraries and classroom buildings also re-imagined a place for religion on campuses no longer tied to their founding religious denominations.

Despite such attempts to reframe religion for the modern university, Grubiak shows that by the 1960s the architectural styles of new religious buildings had changed markedly. Postwar university chapels projected a less distinct image, with their small scale and intentionally nondenominational focus. By the mid-twentieth century, the prewar chapels had become “white elephants.” They are beautiful, monumental buildings that nevertheless stand outside the central concerns of the modern American university. Religious campus architecture had lost its value in an era where religion no longer played a central role in the formation and education of the American student.

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Andes, “The Vatican and Catholic Activism in Mexico and Chile: The Politics of Transnational Catholicism, 1920–1940”

This month, Oxford published The Vatican and Catholic Activism in mmmMexico and Chile: The Politics of Transnational Catholicism, 1920-1940, by Stephen J. C. Andes (Louisiana State University). The publisher’s description follows.

As in Europe, secular nation building in Latin America challenged the traditional authority of the Roman Catholic Church in the early twentieth century. In response, Catholic social and political movements sought to contest state-led secularisation and provide an answer to the ‘social question’, the complex set of problems associated with urbanisation, industrialisation, and poverty. As Catholics mobilised against the secular threat, they also struggled with each other to define the proper role of the Church in the public sphere. This study utilizes recently opened files at the Vatican pertaining to Mexico’s post-revolutionary Church-state conflict known as the Cristero Rebellion (1926-1929). However, looking beyond Mexico’s exceptional case, the work employs a transnational framework, enabling a better understanding of the supranational relationship between Latin American Catholic activists and the Vatican. To capture this world historical context, Andes compares Mexico to Chile’s own experience of religious conflict. Unlike past scholarship, which has focused almost exclusively on local conditions, Andes seeks to answer how diverse national visions of Catholicism responded to papal attempts to centralize its authority and universalize Church practices worldwide.

The Politics of Transnational Catholicism applies research on the interwar papacy, which is almost exclusively European in outlook, to a Latin American context. The national cases presented illuminate how Catholicism shaped public life in Latin America as the Vatican sought to define Catholic participation in Mexican and Chilean national politics. It reveals that Catholic activism directly influenced the development of new political movements such as Christian Democracy, which remained central to political life in the region for the remainder of the twentieth century.

Posted on by Marc O. DeGirolami

New Paper on the Distance Between Constitutional Theory and Constitutional Judging

Former Forum guest Kevin Walsh and I have a new paper that examines the relationship of and the separation between constitutional theory and constitutional adjudication. The article is called, Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory. There is a law and religion connection as well, as part of our discussion concerns cases decided by these judges involving perceived official favoritism of Christianity. Comments are most welcome, and I’ll try to have a bit more about the paper in the coming days and weeks. Here’s the abstract.

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?

This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.

Posted on by Mark Movsesian

“We are not against modernity, but we are against westernization”

Earlier this month, Penguin Books India agreed to recall and destroy copies of a book by American scholar Wendy Doniger, The Hindus: An Alternative History. Penguin did so in order to settle a four-year old lawsuit by a Hindu activist group, Shiksha Bashao Andolan, alleging that publication violated Indian law, which forbids insulting the religious beliefs of a class of citizens. In a statement, Penguin maintained that it had an obligation “to respect the laws of the land in which it operates, however intolerant and restrictive those laws may be.” Doniger concurred, stating that Indian law is “the true villain of this piece.”

The main complaint seems to be that Doniger’s book presents a hypersexualized, distorted version of Hinduism. Here’s Shiksha Bashao Andolan’s president, Dinanath Batra, in a Time magazine interview, describing what his group finds objectionable:

Doniger says [in the book] that when Sanskrit scriptures were written, Indian society favored open sexuality. The jacket of her book shows Lord Krishna sitting on the buttocks of nude women. She equates the shivlingam, worshipped all over India by millions, with sex and calls it an erect penis. She calls Gandhiji strange and says he used to sleep with young girls.

What I find most interesting in this controversy is the incomprehension each side has for the other. The activists, with Indian law on their side, think they are striking a blow for cultural and religious freedom. They are standing up to tactless outsiders who mock sacred things. Most Western observers, by contrast, are simultaneously repulsed and amused at the notion that people would find Doniger’s book off-putting and actually try to stop its publication. The activists must be rubes and obscurantists. The condescension comes through very clearly in the questions Time put to Batra, including the last one: “Don’t you worry that your objections might seem outdated in today’s modern world?” Batra’s answer is revealing, too: “We are not against modernity, but we are against westernization.”

Once again, we see the conflict between the values of WEIRD cultures–Western, Educated, Industrialized, Rich, and Democratic–and those of more traditional societies. WEIRD cultures stress individual expression and fulfillment; traditional cultures value authority, community, and sacredness. To someone from a WEIRD perspective, it’s impossible to believe that serious people could be morally outraged by Doniger’s book, or think destroying the book a proper response. By contrast, people embedded in a traditional Hindu culture find Doniger’s interpretation disgraceful and foreign–an insult that should not be borne.

Of course, cultures aren’t uniform. Some Indians have WEIRD values; some Westerners are traditionalists. Some well-known Indian writers objected to Batra’s lawsuit; here in the US, the Hindu American Foundation issued a statement basically endorsing Penguin’s decision. But, on the whole, the WEIRD/Traditionalist divide is a useful way to understand our world. It explains many current controversies, like blasphemy prosecutions in Pakistan, proposals to ban circumcision in Scandinavia, anti-homosexuality laws in Africa, and the dispute over Doniger’s book.

As I’ve written before, it seems to me that three possibilities exist. First, WEIRD values will come to dominate worldwide. WEIRD culture has many benefits, and America projects it around the world relentlessly, through movies, advertising, the Internet, and so on. Second, Western culture will become less WEIRD. This could happen, too, especially if large numbers of people from traditional societies immigrate to the West. Third, and most likely, WEIRD and non-WEIRD cultures will continue to face off against one another for the foreseeable future, with inevitable clashes and occasional compromises. Buckle your seat belts.

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Al-Azmeh, “The Emergence of Islam in Late Antiquity”

Next month, Cambridge University Press will publish The Emergence of Islam in Late Antiquity: Allah and his People by Aziz Al-Azmeh (Central European University, Budapest). The publisher’s description follows.The Emergence of Islam in Late Antiquity

Based on epigraphic and other material evidence as well as more traditional literary sources and critical review of the extensive relevant scholarship, this book presents a comprehensive and innovative reconstruction of the rise of Islam as a religion and imperial polity. It reassesses the development of the imperial monotheism of the New Rome, and considers the history of the Arabs as an integral part of Late Antiquity, including Arab ethnogenesis and the emergence of what was to become Muslim monotheism, comparable with the emergence of other monotheisms from polytheistic systems. Topics discussed include the emergence and development of the Muhammadan polity and its new cultic deity and associated ritual, the constitution of the Muslim canon, and the development of early Islam as an imperial religion. Intended principally for scholars of Late Antiquity, Islamic studies and the history of religions, the book opens up many novel directions for future research.