This engaging book provides a comprehensive analysis of the issues in Burwell v. Hobby Lobby, the blockbuster legal challenge to the Affordable Care Act regulation that requires employer-sponsored health plans to provide contraceptive coverage. Through a series of debates between advocates on both sides of the case, the book tackles questions such as: whether for-profit corporations can assert religious-exercise claims under the First Amendment or federal law, whether businesses with religious objections to certain contraceptives should be exempt from coverage requirements, and what the consequences are of the Supreme Court’s June 2014 ruling in favor of Hobby Lobby. This case will be discussed for years to come, and the spirited debate between the authors provides fascinating and informative food for thought to scholars, students, and the public as they grapple with fundamental questions of corporate personhood, religious liberty, and health care policy.
Next month, Routledge Press will release “Windows onto Jewish Legal Culture: Fourteen Exploratory Essays” edited by Hanina Ben-Menahem (Hebrew University of Jerusalem), Arye Edrei (Tel Aviv University), and Neil S. Hecht (Boston University School of Law). The publisher’s description follows:
This book opens windows onto various aspects of Jewish legal culture. Rather than taking a structural approach, and attempting to circumscribe and define ‘every’ element of Jewish law, Windows onto Jewish Legal Culture takes a dynamic and holistic approach, describing diverse manifestations of Jewish legal culture, and its general mind-set, without seeking to fit them into a single structure.
Jewish legal culture spans two millennia, and evolved in geographic centers that were often very distant from one another both geographically and socio-culturally. It encompasses the Talmud and talmudic literature, the law codes, the rulings of rabbinical courts, the responsa literature, decisions taken by communal leaders, study of the law in talmudic academies, the local study hall, and the home. But Jewish legal culture reaches well beyond legal and quasi-legal institutions; it addresses, and is reflected in, every aspect of daily life, from meals and attire to interpersonal and communal relations. Windows onto Jewish Legal Culture gives the reader a taste of the tremendous weight of Jewish legal culture within Jewish life.
Among the facets of Jewish legal culture explored are two of its most salient distinguishing features, namely, toleration and even encouragement of controversy, and a preference for formalistic formulations. These features are widely misunderstood, and Jewish legal culture is often parodied as hair-splitting argument for the sake of argument. In explaining the epistemic imperatives that motivate Jewish legal culture, however, this book paints a very different picture. Situational constraints and empirical considerations are shown to provide vital input into legal determinations at every level, and the legal process is revealed to be attentive to context and sensitive to cultural concerns.
Recently, a group of more than 120 Islamic law scholars, many of them from very prominent institutions in the Sunni world like Cairo’s Al Azhar University, signed an Open Letter to the leader of the Islamic State (aka IS, or ISIL, or ISIS), Dr. Ibrahim Awwad Al-Badri (aka Abu Bakr Al-Baghdadi). The letter sharply criticizes IS, arguing that most of its actions violate Islamic law. Among other things, the letter rejects IS’s declaration of a caliphate; its conception of jihad; its persecution of non-Muslims, including Christians and Yazidis; its atrocities against women and children; its killing of journalists and aid workers; and its destruction of the shrines of the prophets.
The Open Letter is a welcome development and its authors and signatories deserve credit. Western observers often criticize Muslim leaders for their failure to speak out against Islamist groups like IS, since the silence of Muslim leaders can be taken as assent. The Open Letter makes clear that IS does not represent the totality of Islam and that its Salafist interpretations are not the last word in fiqh. It’s valuable to have a critique of IS from within the Islamic law tradition itself.
And yet, if one reads the Open Letter closely, one sees that its conclusions are not all that Western observers might hope. At the First Things site, Ayman Ibrahim explores some of the letter’s ambiguities. For example, the scholars criticize IS’s attempt to reestablish the caliphate, not because the idea itself is outmoded, but because IS is too small to assert worldwide Muslim rule. “There is agreement (ittifaq) among scholars that a caliphate is an obligation upon the Ummah,” the letter concedes. But a small group like IS cannot declare a caliphate all on its own. “In truth, the caliphate must emerge from a consensus of Muslim countries, organizations of Islamic scholars and Muslims across the globe.”
Well, what if IS ultimately does ultimately obtain support for its caliphate? Given the group’s meteoric success so far, perhaps IS feels optimistic and would like to give it a try. Would consensus make IS’s caliphate legitimate? And does the letter really mean to suggest that Muslims across the globe have a religious obligation to seek the restoration of some sort of caliphate? That’s certainly how it sounds. How about Muslims in the West?
Or take the treatment of Christians, a matter Ibrahim does not discuss. As most people know by now, IS has murdered or expelled Iraqi and Syrian Christians who refuse to agree to the terms of the dhimma, the classical Islamic law “agreement” in which Christians accept subordinate status andpay a poll tax called the jizya. The Open Letter sharply criticizes IS for these actions. “These Christians are not combatants against Islam or transgressors against it,” the letter protests, but “friends, neighbors and co-citizens. ”
This defense of Christians from leading Muslim scholars is very helpful. But then the letter makes clear the Islamic law basis for the scholars’ critique: “From the legal perspective of Shari’ah,” it says, the Christians of Iraq and Syria “all fall under ancient agreements that are around 1400 years old, and the rulings of jihad do not apply to them.” As non-combatants, these Christians are subject to a smaller jizya than IS has assessed . This smaller jizya is a substitute for the zakat Muslims pay and is to be distributed among the whole population, including Christians on occasion, as a form of charity.
In other words, the scholars’ objection is not that IS has subjected Iraqi and Syrian Christians to the dhimma and imposed on them the jizya. Rather, the objection is that these Christians are already subject to the dhimma and that IS has no authority to impose new terms, and that IS is collecting the wrong form of jizya. To put it mildly, this reasoning is not likely to reassure Christians and encourage them to return to their homes — assuming those homes still exist.
Some readers will think I am caviling. But I really don’t think so. In law, reasons matter. As I say, the Open Letter is a welcome contribution to the debate over IS and the signers, some of whom have no doubt taken personal risk, deserve credit. But the reasoning of the letter — well, let’s just say it raises some serious questions.
Does the toleration of liberal democratic society mean that religious faiths are left substantively intact, so long as they respect the rights of others? Or do liberal principles presuppose a deeper transformation of religion? Does life in democratic society itself transform religion? In Making Religion Safe for Democracy, J. Judd Owen explores these questions by tracing a neglected strand of Enlightenment political thought that presents a surprisingly unified reinterpretation of Christianity by Thomas Hobbes, John Locke, and Thomas Jefferson. Owen then turns to Alexis de Tocqueville’s analysis of the effects of democracy on religion in the early United States. Tocqueville finds a religion transformed by democracy in a way that bears a striking resemblance to what the Enlightenment thinkers sought, while offering a fundamentally different interpretation of what is at stake in that transformation. Making Religion Safe for Democracy offers a novel framework for understanding the ambiguous status of religion in modern democratic society.
Last month, Ashgate Publishing released “Freedom of Speech and Islam” edited by Erich Kolig (University of Otago). The publisher’s description follows:
Freedom of speech and expression is considered in the West a high public good and an important social value, underpinned by legislative and ethical norms. Its importance is not shared to the same extent by conservative and devout Muslims, who read Islamic doctrines in ways seemingly incompatible with Western notions of freedom of speech. Since the Salman Rushdie affair in the 1980s there has been growing recognition in the West that its cherished value of free speech and associated freedoms relating to arts, the press and media, literature, academia, critical satire etc. episodically clash with conservative Islamic values that limit this freedom for the sake of holding religious issues sacrosanct. Recent controversies – such as the Danish cartoons, the Charlie Hebdo affair, Quran burnings, and the internet film ‘The Innocence of Muslims’ which have stirred violent reactions in the Muslim world – have made the West aware of the fact that Muslims’ religious sensitivities have to be taken into account in exercising traditional Western freedoms of speech.
In the latest issue of the Cato Supreme Court Review, there is a useful essay by Miguel Estrada and Ashley Boizelle discussing the upcoming Supreme Court term and some of the major cases that the Court will hear. As readers of the Forum are aware, one of these cases is Holt v. Hobbs, concerning a claim by an Arkansas prison inmate–who is serving a life sentence for burglary and domestic battery stemming from an incident in which he attempted to slash his girlfriend’s throat–that prison rules forbidding him to grow a 1/2 inch beard in accordance with his religious views violate the Religious Land Use and Institutionalized Persons Act. One interesting feature of the case is that the Solicitor General has filed an amicus brief on behalf of the prisoner. The authors comment:
Solicitor General Donald Verrilli filed an amicus brief in support of Holt’s challenge, calling the no-beard policy “religious discrimination” and “a substantial burden on religious exercise.” Interestingly, this brief was filed only a few months after the government’s reply brief in Hobby Lobby, which insisted that the requirement that employers provide their employees with no-cost contraceptives did not constitute a substantial burden on the religious beliefs of those employers. In the government’s view, prisons can advance their legitimate safety objectives in some other way that is more respectful of the inmate’s religious beliefs; the federal government, on the other hand, need not be troubled to accommodate the sincere religious beliefs of business owners.
The federal government’s differential treatment of these two cases is odd because RLUIPA was intended to make available to prisoners protections that replicate those available to the general citizenry under RFRA. Whatever the relationship between the two statutes, it would be bizarre if those whose liberty is restricted on account of proven antisocial behavior were better protected from the government’s incursions on their religion than members of the law-abiding public. Be that as it may, given the Supreme Court’s disposition in Hobby Lobby, we should not be surprised to see a ruling invalidating the no-beard policy as an unjustified burden on Holt’s religion.
The 21st century has been significantly shaped by the growing importance of religion in international politics resulting in rising polarization among nation states. This new dynamic has presented new challenges to international human rights principles. This book deals with some of these new challenges, particularly the growing demand by Muslim states for protection of Islamic religion from blasphemy and defamation. Member states of the Organization of Islamic Cooperation (OIC), through resolutions at the United Nations, made efforts to introduce laws that globally protect Islamic religion from blasphemy and defamation. The bid by OIC member states faced opposition from Western countries. The conflicting claims of the two sides are discussed in this book. The book clearly shows the impact of blasphemy and defamation of religion laws on certain aspects of fundamental human rights principles.
For several decades, culture played a central role in challenging the liberal tradition. More recently however, religion has re-emerged as one of the central challenges facing Western liberal societies’ conception of multiculturalism. Mapping the Legal Boundaries of Belonging explores the complex relationship between religion and multiculturalism and the role of the state and law in the creation of boundaries.
The intersection between religion, nationalism and other vectors of difference in Canada and Israel offer an ideal laboratory in which to examine multiculturalism in particular and the governance of diversity in general. The contributors to this volume investigate concepts of religious difference and diversity and the ways in which these two states and legal systems understand and respond to them. As a consequence of a purportedly secular human rights perspective, they show, state laws may appear to define religious identity in a way that contradicts the definition found within a particular religion. Both state and religion make the same mistake if they take a court decision that emphasizes individual belief and practice as effecting a direct modification of a religious norm: the court lacks the power to change the authoritative internal definition of who belongs to a particular faith. Similarly, in the pursuit of a particular model of social diversity, the state may adopt policies that imply a particular private/public distinction foreign to some religious traditions.
Rod Dreher’s post at The American Conservative, Ghosts of Colson & Neuhaus, is exceptionally interesting. It summarizes the discussions at a recent seminar hosted by First Things editor Rusty Reno, including both Catholics and non-Catholics, on the state of the culture, and more particularly on the state of the American Catholic Church. Much of the focus was on the current generation of students. There’s a lot here, but one issue stood out for me: the real debate within American Catholicism.
As one of the participants at the seminar argued, there really is not, despite the media, a major debate between “liberal” and “conservative” American Catholics. There is indeed a political debate between liberals and conservatives, but it does not map on to any important debate within the American Church. “Liberal” Catholics are Catholics on their way out the door. Their children will be either non-Catholic or else serious Catholic believers. “Liberal” Catholicism is like “liberal” Protestantism: a way station to something else. At best, it will survive as a cultural inflection; it has no chance of being a living faith.
The deeper and more fascinating debate is between those who think that American Catholicism is compatible with this country’s political regime, and the “radicals” who deny it. The accommodationists, to call them that, trace back to Fr John Courtney Murray and nowadays include people like Robert George and George Weigel. The radicals include Alistair Macintyre and others less well known to me. The accommodationists think that there is a lot wrong, to be sure, with American culture and politics, and that the problems may have begun as long ago as the Progressive Era; but they also think institutional reform is both necessary and (still) possible. They want to reinvigorate core institutions of American civil society like the family, the Church, and other voluntary associations.
The accommodationists can point to a period like the 1940s and 1950s to show that American society can be, not just tolerant, but even receptive, to Catholicism. They would probably distinguish between two kinds of American liberalism – the classical liberalism of the Founders, and the liberalism of the present. The former regarded government as, essentially, a scaffolding or a set of neutral procedures, allowing citizens to pursue their private projects peaceably within an agreed-upon framework. The latter kind of liberalism posits that the State exists to pursue certain substantive goods. Both forms of liberalism rest on a conception of the sovereignty of the individual, but the latter form assumes that the State must play a more active role in bringing about the conditions in which individual choice can flourish. Since that form of liberalism regards the family and the Church as inimical to the sovereignty of the individual, it is inimical to Catholicism. But the earlier, historic kind of liberalism is not hostile to such institutions, and indeed draws sustenance from them. (This, of course, was Tocqueville’s argument.) Thus, for the accommodationists, the task ahead for American Catholics seems to be to restore the pristine form of liberalism to American politics.
The radicals regard the 1940s and 50s not as “ordinary time” but as an exceptional and ephemeral truce between Catholicism and American liberalism. They see today’s form of liberalism as the natural or organic outgrowth of classical liberalism, not as an aberration from it. Thus, the antagonism between Catholicism and American liberalism has always been there, even if at times it has been latent. For the radicals, the fundamental flaw in American liberalism has existed since the Founding: liberalism has a false anthropology. It assumes an atomistic conception of the individual, who extricates himself or herself from loneliness and reaches society through a series of bargains. We are not made for society; we construct it. We are not naturally altruistic; we are utterly self-seeking. We are not natively good, nor do we even have natural propensities towards the good. We are incorrigibly evil, but with cleverly devised institutions, we can sometimes produce good effects from evil causes. Political outcomes, like market ones, are guided by an invisible hand, which transubstantiates private vice into public virtue. In essence, the radical Catholics think that American liberalism is founded on a Calvinist, and hence false, conception of human nature. For them, such liberalism both starts and ends in what Burke called “the dust and powder of individuality” which sooner or later is “dispersed to all the winds of heaven.”
There are problems for each side of the Catholic debate. The radicals will have to explain more clearly how the liberalism of the present is continuous with, indeed grows out of, the classical liberalism of the early Republic. They will have to demonstrate the historical and conceptual linkages between the Calvinist and consumerist conceptions of human nature, and how the one eventually developed into the other.
The radicals will also have to explain how the American Catholic Church of the 1950s and 60s achieved such rapport with American society. Ancient, metaphysical, hierarchical, dogmatic, and other-worldly as it was, it nevertheless exerted a powerful influence over a society that was self-consciously modern, pragmatic, tolerant, democratic and secular – an influence far greater than that exercised by the American Church of the present. The Church may have been like a gorgeous if barnacled Spanish galleon, cast ashore by careless waves on some cold New England beach; but however incongruously, it fitted the landscape. Was that “ordinary time,” or is this?
The accommodationists will have to explain why things went wrong and how they can be corrected. Given the stupendous efforts that have been made in the “culture wars” of the past forty years to recapture American culture or even just to hold the line against its further deterioration, they will have to show how, in much less promising circumstances, further efforts will bring tangible improvements.
Unquestionably, this is a serious and important debate – one that calls the ultimate assumptions of the American regime into question. Many of us are shocked and depressed by the current state of America – its hardness of heart to the most vulnerable; its contempt for the poor; its violence abroad and at home; its corrupt sexual morality; its increasing intolerance and persecutory zeal (with ourselves as targets); and so on. But for these debating Catholics, the question is whether the American situation is curable, by some kind of reform program; or incurable, inherently tending to self-destruction.
The parties to the Catholic debate are thinking foundationally – a sure sign that we are in crisis. They are asking: Do we continue to engage the legal and political system? Or do we break off and try to create sheltered communities of our own, like the hidden church under the Roman Empire? What can we learn from the adaptive strategies of other religious minorities (a particularly interesting observation in Dreher’s posting came from an Orthodox Jew)? Is America a disappointing friend, or is it an enemy? If it’s an enemy, how do we deal with it?
This engaging book provides a comprehensive analysis of the issues in Burwell v. Hobby Lobby, the blockbuster legal challenge to the Affordable Care Act regulation that requires employer-sponsored health plans to provide contraceptive coverage. Through a series of debates between advocates on both sides of the case, the book tackles questions such as: whether for-profit corporations can assert religious-exercise claims under the First Amendment or federal law, whether businesses with religious objections to certain contraceptives should be exempt from coverage requirements, and what the consequences are of the Supreme Court’s June 2014 ruling in favor of Hobby Lobby. This case will be discussed for years to come, and the spirited debate between the authors provides fascinating and informative food for thought to scholars, students, and the public as they grapple with fundamental questions of corporate personhood, religious liberty, and health care policy.
are left substantively intact, so long as they respect the rights of others? Or do liberal principles presuppose a deeper transformation of religion? Does life in democratic society itself transform religion? In Making Religion Safe for Democracy, J. Judd Owen explores these questions by tracing a neglected strand of Enlightenment political thought that presents a surprisingly unified reinterpretation of Christianity by Thomas Hobbes, John Locke, and Thomas Jefferson. Owen then turns to Alexis de Tocqueville’s analysis of the effects of democracy on religion in the early United States. Tocqueville finds a religion transformed by democracy in a way that bears a striking resemblance to what the Enlightenment thinkers sought, while offering a fundamentally different interpretation of what is at stake in that transformation. Making Religion Safe for Democracy offers a novel framework for understanding the ambiguous status of religion in modern democratic society.
good and an important social value, underpinned by legislative and ethical norms. Its importance is not shared to the same extent by conservative and devout Muslims, who read Islamic doctrines in ways seemingly incompatible with Western notions of freedom of speech. Since the Salman Rushdie affair in the 1980s there has been growing recognition in the West that its cherished value of free speech and associated freedoms relating to arts, the press and media, literature, academia, critical satire etc. episodically clash with conservative Islamic values that limit this freedom for the sake of holding religious issues sacrosanct. Recent controversies – such as the Danish cartoons, the Charlie Hebdo affair, Quran burnings, and the internet film ‘The Innocence of Muslims’ which have stirred violent reactions in the Muslim world – have made the West aware of the fact that Muslims’ religious sensitivities have to be taken into account in exercising traditional Western freedoms of speech.
