Posted on by Marc O. DeGirolami

Posner on the New 19th Century Regime

Religious freedom is generally considered one of the fundamental “international human rights” that international institutions are enlisted to protect and propound. This is much more Mark’s area of specialty than mine, but lately I’ve been thinking about the state of play in the international community with respect to religious freedom. Mark’s post below on the misperception of Vladimir Putin’s aims and the broader lack of understanding as between WEIRD cultures and those many others with different views is an important reminder that it would be a mistake to assume congruence or convergence in the world at large with respect to those values that we, for various culturally specific reasons, deem fundamental.

It was in the light of these musings that I found Eric Posner’s new post at Foreign Policy–Sorry, America, the New World Order is Dead–a bracing and insightful read. A bit:

The second pillar of the post-Cold War order was recognition of human rights. Under international human rights law, all governments must respect the rights of their citizens. While the number, nature, and scope of those rights are contested — and while many countries that signed onto human rights treaties argued that rights must be interpreted in light of their own religious, traditional, or practical commitments — the new liberal order envisioned a world that abided by the basic terms of liberal democracy. The Soviet Union’s collapse seemed to provide spectacular vindication for this view and to portend its universal acceptance.

Yet the human rights regime has failed as well. It has become increasingly clear that many countries simply disregard their human rights commitments. Russia, for example, has moved toward authoritarianism despite its ratification of universal human rights treaties and its accession to the relatively robust European Convention on Human Rights, which empowers people to bring cases against their governments. China has certainly not liberalized. Most developing countries lack the capacity to implement their human rights commitments, even when their governments and publics support them. Even Western countries violated the spirit of these treaties by taking harsh measures against al Qaeda in the wake of the 9/11 terrorist attacks….

Back in the 1990s, at the height of optimism about international law, academics believed that they had to answer a puzzle. The four pillars of the new international legal system self-evidently embodied a liberal worldview that countries like China and Russia did not subscribe to and that indeed most countries outside the West had traditionally rejected. So what would compel these countries to obey international law? An enormous number of theories were produced, with their accompanying buzzwords: Countries complied with international law because their leaders had internalized the law. Or because they were bound by cooperative networks of judges and bureaucrats from different countries. Or because domestic and international NGOs put pressure on violators. Or because countries had become interdependent. Or simply because it was fair. At the heart of all these theories was the assumption that all countries complied with international law more or less equally.

The most obvious explanation for legal compliance was all but ignored. Countries obeyed international law in the post-Cold War period because the United States and, to a lesser extent, Europe forced them to do so. Part of the explanation, of course, was that with the Soviet Union’s collapse, the liberal order gained significant prestige. But much of the explanation lies in the fact that countries feared that if they did not play by the rules set by the West, they would be deprived of aid, investment, technical cooperation, and opportunities to trade — and, in extreme cases, might be threatened with sanctions and military force.

If this explanation wasn’t clear in the 1990s, it is clear now. As the United States loses power, it has become obvious that no one else will guarantee the peaceful settlement of disputes, enforce human rights, or ensure that international criminals are tried and convicted….

Put another way, the liberal order that was born with the Soviet Union’s collapse rested on a fiction: that all nations were equal and submitted to the same rules because they reflected universal human values. In reality, of course, the rules were Western rules, and they were enforced largely by the United States, which was no one’s equal. Today, the fiction has been exposed, and the world order looks increasingly like the one that reigned during the 19th century. In this order, a small group of “great powers” sets the rules for their relations with each other and interacts under conditions of rough equality. Smaller countries survive by establishing client relationships with the great powers. The great powers compete with each other over these client relationships, but otherwise try to maintain conditions of stability that allow for trade and other forms of cooperation. The major challenge for the great powers is to ensure that competition for clients does not erupt into full-scale war.

Posted on by Marc O. DeGirolami

The Traditional Frame: Justice Kagan’s Dissent and Justice Alito’s Concurrence in Town of Greece

In this post, I’ll offer a few comments on Justice Kagan’s principal dissent in Town of Greece v. Galloway, which was joined by Justices Breyer, Sotomayor, and Ginsburg (Justice Breyer also dissented separately). I’ll also briefly consider Justice Alito’s concurrence, which takes on some of the points in the main dissent. I should add that in these posts I am only describing what I take to be notable features of these decisions. I am not intending to evaluate them on the merits, with one small exception at the end of this post.

The most unexpected feature of the dissent is that it accepts the traditional frame propounded by the majority. The dissent explicitly repudiates strict separationism: “I do not contend that principle [of religious equality] translates here to a bright separationist line. To the contrary, I agree with the Court’s decision in Marsh v. Chambers upholding the Nebraska legislature’s tradition of beginning each session with a chaplain’s prayer.” Justice Kagan makes a point later of saying that she thinks Marsh was correctly decided. Indeed, not a single justice of this Court accepted the Brennan/Marshall position in Marsh.

That’s remarkable, inasmuch as Marsh is frequently described in rather unflattering terms by many of my esteemed colleagues: outlier, carve-out, aberration, inconsistent with the doctrine, unprincipled, a vestige of a bygone age–these are generally representative of the legal academy’s dim view of Marsh. And, indeed, it is true that Marsh seems to stand alone against the coursing flow of modern establishment doctrine. Here was a chance for those members of the Court that felt something like this way about Marsh, or worse, to say so–to take a stand in favor of lopping off this traditionary annoyance without very much hurt at all to the primary stream of contemporary establishment doctrine. Yet nobody did.

Instead, the methodological path of the dissent is to accept the traditional frame and then to argue that the facts in this case do not fit within a correct interpretation or reading of that tradition: “And so I agree with the majority that the issue here is “whether the prayer practice in the Town of Greece fits within the tradition long followed in Congress and the state legislatures.” Where I depart from the majority is in my reply to that question….[T]he prayer in Greece departs from the legislative tradition that the majority takes as its benchmark.”

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Posted on by Mark Movsesian

Yesterday’s Decision in Town of Greece

Another Establishment Clause case, another 5-4 decision. Another fact-specific ruling in which Justice Kennedy provided the deciding vote. Another separate opinion by Justice Thomas arguing that it makes no sense to apply the Establishment Clause against the States in the first place. More high-blown rhetoric about What American Means and why the Court’s decision honors our traditions or betrays them. Just another day at the office for the Justices.

It’s possible to see yesterday’s decision in Town of Greece, the legislative prayer case, as just one more, muddy Establishment Clause case that doesn’t settle much of anything. Justice Kennedy’s opinion for the Court doesn’t announce a hard-and-fast rule. Indeed, he wrote, “it is not necessary to define the precise boundary of the Establishment Clause where history shows that [a] specific practice is permitted.” Legislative prayer has a very long history in America, dating back at least to the Framing. The Town of Greece’s practice of having prayer before the start of  town board meetings fell within that tradition. The Justices adduced several facts to support this: the town had made reasonable efforts to be inclusive, selecting clergy at random from a community guide; prayers took place before the part of the meeting devoted to legislative business; people could come and go as they pleased; there was no indication that the town had deliberately discriminated against minority religions. In a helpful concurrence, Justice Alito pointed out that the difference between the Court’s opinion and Justice Kagan’s dissent turned on disagreements about the proper interpretation of one or two facts.

All this is true. We may look back at Town of Greece as a narrow holding without great consequence. Yet something tells me this decision could turn out to be quite significant. Let me make two quick observations about what I see as important themes in the case: the rejection of nonsectarianism and the embrace of localism.

First, the Court stated very clearly that neutrality does not require that legislative prayer be nonsectarian. It is constitutionally permissible, the Court held, for a town to invite only Christian clergy–or just about–to offer prayers, as long as the town does not intentionally discriminate against minority religions and as long as the prayers do not create a pattern of proselytizing or disparagement of other religions.

This suggests an important shift. A major theme (among others) in the Court’s recent public religious display cases–cases involving creches and the like–is that government displays must be nonsectarian. Religious displays that suggest a preference for one religion over another are unconstitutional. In the context of legislative prayer, however, the Court now seems to be moving away from that principle. Of course, the Court may continue to insist on nonsectarianism outside the legislative prayer context; future cases will tell. But the Court’s willingness to allow sectarian religious expression in this case is a development worth watching.

Second, the Court’s opinion gives a great deal of deference to local governments. The town’s employees could have taken additional steps to make sure the clergy they invited were not so overwhelmingly Christian. Instead of relying on a community guide listing places of worship within the town–all of which were Christian–they could have expanded their search to the surrounding area. For example, many Jewish residents of Greece worshiped at synagogues across the town line in Rochester. If the employees had done a little more research, they would have known this, and they could easily have asked the rabbis from those synagogues to participate.

The Court was not willing to require any more from the town, however. In fact, in his concurrence, Justice Alito argued that it wouldn’t be fair to require more, since “the informal, imprecise way in which the town lined up guest chaplains is typical of the way in which things are done in small and medium-sized units of local government.” To require more could dissuade “local officials, puzzled by our often puzzling Establishment Clause jurisprudence and terrified of the legal fees that may result from a lawsuit claiming a constitutional violation,” from allowing legislative prayer at all.

The deference the Court showed the Town of Greece is significant, I believe. Steve Smith has written about the desirability of local solutions in Establishment Clause cases. The Court seems to be endorsing localism in this case. Towns are not required to have legislative prayer, of course. But those many towns that do wish to start their meetings with prayer–even exclusively Christian prayer–will now be able to do so, as long as they show that they made reasonable efforts to be inclusive. And if the only places of worship in town are Christian, then it’s reasonable for the town to have only Christian prayers. That’s the upshot of the Court’s decision.

In my law and religion seminar, I tell students that most of our fights about the Establishment Clause boil down to this: What can a religious minority reasonably require of the majority? Or, put differently, how far must the majority go to accommodate the sensibilities of the minority? Here, the Court seems to be saying, if a town is overwhelmingly Christian, non-Christians cannot legitimately expect that legislative prayers will be anything but overwhelmingly Christian. To insist on something else would be unreasonable. What about those few citizens who do object to the repeated recitation of Christian prayer at town meetings, who feel genuinely offended? What word does the Court have for them? Well, there are other towns.

Posted on by Mark Movsesian

Annual Year-End Message

This has been an exciting year for us here at the Center for Law and Religion. We hosted an innovative new seminar with Villanova Law School, the Joint Colloquium in Law and Religion. The American Bar Association Journal named the Center for Law and Religion Forum one of the top 100 law blogs. Marc’s book, The Tragedy of Religious Freedom, was released by Harvard University Press. And Marc and I presented papers at workshops in the United States and abroad.

Our annual report for 2013-2014 is available here. Please take a look. Thanks to our friends for their continuing support, and please let us know if you have any suggestions for future activities.