The latest issue of the Harvard Law Review contains an extensive appreciation of a selection of Justice Breyer’s opinions. I thought to note one essay as particularly well done: Professor Richard Fallon’s discussion of Justice Breyer’s decisive concurrence in Van Orden v. Perry–one of two companion Ten Commandments decisions issued by the Court in 2005. In that concurrence, Justice Breyer decided for a variety of reasons that, he said, defied codification by test or iron rule, that the monument that had stood for many years on the grounds of the Texas state Capitol did not violate the Establishment Clause. Here is Professor Fallon (footnotes omitted):
Justice Breyer’s third ground for distinguishing prior cases, and especially McCreary County, seems to me to cut to the heart of the dilemma that the Supreme Court confronted. Even if the Texas monument’s long history did not dilute its religious message, that history served as a reminder that the Establishment Clause — read against the background of history — cannot, as Justice Breyer put it, “compel the government to purge from the public sphere all that in any way partakes of the religious.” From the beginning, religion has been woven in various ways into American public life. Recognition of this heritage does not, of course, point directly to the correct ruling in Van Orden. It does, however, help to identify the tension that Van Orden required the Court to resolve, or at least manage. Although the Supreme Court has frequently articulated a demand that the government must be neutral in matters of religion, neither that demand, nor what Justice Breyer referred to as the “Court’s other tests,” can “readily explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.”
Without purporting to offer a comprehensive resolution to the tension that the Court’s cases exhibit, Justice Breyer’s Van Orden concurrence suggests a narrow prescription that embodies pragmatic good sense. Although modern governments may not initiate novel forms of support for religious institutions and beliefs, the Establishment Clause should not be read to mandate the chiseling out — which in some cases might be quite literal — of all religious symbols and practices that have long formed part of the architecture of American public life, American public buildings, and American public monuments. To read the Clause so stringently would provoke anger at and resentment of the Supreme Court’s perceived hostility to religion far disproportionate to any good that this approach would achieve….
There is more, and it’s well-worth reading. I, too, admire Justice Breyer’s Van Orden concurrence, but while my reasons are similar to Professor Fallon’s, they are not identical. Perhaps the primary point of divergence in our perspectives is that my defense of historical settlements and practices as a guide to interpreting the meaning of the religion clauses does not depend either on judges’ pragmatic calculations about the comparative social divisiveness of ruling this way or that, or on an overarching or master commitment to religious neutrality, but instead on the intrinsic worth of long-standing historical settlements and customs (doctrinal and social) as a method of conciliating the conflicts that attend these controversies:
The past lies in us and is constitutive of who we are, and though history may be epistemically uncertain, logical certitude is hardly the point of a theory of religious liberty. This point serves as the connection to social history. If the doctrinal negotiations of the past are worthy, though imperfect, counselors for the predicaments of the present–if they are that which we know, and their memory is that which we have–then the objects of those negotiations deserve our attention as well. Political communities are not a-temporal or static associations. They are trans-generational enterprises that depend on the transmission of political and social histories….
The past, in sum, is a beacon. It is a consolation, sometimes effective, other times not, against the ravages of conflict, incommensurability, sacrifice, and tragic loss.
The Tragedy of Religious Freedom 123, 144.
Some interesting law and religion news stories from around the web this week:
- Miles from ISIS’s front lines, a Christian couple in Syria held a marriage celebration attended by Christians who defy ISIS by remaining in their homes when so many others have fled.
- The Seventh Circuit ruled that the Freedom From Religion Foundation has no standing to challenge an IRS rule allowing tax-free housing to ministers, a case concerning the so-called parsonage exemption.
- The Indonesian government says it is drafting new legislation to protect citizens of all faiths in the world’s largest Muslim majority nation. The news follows an announcement that citizens of faiths other than the six officially recognized by the government do not have to choose one of the six in the religion column of the national identification card. The Indonesian Interior Minister said the legislation was needed because the religion choice provision was causing many Indonesians to avoid getting national ID cards.
- Members of Myanmar’s Rohingya Muslim minority hope that this week’s visit by President Obama and other world leaders will improve their conditions. Up to 1 million Rohingya have been denied full citizenship, and around 140,000 displaced Rohingya live behind barbed wire and under armed watch in camps and villages, unable to move freely and in many cases unable to farm, fish or find employment.
- Allying themselves with the Shiite militant group Hezbollah, some Lebanese Christians are forming militias to defend their land against ISIS.
- In a movement to make conversion to Judaism more accessible for so-called “religionless” Israelis, the Israeli cabinet passed a new law concerning conversion that affects at least 330,000 Israelis who immigrated to Israel following the “Law of Return.”
- Catholic bishops in Kenya urge Kenyans to avoid the tetanus vaccination campaign originated by the World Health Organization because they believe it is a disguised population control program. Prompted by “suspicious” implementation of the campaign, the bishops conducted private tests of the vaccine, which was not tested by Kenya’s Ministry of Health and found it was laced with a birth control hormone. The government and WHO deny the allegations.
- The Air Force approved an update to its rules governing religious expression. The new rules were intended to incorporate feedback from the Air Force’s “Religious Freedom Focus Day,” during which leaders of the Air Force’s chaplain corps met to discuss the service’s law and policy regarding religious freedom, the complaint process, and how to inform airmen about their rights.
- Three Catholic bishops speak out in support of President Obama’s pledge to act to bring about immigration reform.
- The Human Rights Campaign, the nation’s largest gay advocacy group, launched a faith-based campaign called “All God’s Children,” to bolster gay rights support and same-sex marriage legislation in Mississippi.
This January, Oklahoma University Press will release “Religious Freedom in America: Constitutional Roots and Contemporary Challenges” by Allen D. Hertzke (University of Oklahoma). The publisher’s description follows:
All Americans, liberal or conservative, religious or not, can agree that religious freedom, anchored in conscience rights, is foundational to the U.S. democratic experiment. But what freedom of conscience means, what its scope and limits are, according to the Constitution—these are matters for heated debate. At a moment when such questions loom ever larger in the nation’s contentious politics and fraught policy-making process, this timely book offers invaluable historical, empirical, philosophical, and analytical insight into the American constitutional heritage of religious liberty.
As the contributors to this interdisciplinary volume attest, understanding religious freedom demands taking multiple perspectives. The historians guide us through the legacy of religious freedom, from the nation’s founding and the rise of public education, through the waves of immigration that added successive layers of diversity to American society. The social scientists discuss the swift, striking effects of judicial decision making and the battles over free exercise in a complex, bureaucratic society. Advocates remind us of the tensions abiding in schools and other familiar institutions, and of the major role minorities play in shaping free exercise under our constitutional regime. And the jurists emphasize that this is a messy area of constitutional law. Their work brings out the conflicts inherent in interpreting the First Amendment—tensions between free exercise and disestablishment, between the legislative and judicial branches of government, and along the complex and ever-shifting boundaries of religion, state, and society.
What emerges most clearly from these essays is how central religious liberty is to America’s civic fabric—and how, under increasing pressure from both religious and secular forces, this First Amendment freedom demands our full attention and understanding.
This past October, American Bar Association Book Publishing released “The Islamic Worldview: Islamic Jurisprudence – An American Muslim Perspective, Vol. 1” by Azizah Al-Hibri (University of Richmond). The publisher’s description follows:
The Islamic Worldview is the first volume of Islamic Jurisprudence: An American Muslim Perspective, a groundbreaking series that revisits traditional Islamic jurisprudence in order to develop a modern enlightened understanding of Islam with respect to gender, marriage, family, and democratic governance.
With Quranic textual analysis and commentary, it provides both the Muslim and non-Muslim reader with a basic understanding of the legal foundations of Islam. It introduces the sources of Islamic law and their significance in the hierarchy of Islamic jurisprudence while presenting Dr. al-Hibri’s articulation of the Islamic worldview, developed in light of modern day concerns, such as those relating to gender, race and class. The Islamic Worldview introduces the Qur’an as the supreme source of Islamic law and discusses basic rules and principles that have been noted by jurists over time in understanding and interpreting it, and how these rules can and have been applied toward the evolution of a uniquely Islamic global perspective.