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Bradley, “Unquiet Americans”

This January, St. Augustine’s Press will release “Unquiet Americans: U.S. Catholics and America’s Common Good” by Gerard Bradley (Co-Director of the Natural Law Institute).  The publisher’s description follows:

Unquiet AmericansBefore the Second Vatican Council, America’s Catholics operated largely as a coherent voting bloc, usually in connection with the Democratic Party. Their episcopal leaders generally spoke for Catholics in political matters; at least, where America’s bishops asserted themselves in public affairs there was little audible dissent from the faithful.

More than occasionally, the immigrant Church’s eagerness to demonstrate its patriotic bona fides furthered its tendency to speak with one voice about national matters, and in line with the broader societal consensus. And, notwithstanding the considerable conflict which Catholics encountered, and generated, in American political life, there was before the Council broad agreement in American culture about the centrality of Biblical morality to the success of Americans’ experiment with republican government.

In other words: before the Council, American Catholics’ relationship to the political common good was mediated, somewhat uncritical, and insulated from conflict (both within and without the Church) over such fundamental matters as protection of innocent life, marriage and family life, and (to a lesser extent) religious liberty.

This has all changed since the mid-1960s. For the first time in the Church’s pilgrimage on these shores, controversial questions about the basic moral requirements of the political common good are front and center for America’s Catholics. These questions require Catholics to confront matters which heretofore they either took for granted, read off from the background culture, or which they left to the bishops to handle. But the Council Fathers rightly recognized that Jesus calls upon a formed and informed laity to act as leaven in the public realm, to bring Gospel values to the temporal sphere. In this book of essays touching upon Catholic social doctrine, the truth about human equality and political liberty, and religious faith as it bears upon public life and the public engagement of lay Catholics, Gerard Bradley supplies indispensable aid to those seeking to answer Jesus’ call.

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Gold, “Provincial Hinduism”

This January, Oxford University Press will release “Provincial Hinduism: Religion and Community in Gwalior City” by Daniel Gold (Cornell University).  The publisher’s description follows:

Provincial HinduismProvincial Hinduism explores intersecting religious worlds in an ordinary Indian city that remains close to its traditional roots, while bearing witness to the impact of globalization. Daniel Gold looks at modern religious life in the central Indian city of Gwalior, drawing attention to the often complex religious sensibilities behind ordinary Hindu practice. Gold describes temples of different types, their legendary histories, and the people who patronize them. He also explores the attraction of Sufi shrines for many Gwalior Hindus. Delicate issues of socioreligious identity are highlighted through an examination of neighbors living together in a locality mixed in religion, caste, and class. Pursuing issues of community and identity, Gold turns to Gwalior’s Maharashtrians and Sindhis, groups with roots in other parts of the subcontinent that have settled in the city for generations. These groups function as internal diasporas, organizing in different ways and making distinctive contributions to local religious life. The book concludes with a focus on new religious institutions invoking nineteenth-century innovators: three religious service organizations inspired by the great Swami Vivekenanda, and two contemporary guru-centered groups tracing lineages to Radhasoami Maharaj of Agra.

Gold offers the first book-length study to analyze religious life in an ordinary, midsized Indian city, and in so doing has created an invaluable resource for scholars of contemporary Indian religion, culture, and society.

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Oliver, “Hinduism and the 1960s: The Rise of a Counter-culture”

In January, Bloomsbury Publishing will release “Hinduism and the 1960s: The Rise of a Counter-culture” by Paul Oliver (University of Huddersfield, UK). The publisher’s description follows:

The West has drawn upon Hinduism on a wide scale, from hatha yoga and meditation techniques, to popular culture in music and fashion, yet the contribution of Hinduism to the counter-culture of the 1960s has not been analysed in full.

Hinduism and the 1960s looks at the youth culture of the 1960s and early 1970s, and the way in which it was influenced by Hinduism and Indian culture. It examines the origins of the 1960s counter-culture in the Beat movement of the 1950s, and their interest in Eastern religion, notably Zen. When the Beatles visited India to study transcendental meditation, there was a rapid expansion in interest in Hinduism. Young people were already heading east on the so-called ‘Hippie Trail’, looking for spiritual enlightenment and an escape from the material lifestyle of the West. Paul Oliver examines the lifestyle which they adopted, from living in ashrams to experimenting with drugs, sexual liberation, ayurvedic medicine and yoga.

This engaging book analyses the interaction between Hinduism and the West, and the way in which each affected the other. It demonstrates the ways in which contemporary Western society has learned from the ancient religion of Hinduism, and incorporated such teachings as yoga, meditation and a natural holistic lifestyle, into daily life. Each chapter contains a summary and further reading guidance, and a glossary is included at the end of the book, making this ideal reading for courses on Hinduism, Indian religions, and religion and popular culture.

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“The Oxford Encyclopedia of the Bible and Law” (Strawn ed.)

In January, Oxford University Press will release “The Oxford Encyclopedia of the Bible and Law” edited by Brent Strawn (Emory University). The publisher’s description follows:

The Oxford Encyclopedia of the Bible and Law (OEBL) provides the most up-to-date and extensive treatment of the Bible and law yet attempted, both updating and expanding the scope of previous scholarship in the field. In comprehensive overviews, scholars at the forefront of biblical studies and law address three foci: biblical law itself–its nature, collections, and genres; the ancient contexts of biblical law, throughout the ancient Mediterranean (ancient Near Eastern, Greco-Roman, and Early Jewish); and the afterlife and influence of biblical law in antiquity and in modern jurisprudence around the world. Essays include treatments of the Book of the Covenant, the Ten Commandments, the Sermon on the Mount, Greek Law, and the Laws of Hammurapi, but also testimony and witness, property, ritual, rhetoric, gender, and sexual legislation.

 

Posted on by Marc O. DeGirolami

Common Law Constitutionalism: The Meaning of Establishment Circa 1800

In this post, I speculated about the possibility that the meaning of “establishment” might be illuminated by the English experience of the term before the Constitution’s drafting. The idea would be to understand “establishment” not by reference to a fixed meaning traceable to the founding, but instead by reference to a general, but not limitless, range of meanings in use as a matter of the common law experience antedating the Constitution. That range might have a core and a periphery, and while the periphery, it is true, might change over time, any changes would be very gradual and always intimately connected with the historical common law meanings of establishment.

Our Center board member, Don Drakeman, helpfully points me to a different kind of common law evidence–uses of the term establishment in state courts after ratification of the Constitution. He argues that a shift was occurring in the meaning of the term during this period: from a narrow meaning limited to what Thomas Curry has called a meaning “modeled on the Anglican establishment in England,” to a broader meaning covering the issue of general assessments for funding churches. The former meaning would suggest a “sect preference” approach to the issue of establishment, while the latter would not.

In his book, Church, State, and Original Intent (at pages 216-229), Don describes the different post-First Amendment views in Massachusetts and New Hampshire circa 1800 about the meaning of establishment as expressed in three court cases—Avery v. Tyringham (1807), Barnes v. Falmouth (1810), and Muzzy v. Wilkins (1803).

Tyringham concerned Article III of the 1780 Massachusetts Constitution, the preamble of which at that time stated that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and [that] these cannot generally be diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality.” Based on that rationale, the Massachusetts Constitution goes on to authorize towns “to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality.” But Article III also provided that “no subordination of any one sect or denomination to another shall ever be established by law.” The opinion of Justice Theodore Sedgwick (who also served as a member of the First Congress that adopted the Establishment Clause) concluded that in these “strong and energetic” provisions “the religion of Protestant Christianity is established. Liberty of conscience is secured.” (emphasis in original) That interpretation suggests that the sort of explicit public support for Protestant Christianity contemplated by the Massachusetts Constitution does constitute an establishment, even though Massachusetts never had an expressly authorized or designated official church establishment.

In a later Massachusetts case, Barnes v. Falmouth (1810), Justice Theophilus Parsons considered whether the minister of an unincorporated church could share in taxes raised under Article III. Justice Parsons wrote that the case provided an occasion to “consider the motives which induced this people to introduce into the constitution a religious establishment, the nature of the establishment introduced, and the rights and privileges it secured to the people, and to their teachers.” Here is Don’s description of the opinion:

According to Chief Justice Parsons, the rationale for an establishment is based on the fact that “[c]ivil government…availing itself only of its own powers, is extremely defective”; accordingly, “the people of Massachusetts…adopted and patronized a religion, which by its benign and energetic influences, might cooperate with human institutions, to promote and secure the happiness of its citizens.” Fortunately, he writes, “the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellences well known, and its divine authority admitted.” In particular, “This religion, as understood by Protestants, tending, by its effects, to make every man…a better husband, parent, child, neighbor, citizen, and magistrate, was by the people established as a fundamental and essential part of their constitution.” Pointing out that there is “liberty of conscience” for all, “whether Protestant or Catholic, Jew, Mahometan or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion of Protestant Christians to all the people.” It is, therefore, “the right and duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion, and morality.” Unincorporated churches could not share in taxes raised under Article III, concluded Parsons; otherwise, which teacher to be supported depends “exclusively on the will of a majority of each society incorporated for these purposes.”

221-222. Don argues that Justice Parsons’s description of this arrangement as an “establishment” shows that some Massachusetts jurists believed that the town-by-town assessments for Protestant teachers were themselves believed to be establishments. It is an interesting question whether the assessments themselves, or instead the assessments only as part of the general, if unofficial, privileging of Protestant Christianity as the civic religion, is really what Justices Parsons and Sedgwick are describing as an “establishment.” The latter possibility might narrow the meaning of establishment somewhat: the privileging of Protestant Christianity by all of the means described by these Justices in the Massachusetts Constitution—including the assessment scheme—comes perhaps closer to the meaning of establishment as “official” privileging than does a meaning which considers assessments favoring religion alone as an establishment.

A third piece of evidence can be found right over the border among some Justices in New Hampshire, where, Don writes, “at about the same time, a distinguished jurist who was a member of the Second through the Fifth Federal Congresses made a point of saying that the Granite State’s town-based general assessment tax system for the support of Protestant ministers, which was quite similar to the Massachusetts approach, was clearly not an establishment of religion.” 223

The issue arose in the 1803 case of Muzzy v. Wilkins, where Chief Justice Jeremiah Smith “considered whether a Presbyterian was entitled to an exemption from the town taxes in support of the Congregational church under New Hampshire’s constitution, which empowered the legislature to authorize the towns of the state to make provision for public protestant teachers of piety, religion, and morality.” According to Chief Justice Smith, the assessment system alone did not constitute an establishment: “No one sect is invested with any political power much less with a monopoly of civil privileges and civil offices. All denominations are equally under the protection of the law, are equally the objects of its favor and regard.”

Chief Justice Smith’s is that rare opinion where a judge actually provides a definition of an “establishment”: “A religious establishment is where the State prescribes a formulary of faith and worship for the rule and governance of all the subjects.”

This definition, it is true, is narrower than what can be discerned from the general approach in the two Massachusetts decisions. But New Hampshire’s state constitution at the time did not (so far as I know) contain the sort of language unofficially, but quite explicitly, privileging Protestant Christianity as was the case in Massachusetts. It might be that it was this general privileging (even if unofficial, and to include, in Massachusetts, state assessments) that was thought by both Massachusetts and New Hampshire jurists to constitute “establishment.”

At any rate, it would be worthwhile, as well as interesting, to explore the range of common law meanings of establishment before ratification of the First Amendment as well. As Don says in the book, it would probably be impossible to arrive at a single fixed meaning. But it might well be possible to reach consensus about a general range or spectrum of meanings, with core or uncontested meanings graduating outward toward peripheral or contested ones.

Posted on by Marc O. DeGirolami

Fallon on Justice Breyer’s Van Orden Concurrence

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.

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Around the Web this Week

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

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“Religious Freedom in America” (Hertzke, ed.)

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:

Religious Freedom in AmericaAll 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.

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Al-Hibri, “The Islamic Worldview”

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:

This Islamic WorldviewThe 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.

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“Radical Secularization? An Inquiry into the Religious Roots of Secular Culture” (Latré et. al., eds.)

Next month, Bloomsbury Publishing will release “Radical Secularization? An Inquiry into the Religious Roots of Secular Culture”  edited by Stijn Latré, Walter Van Herck, and Guido Vanheeswijck (all of the University of Antwerp, Belgium). The publisher’s description follows:

What does it mean for a society to be secular? Answering this question from a philosophical angle, “Radical Secularization?” delves into the philosophical presuppositions of secularization. Which cultural evolutions made secularization possible? International scholars from different disciplines assess the answers given by many leading philosophers such as, among others, Löwith, Blumenberg and Habermas (Germany), Gauchet and Nancy (France), Taylor and Bellah (North America). They examine the theory that secularization cannot only be regarded as a cultural change that was forced upon religion from an external source (e.g. science), but should also be considered as a phenomenon triggered by motives internal to religion. If religions are indeed capable of inner transformations, the question arises whether religions can persist in the secular societies they inadvertently helped to bring about, and how secular societies may accommodate religion.