Posted on by Mark Movsesian

Movsesian on the Hobby Lobby Case

Cornerstone has published a short essay of mine on whether a corporation like Hobby Lobby qualifies as a person for purposes of RFRA. Relying on a comment from Chief Justice John Roberts at oral argument, I suggest that the Court may draw a distinction, for RFRA purposes, between large, publicly-held corporations and small, privately-held corporations like Hobby Lobby itself:

In truth, there is something very odd in the notion that a large, publicly-traded corporation with thousands of institutional shareholders around the world—Exxon-Mobil, for example—has religious scruples that guide its conduct. (Most Exxon-Mobil shareholders, I think, would be deeply surprised.) Large, publicly-traded corporations exist principally to make profits for the shareholders, who remain passive with respect to the corporation’s day-to-day operations. Religion is the farthest thing from their minds.

Moreover, if such corporations could exercise a religion, chaos could result. How would we determine when a corporation has a belief, Justice Sotomayor asked? Which of the thousands of shareholders would be entitled to raise their religious scruples? Would the majority of shareholders—51%—decide the matter for everyone else? What about the minority shareholders who object?

On the other hand, it isn’t strange to think that some for-profit corporations might exercise religion. As law professors Alan Meese and Nathan Oman argue in a recent essay in the Harvard Law Review, most American corporations are small, private firms with a only a handful of shareholders. In such corporations, the shareholders take great interest in day-to-day operations and may run their businesses with religious convictions in mind.

You can read my essay here.

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“Orthodox Christianity and Nationalism in Nineteenth-Century Southeastern Europe” (Leustean, ed.)

This July, Fordham University Press will publish Orthodox Christianity and Nationalism in Nineteenth-Century Southeastern Europe, edited by Lucian N. Orthodox ChristianityLeustean (Aston University).  The publisher’s description follows.

Nation-building processes in the Orthodox commonwealth brought together political institutions and religious communities in their shared aims of achieving national sovereignty. Chronicling how the churches of Greece, Romania, Bulgaria, and Serbia acquired independence from the Patriarchate of Constantinople in the wake of the Ottoman Empire’s decline, Orthodox Christianity and Nationalism in Nineteenth-Century Southeastern Europe examines the role of Orthodox churches in the construction of national identities.

Drawing on archival material available after the fall of communism in southeastern Europe and Russia, as well as material published in Greek, Serbian, Bulgarian, Romanian, and Russian, Orthodox Christianity and Nationalism in Nineteenth-Century Southeastern Europe analyzes the challenges posed by nationalism to the Ecumenical Patriarchate and the ways in which Orthodox churches engaged in the nationalist ideology.

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Bramadat & Dawson (eds.), “Religious Radicalization and Securitization in Canada and Beyond”

In August, University of Toronto Press will publish Religious Radicalization and Securitization in Canada and Beyond, edited by Paul Bramadat (University of Victoria) and Lorne Dawson (University of Waterloo). The publisher’s description follows.Religious Radicalization and Securitization in Canada and Beyond:

After the terrorist attacks of 9/11, those in
London and Madrid, and the arrest of the “Toronto 18,” Canadians have changed how they think about terrorism and security. As governments respond to the potential threat of homegrown radicalism, many observers have become concerned about the impact of those security measures on the minority groups whose lives are “securitized.”

In Religious Radicalization and Securitization in Canada and Beyond, Paul Bramadat and Lorne Dawson bring together contributors from a wide range of academic disciplines to examine the challenges created by both religious radicalism and the state’s and society’s response to it. This collection takes a critical look at what is known about religious radicalization, how minorities are affected by radicalization from within and securitization from without, and how the public, media, and government are attempting to cope with the dangers of both radicalization and securitization.

Religious Radicalization and Securitization in Canada and Beyond is an ideal guide to the ongoing debates on how best to respond to radicalization without sacrificing the commitments to multiculturalism and social justice that many Canadians hold dear.

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Bose, “Recasting the Region: Language, Culture, and Islam in Colonial Bengal”

In August, Oxford University Press will publish Recasting the Region: Language, Culture, and Islam in Colonial Bengal by Neilesh Bose (University of North Texas). The publisher’s description follows.Cover for<br /><br /><br /> Recasting the Region<br /><br /><br />

Recasting the Region studies the trajectories of Muslim Bengali politics and examines the literary and cultural history of Bengali Muslims from the early twentieth century until the 1952 Language Movement. It argues that Muslim political mobilization in late colonial Bengal did not emanate from north Indian calls for a separatist ‘Muslim’ state of Pakistan, but rather emerged out of a sustained engagement with local Bengali intellectual and literary traditions.

In six chapters, the book features meticulous research on topics like the pursuit of folklore, literary modernism, and intellectual movements in both Dhaka and Kolkata in the late colonial period. Examining language literary texts, the social histories of newspaper and magazine offices, and the writings of Bengali Muslim politicians and intellectuals, the book delves into the meaning of nationalism and decolonization for the Bengali Muslims.

Focusing on the cultural history of the largest Muslim population of the colonial era, the Bengali Muslims, this work utilizes heretofore unexplored Bengali sources as well as offers a new interpretation of the emergence of the state of Pakistan.

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Baron, “The Orphan Scandal”

Next month, Stanford University Press will publish The Orphan Scandal: Christian Missionaries and the Rise of the Muslim Brotherhood by Beth Baron The Orphan Scandal(The Graduate Center, CUNY).  The publisher’s description follows.

On a sweltering June morning in 1933 a fifteen-year-old Muslim orphan girl refused to rise in a show of respect for her elders at her Christian missionary school in Port Said. Her intransigence led to a beating—and to the end of most foreign missions in Egypt—and contributed to the rise of Islamist organizations.

Turkiyya Hasan left the Swedish Salaam Mission with scratches on her legs and a suitcase of evidence of missionary misdeeds. Her story hit a nerve among Egyptians, and news of the beating quickly spread through the country. Suspicion of missionary schools, hospitals, and homes increased, and a vehement anti-missionary movement swept the country. That missionaries had won few converts was immaterial to Egyptian observers: stories such as Turkiyya’s showed that the threat to Muslims and Islam was real. This is a great story of unintended consequences: Christian missionaries came to Egypt to convert and provide social services for children. Their actions ultimately inspired the development of the Muslim Brotherhood and similar Islamist groups.

In The Orphan Scandal, Beth Baron provides a new lens through which to view the rise of Islamic groups in Egypt. This fresh perspective offers a starting point to uncover hidden links between Islamic activists and a broad cadre of Protestant evangelicals. Exploring the historical aims of the Christian missions and the early efforts of the Muslim Brotherhood, Baron shows how the Muslim Brotherhood and like-minded Islamist associations developed alongside and in reaction to the influx of missionaries. Patterning their organization and social welfare projects on the early success of the Christian missions, the Brotherhood launched their own efforts to “save” children and provide for the orphaned, abandoned, and poor. In battling for Egypt’s children, Islamic activists created a network of social welfare institutions and a template for social action across the country—the effects of which, we now know, would only gain power and influence across the country in the decades to come.

Posted on by Marc O. DeGirolami

Was Madison Right? Shiffrin on DeGirolami on Roy

The eminent First Amendment scholar (and my friend) Steve Shiffrin has a smart post disagreeing with my own criticisms of Olivier Roy’s column a few days ago concerning the European political right and its nominal association, but substantive dissociation, with the major Christian churches of Europe. Actually there is not much to disagree with in Steve’s post: insofar as my post suggests that the problems that attend church state associations simply have no application in Europe, surely Steve is right to object. Here are just a few additional ruminations in response:

First, I take Steve’s post to be in some measure a friendly amendment to my own. The  principal point I wanted to make about Professor Roy’s column is that to the extent that church-state association or connection is a problem in Europe, that is nothing new and has little to do with today’s particular political trade winds. So that while the contemporary political right makes for a fat target, Professor Roy’s real objection is to the larger model of church-state relations that has predominated in Europe (for good and, as Madison had it, for ill) for the hundreds of years that preceded the last handful. Steve’s post is, I think, consistent with this criticism.

Second, Steve’s post is also a reminder to me that the strength or vigor of a religious tradition is itself a contested concept. A highly Protestant or Evangelical view of religion’s core or essence will see weakness in associational or public institutional characteristics and strength in individual commitment and the purity of interior zeal (I note that Steve cites Stanley Hauerwas!). Here’s some of what I wrote a few months ago (in response to George Will) about the claim that separationism must always and necessarily strengthen religion, much of which seems applicable here too:

The claim is that religion is so vibrant in America only because (or uniquely because) it is so pure, so separate from public institutions. It’s an argument that Madison made famous in his “Memorial and Remonstrance” and that Justice Souter has made in his religion clause jurisprudence (see his dissent in Zelman v. Simmons-Harris)…. It reflects a distinctively evangelical ethic that one sees in full blossom in the writing of Roger Williams (as well as, before him, John Milton), for whom religion could never quite be pure enough–an ethic that hyper-emphasizes the unvarnished, utterly and uncomplicatedly sincere credos of what William James much later would call the gloomily intense “twice-born.”

Notice also the individualistic current on which the claim [of religious strength’s source in separationism] rides. It isn’t just that the state is “likely to get it wrong”; that is an argument for disestablishment…. The deeper undercurrent of the separationist claim is that individuals, not entities, are the ones “likely to get it right”–that true-blue, healthfully zesty religiosity depends on a kind of inward exercise of discernment borne from fervent conviction that is always in peril of depurification by associational adulteration. It is a claim made primarily by those whose experience of “bad” religion was group religion– and traditional group religion at that. And the claim retains at least part of its power because of its still vital anti-clerical, anti-institutional foundations….

But is the claim true? In part, perhaps, but only with substantial qualifications of a kind that make it problematic. There is nothing inevitable….about religious strength that follows ineluctably from its complete separation from government. There is no iron law that says: the more we separate religion from government, the stronger religion must become. Such a claim would run headlong into many counterexamples, contemporary and ancient. The ancient examples make the claim appear patently absurd. One wants to ask: “Do you actually mean to tell me that no society which has not observed strict separation between church and state has had a flourishing religious life? So there was no flourishing religious life in any of countless pre-modern societies that existed before Milton or Locke or Roger Williams or whoever got busy?” And to take only one modern case, religion and the state have been strictly separated for some time in laic France and in other extremely secular European countries, and the strength of religious life in those countries is by all accounts much weaker than it was in prior historical periods when there was greater proximity and interpenetration of church and state.

I suppose one might argue that religious weakness in a country like France is the result of the long, noxious association of church and state that preceded separation, and that we just need some more time before a newly flourishing religiosity emerges. That seems highly dubious. Church and state have been separated in France for over a century (since 1905). How much longer is it supposed to take for this delicate flower to bloom in the desert? In fact, it seems much more likely that strict separation of church and state has either contributed to the weakening of religious life in a country like France or (even more plausibly) that it has occurred at a time when religiosity was weakening for reasons of its own–reasons unrelated to, or at least independent of, strict separationism.

If some notion of separation did in fact at one time contribute to a stronger collective religious life in the United States, the reason had little to do with any necessary connection in this respect, and more to do with the unique historical and cultural circumstances of the United States–circumstances in which the Puritan evangelicalism represented by Roger Williams’s particular style of fire-and-brimstone, garden-and-the-wilderness religiosity was much more powerful in the United States than it is today. Church-state separation may be a strategy that makes religion seem stronger, provided that one is beginning from the evangelical paradigm of the twice-born soul. But it is a different matter if religion is commonly perceived in wildly different terms and expected to perform entirely different functions.

I take all of these points to be consistent with Steve’s final paragraph, in which he writes: “The factors leading to religiosity or its decline are complicated and controversial, and the decline in European religiosity is palpable. I would not contend that the close ties between religion and the state are the only explanation. After all, those ties persisted for a long time without a decline as DeGirolami observes. I would add that those ties can be helpful.” Quite so.

Finally, a friend wrote to me indicating that he was dubious that “separationist” was a proper description of Professor Roy’s own views. That’s an interesting observation as well. I made the association because separationism has a long and rich history in this country. It is a view that proceeds in part from the position that the mingling of church and state is a corrupting force for both and it maintains that the cultural and identitarian features of religion which can permeate the political sphere are not a positive thing for either religion or government. I found this latter theme to be very much emphasized in Professor Roy’s piece; indeed, I found it to be crucial to the claims he makes. But separationism is an American phenomenon. And it may be difficult to transplant the flora of particular, culturally contingent church state arrangements to exotic soils and expect them to blossom in quite the same ways.

Posted on by Marc O. DeGirolami

From the files of Secretary of Transportation S. Panza

Administrative law at its best.

No Tilting

Posted on by Mark Movsesian

Turner, “Thomas Aquinas: A Portrait”

Last month, Yale University Press released Thomas Aquinas: A Portrait, by 9780300205947Denys Turner (Yale). The publisher’s description follows:

Leaving so few traces of himself behind, Thomas Aquinas seems to defy the efforts of the biographer. Highly visible as a public teacher, preacher, and theologian, he nevertheless has remained nearly invisible as man and saint. What can be discovered about Thomas Aquinas as a whole? In this short, compelling portrait, Denys Turner clears away the haze of time and brings Thomas vividly to life for contemporary readers—those unfamiliar with the saint as well as those well acquainted with his teachings.

Building on the best biographical scholarship available today and reading the works of Thomas with piercing acuity, Turner seeks the point at which the man, the mind, and the soul of Thomas Aquinas intersect. Reflecting upon Thomas, a man of Christian Trinitarian faith yet one whose thought is grounded firmly in the body’s interaction with the material world, a thinker at once confident in the powers of human reason and a man of prayer, Turner provides a more detailed human portrait than ever before of one of the most influential philosophers and theologians in all of Western thought.

Posted on by Mark Movsesian

Mohr, “Buddhism, Unitarianism, and the Meiji Competition for Universality”

Next week, Harvard University Press releases Buddhism, Unitarianism, and the Meiji Competition for Universality, by Michael Mohr (University of Hawaii at Manoa). The publisher’s description follows:

In the late 1800s, as Japanese leaders mulled over the usefulness of religion in modernizing their country, they chose to invite Unitarian missionaries to Japan. This book spotlights one facet of debates sparked by the subsequent encounter between Unitarianism and Buddhism—an intersection that has been largely neglected in the scholarly literature. Focusing on the cascade of events triggered by the missionary presence of the American Unitarian Association on Japanese soil between 1887 and 1922, Michel Mohr’s study sheds new light on this formative time in Japanese religious and intellectual history.

Drawing on the wealth of information contained in correspondence sent and received by Unitarian missionaries in Japan, as well as periodicals, archival materials, and Japanese sources, Mohr shows how this missionary presence elicited unprecedented debates on “universality” and how the ambiguous idea of “universal truth” was utilized by missionaries to promote their own cultural and ethnocentric agendas. At the turn of the twentieth century this notion was appropriated and reformulated by Japanese intellectuals and religious leaders, often to suit new political and nationalistic ambitions.

Posted on by Marc O. DeGirolami

Olivier Roy on “The Closing of the Right’s Mind”

The distinguished sociologist of religion, Olivier Roy (author of a very fine book called Holy Ignorance), has an interesting op-ed in the New York Times today entitled, “The Closing of the Right’s Mind” (no citation to Alan Bloom?). The large point in the piece has to do with the secularization of certain political parties in Europe that were formerly linked to the Christian churches of Europe, principally the Catholic Church. Here’s the opening:

The longstanding link between the political right and various Christian churches is breaking down across Europe. This is largely because the right, like much of European society, has become more secular. Yet this hardly indicates progress: Animated by an anti-Islamic sentiment, the right’s position is endangering freedom of religion, as well as secularism and basic democratic traditions.

Up to the 1950s, the cultural values endorsed by the right throughout much of Europe were not so different from the traditional religious values of Catholics and Protestants. Homosexuality was criminalized in many countries. Children born out of wedlock had fewer rights than “legitimate” children. The law in most countries protected family values, censored some forms of pornography and condemned what the French call mauvaises moeurs (roughly, loose morals).

The changes brought on by the decades that followed–in which rights and values of sexual autonomy came to dominate the scene–were initially the purview of the political left but eventually, Professor Roy notes, came to be adopted by the political right as well. And that has resulted in the fracturing of connections between the political right and the traditional European churches, which largely do not subscribe to those values.

The “twist,” however, is that the political right has assumed the mantle of Christianity without claiming any of its values. It has dissociated itself from Christianity; it has secularized. But it has simultaneously maintained that Western Europe is Christian. It has done this not because it is truly Christian–“spiritually” Christian–but for political reasons, principally for the purpose of resisting a growing Islam in Europe.

The piece is very interesting, as I say, but what principally interested me is how American it sounds. The claim that religion’s true value is its “spiritual” essence, rather than any number of other values, can be found in American separationist writings dating to Roger Williams. It has deep roots in a kind of Protestantism and Evangelicalism typical of the American experience. I would not have thought that the European experience, in which the political importance of religion was always far more prominent, was the same. And the notion that the association of politics and religion exerts a corrupting influence on religion may be traced in a direct line from James Madison all the way to David Souter’s church-state dissents. But, again, I take it that has not been the European historical experience. Indeed, Professor Roy himself notes in the fragment quoted above a period in which the political right and the European churches were plausibly connected. But if the separationist corruption argument is right, then this period of association was no less corrupt than the current condition of dissociation.

Indeed, in the view of the separationist, the previous period was just as corrupting for politics and religion as the present. This may be the reason that Professor Roy raises the Lautsi case, concerning the display of crucifixes in Italian public school classrooms, a practice which preceded by many years the current difficulties faced by European political parties. The European Court of Human Rights upheld the practice based in part on the religious culture and heritage of Italy. Professor Roy criticizes the ruling on the ground that “to defend a distinct cultural Christian identity is to secularize Christianity itself.”

Again, historically that has not been true in Europe; Christendom coexisted comfortably with Christianity for centuries, well before “secularization” in its contemporary form ever came on the scene. And even if the statement were true, its truth would have little to do with the current conditions of the political right in Europe. That statement reflects a larger vision of the nature of the relationship between church and state–a distinctively American conception of that relationship principally (though not exclusively) embraced today by the political left in this country–strict separationism. Its influence in American law, however, has been steadily declining–there are no more church-state separationists on the Supreme Court. It is striking that separationism of this sort should have such contemporary purchase for the very different historical conditions of Western Europe.