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Crawford, “Black Muslims and the Law: Civil Liberties from Elijah Muhammad to Muhammad Ali”

In February, Lexington Books will release “Black Muslims and the Law: Civil Liberties from Elijah Muhammad to Muhammad Ali” by Malachi D. Crawford (University of Houston). The publisher’s description follows:

Black Muslims and the Law: Civil Liberties From Elijah Muhammad to Muhammad Ali examines the Nation of Islam’s quest for civil liberties as what might arguably be called the inaugural and first sustained challenge to the suppression of religious freedom in African American legal history. Borrowing insights from A. Leon Higgonbotham Jr.’s classic works on American slavery jurisprudence, Black Muslims and the Law reveals the Nation of Islam’s strategic efforts to engage governmental officials from a position of power, and suggests the federal executive, congressmen, judges, lawyers, law enforcement officials, prison administrators, state governments, and African American civic leaders held a common understanding of what it meant to be and not to be African American and religious in the period between World War II and the Vietnam War. The work raises basic questions about the rights of African descended people to define god, question white moral authority, and critique the moral legitimacy of American war efforts according to their own beliefs and standards.

Posted on by Marc O. DeGirolami

The Ideological Fragmentation of Public Law

I am recently back from the annual AALS meeting, during which I attended some of the offerings of the annual “shadow” Federalist Society Conference as well. Both meetings had several worthwhile programs. One of the most interesting features of both conferences was the extent to which political and ideological fragmentation has become more ordinary and prevalent in public law disciplines. I found this to be quite comforting. In this post, I want to explain why, and to describe some of what I saw at the two conferences in this respect. But first, some thoughts on law and religion as a discipline today.

For some time now, I have believed that the political and ideological divides among legal academics in the law and religion field have been growing. They have now reached cavernous dimensions. Paul Horwitz argues in this (superb) piece that law and religion scholars have been in a state of general consensus about free exercise/accommodation issues until extremely recently, but I see things a little differently. The disagreements about free exercise have been manifest at least since I have been studying and writing in the area–about a decade now and probably longer than that. But Paul is right that they have increased dramatically even within that period.

Paul is also right that there was a period of such consensus. But it was a much earlier time. It was the period when, for example, giants including Kent Greenawalt and Doug Laycock and Vince Blasi and Jesse Choper came of scholarly age, the period when Leo Pfeffer’s views were dominant in this area, and only a few outliers arguing for non-preferentialism like James O’Neill existed. One could be a liberal nel vecchio stile and with great complaisance in those days, but still support exotic religions (traditional Christian religions were never really on the agenda), confident in the view that the “great minds” of the past—Jefferson and Madison (Marshall, Adams, and so many others were rarely mentioned)—were on board in spirit. One bought one’s bona fides to argue for relatively expansive free exercise protections (it was the ‘60s and ‘70s, and people should be free to follow their stars and make themselves into whatever they wanted) with iron separationism when it came to establishment. But the bottom line was that one’s Establishment Clause views always drove the boat then, as, it seems to me, they do now. Free exercise in that period was an afterthought—a concession to the unusual and the strange. Sort of like the way many discuss the nature of excuses in criminal law. One is excused for one’s conduct because, notwithstanding its wrongfulness, one makes a concession to human weakness by allowing that one is not blameworthy for that conduct. That’s how religion was perceived—as basically somewhere between odd and wrongful, but not culpable, and therefore excusable conduct which should be accommodated where possible for those in need of such ministrations.

That period is dead. It has been dead since long before Paul or I started writing about these matters. For those who followed in the wake of the liberal consensus, what happened was—again, beginning from an ever-hardening view of what the Establishment Clause demanded—the end of the ‘60s and ‘70s with its taste for exoticism and weird pluralism. In its place arrived a new zest for notions of equality, nondiscrimination, leveling, and so on. To argue for “pluralism” full stop and for its own sake today is something of an anachronism (this comes through nicely in the column Paul reacts to today by Frank Bruni). Exactly what is there of worth about pluralism as an intrinsic good? In the interim from then to now, sexual equalities of various sorts have gone mainstream (they were not so when the earlier consensus reigned; at least one liberal law and religion scholar of the ancien regime only began to support gay marriage in the last decade or so). Equalities of other kinds have taken center stage.

The illusion of consensus could be maintained, for a time at least, but only until the new egalitarian mandarins were challenged. Those challenges have come in the abortion context and other substantive due process areas. With some exceptions, the challenges have largely failed. But they had never come from the religion clauses proper (or their statutory analogues). Now they have. And they have made manifest the instability of the former consensus and the fact of its breakdown over many years. To invoke religious freedom is no longer to appeal to a commonly recognized constitutional freedom; it is to whistle to your favorite mangy dog.

The consequence today is that increasingly, law and religion scholars share far less common ground than they did 40 years ago. Outside their own political/ideological constituency, they have much more work to do to convince one another of their arguments. Indeed, the fact that some scholars squarely within the liberal consensus are now felt to be raving right-wingers is itself a marker of the fragmentation and polarization of the legal academy. Doug Laycock may be many wonderful and admirable things; but conservative is not one of them. These movements within (and also outside) the legal academy sometimes–perhaps oftentimes—make it feel like legal scholars have less and less to say to one another. On occasion, I have felt this to be an unfortunate feature of law and religion scholarship–exhausting and depressing. More work feels political; less work feels scholarly; and so it goes. One begins to long for other sorts of work.

But the panels that I attended last week at the AALS and Federalist Society Conferences began to persuade me of two things. First, ideological fracture is a more general development in public law in the legal academy. Second, that fracture–and all that it brings–has positive as well as negative features.

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Posted on by Claudia E. Haupt

Who Speaks on Your License Plate?

The Supreme Court recently granted cert in Walker v. Texas Division, Sons of Confederate Veterans, Inc. The issues presented in that case are whether specialty license plates are a form of government speech, and whether Texas engaged in viewpoint discrimination when it rejected the SCV’s plate design featuring the Confederate battle flag. In a 2011 article in the Tulane Law Review, I wrote about license plate speech more extensively from a perspective slightly different than that presented in the Walker v. SCV case. My focus was on the question of Establishment Clause responsibility for religious messages on license plates. But the issues raised overlap significantly.

Imagine a state decides to display religious symbols or text on a license plate. South Carolina, for instance, created a specialty plate featuring a stained glass window with a superimposed cross and the words “I Believe.” Efforts to create a plate with a similar design failed in Florida. A federal court ultimately permanently enjoined South Carolina from issuing the plates.

Does a state’s specialty license plate program create a public forum for speech? If religious messages are displayed on the license plates, is the message purely private religious speech, or is it attributable to the state for Establishment Clause purposes?

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“Religion and Human Rights” (Gräb & Charbonnier, eds.)

This March, Walter De Gruyter Press will release “Religion and Human Rights: Global Challenges from Intercultural Perspectives” by Lars Charbonnier and Wilhelm Gräb (Humboldt University, Germany).  The publisher’s description follows:

Religion and Human Rights- InterculturalCurrent processes of globalization are challenging Human Rights and the attempts to institutionalize them in many ways. The question of the connection between religion and human rights is a crucial point here. The genealogy of the Human Rights is still a point of controversies in the academic discussion. Nevertheless, there is consensus that the Christian tradition – especially the doctrine that each human being is an image of God – played an important role within the emergence of the codification of the Human Rights in the period of enlightenment. It is also obvious that the struggle against the politics of apartheid in South Africa was strongly supported by initiatives of churchy and other religious groups referring to the Human Rights. Christian churches and other religious groups do still play an important role in the post-apartheid South Africa. They have a public voice concerning all the challenges with which the multiethnic and economically still deeply divided South African society is faced with. The reflections on these questions in the collected lectures and essays of this volume derive from an academic discourse between German and South African scholars that took place within the German-South African Year of Science 2012/13.

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Engelhardt, “Singing the Right Way”

This past December, Oxford University Press released “Singing the Right Way: Orthodox Christians and Secular Enchantment in Estonia” by Jeffers Engelhardt (Amherst College).  The publisher’s description follows:

Singing the Right WaySinging the Right Way enters the world of Orthodox Christianity in Estonia to explore musical style in worship, cultural identity, and social imagination. Through both ethnographic and historical chapters, author Jeffers Engelhardt reveals how Orthodox Estonians give voice to the religious absolute in secular society. Based on a decade of fieldwork, Singing the Right Way traces the sounds of Orthodoxy in Estonia through the Russian Empire, interwar national independence, the Soviet-era, and post-Soviet integration into the European Union. Approaching Orthodoxy through local understandings of correct practice and correct belief, Engelhardt shows how religious knowledge, national identity, and social transformation illuminate how to “sing the right way” and thereby realize the fullness of Estonians’ Orthodox Christian faith in context of everyday, secular surroundings. Singing the Right Way is an innovative model of how the musical poetics of contemporary religious forms are rooted in both consistent sacred tradition and contingent secular experience. This landmark study is sure to be an essential text for scholars studying the ethnomusicology of religion.

Posted on by Marc O. DeGirolami

Interesting Law and Religion Case Before the Supreme Court Next Week

The Supreme Court’s January calendar begins next week with argument in Reed v. Town of Gilbert, Arizona, a law and religion case that has gotten very little attention. The case relates to some of the issues that Mark Movsesian and Perry Dane have been talking about involving the New York City subway regulations concerning advertising. I found Perry’s phrase, “mental maps,” to be useful in thinking through the categories that we use to divide up both meanings and the motivations for expressing certain meanings. This case tests our mental maps.

It seems that the Town of Gilbert has a complex set of regulations governing the display of signs. It categorizes signs into five groups: political signs, ideological signs, “qualifying event” signs, homeowners’ association temporary signs, and real estate signs. Different rules regarding the size, duration, and location of the sign (among other variables) apply depending on the category of sign that one wishes to display.

The petitioners in the case are representatives of the Good News Community Church, a small Christian church that “holds services on Sundays, where attendees worship and fellowship together, learn biblical lessons, sing religious songs, pray for their community, and encourage others whenever possible.” Good News depends on signs to advertise its presence and invite people to join.

The Town has classified Good News as the sort of organization entitled to “qualifying event signs.” A “qualifying event sign” is a “temporary sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’ A ‘qualifying event’ is any assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”

By contrast, a “political sign” is a “temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election.”

And an “ideological sign” is a “sign communicating a message or ideas for non- commercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.”

The petitioners’ basic complaint is that by lumping the Church in with organizations entitled only to a “qualifying event” sign, the Town is engaging in viewpoint discrimination against it, because it is only entitled to a tiny sign of very limited duration that can only be displayed in limited locations. The Town’s justification for this highly reticulated set of requirements and classifications? “Safety and aesthetics.” Also of interest is that at some point in the procedural history (which looks rather involved), the Town amended certain locational requirements for “qualifying events signs,” replacing them with a requirement that “qualifying events signs” must “relate to events in the Town of Gilbert.” That requirement does not apply to political or ideological signs. The Church claims that this amendment was made specifically to target it for unfavorable treatment.

At any rate, it will be interesting to see how the argument goes. Here is an interesting contrast contained in the Petitioners’ Brief:

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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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“Religion and the Marketplace in the United States” (Stievermann et al., eds.)

This month, Oxford University Press releases “Religion and the Marketplace in the United States”  edited by Jan Stievermann (Heidelberg University), Philip Goff (Indiana University Indianapolis), Detlef Junker (Heidelberg University), with Anthony Santoro (Heidelberg University), and Daniel Silliman (Heidelberg University). The publisher’s description follows:

Alexis de Tocqueville once described the national character of Americans as one question insistently asked: “How much money will it bring in?” G.K. Chesterton, a century later, described America as a “nation with a soul of a church.” At first glance, the two observations might appear to be diametrically opposed, but this volume shows the ways in which American religion and American business overlap and interact with one another, defining the US in terms of religion, and religion in terms of economics.

Bringing together original contributions by leading experts and rising scholars from both America and Europe, the volume pushes this field of study forward by examining the ways religions and markets in relationship can provide powerful insights and open unseen aspects into both. In essays ranging from colonial American mercantilism to modern megachurches, from literary markets to popular festivals, the authors explore how religious behavior is shaped by commerce, and how commercial practices are informed by religion. By focusing on what historians often use off-handedly as a metaphor or analogy, the volume offers new insights into three varieties of relationships: religion and the marketplace, religion in the marketplace, and religion as the marketplace. Using these categories, the contributors test the assumptions scholars have come to hold, and offer deeper insights into religion and the marketplace in America.

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“Non-State Justice Institutions and the Law: Decision-Making at the Interface of Tradition, Religion and the State” (Kötter et al., eds.)

In February, Palgrave Macmillan will release “Non-State Justice Institutions and the Law: Decision-Making at the Interface of Tradition, Religion and the State”  edited by Matthias Kötter (WZB Berlin Social Science Center), Tilmann Röder (Max Planck Foundation for International Peace and the Rule of Law, Heidelberg, Germany), Folke Schuppert (WZB Berlin Social Science Center) and Rüdiger Wolfrum (International Tribunal for the Law of the Sea). The publisher’s description follows:

Traditional forms of dispute resolution have become an important aspect in the political and academic debates on law and development and in numerous cases of constitution-making and judicial reform. This book focuses on decision-making by non-state justice institutions at the interface of traditional, religious, and state laws. The authors discuss the implications of non-state justice for the rule of law, presenting case studies on traditional councils and courts in Pakistan, South Sudan, Ethiopia, Bolivia and South Africa. Looking at the legitimacy of non-state justice from various angles, this collection explores the ways in which non-state legal systems and governmental structures are embedded in official state justice institutions and how this affects the protection of human rights.

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Aroney on Freedom of Religion as an Associational Right

The latest issue of the University of Queensland Law Journal is devoted entirely to issues of federalism and freedom of religion in Australia.  One article by Professor Nicholas Aroney, Freedom of Religion as an Associational Right, is particularly informative.  You can read the article in its entirety here.

In his article, Professor Aroney argues that the religious freedom clauses of the Australian Constitution (section 116), which were modeled after the American First Amendment, should be interpreted to protect not only individual rights, but also communal or associational rights.  In support of this contention, Professor Aroney provides an impressive textual and historical analysis of section 116.  He further shows how this interpretation is in accord with international law.

According to Professor Aroney, correctly interpreting section 116 is of fundamental importance, because to interpret it as protecting merely individual rights has the potential to severely weaken religious freedom. Here is Professor Aroney (footnotes omitted):

Efforts to impose an individualistic view of human rights … continue to be made by groups such as the Discrimination Law Experts Group, who argue that the rights of religious organisations engaging in ‘public sphere activities’ should simply be trumped by the rights of individuals ‘to be treated in a non-discriminatory way.’ The Public Interest Law Clearing House and the Human Rights Law Resource Centre have argued similarly, maintaining that permanent religious exceptions to antidiscrimination laws facilitate and condone discrimination by protecting ‘traditional social structures and hierarchies’. Although the context is that anti-discrimination laws apply only in certain ‘public’ contexts, the reasoning is not so limited. These arguments are not unlike that of Stephen Macedo, who advocates that modern liberalism must ‘constitute the private realm in its image’ by forcing citizens ‘to observe its limits’ and ‘pursue its aspirations’. Such persons are to be actively coerced, Macedo candidly asserts, ‘to help ensure that freedom is what they want’, even in ‘their most “private beliefs”’.

 The underlying individualism of this line of argument has been made clear by Margaret Thornton, who has argued that although the ICCPR protects the right to exercise freedom of religion ‘in association with others’, this right not only has to be balanced against the competing rights to equal treatment and non-discrimination, but all such rights need to be understood, fundamentally, as the rights of human beings – not of corporations – and so it is a ‘logical fallacy to extrapolate from an individual’s private beliefs to an impersonal for-profit corporation’. Thornton’s argument shows the weakness of religious freedom rights if they are conceptualised in reductively individualistic terms. This is because one would have to show, first, that certain individuals have particular religious convictions that are legally protected and, second, that these same individual rights are being expressed through the religious corporation’s rules or practices. If religious rights are conceptualised as inherently ‘private’ in this sense, it will be that much more difficult to establish that such rights are really being exercised as private rights in various domains of ‘public’ or ‘quasipublic’ life. But on the contrary, as has been seen, international human rights principles, while certainly premised on the rights of the ‘human person’, are not exclusively concerned to protect only individual rights or only private expressions of religious conviction.

Another problem with individualised conceptions of human rights in this domain is that such rights, although originally conceived as rights against the state, can nonetheless ‘double up as rights against everyone’. Accordingly, as Julian Rivers has shown, there are some for whom it is not sufficient that an individual has a right of ‘exit’ from his or her religious community. Rather, there is evidence ‘of a growing assumption that everyone who wishes should be able to join any religious body’ and that ‘membership tests are suspect’. The underlying assumption, in other words, is that ‘the preservation of religious identity on the part of civil society groups needs justification against the individual who does not share that identity’, even though to adopt such an approach ‘is potentially destructive of the identity of [all] non-State collectivities’. For if any individual can decide whether he or she qualifies for membership of an organisation, no organisation will be able to maintain its distinctive identity.

This reductio ad absurdum suggests that a radical individualist conception of religious liberty is simply incompatible with the existence of religious associations and communities as distinguishable groups within a society. Against such a view, William Galston has observed:

 It is not obvious as an empirical matter that civil society organisations within liberal democracies must be organised along liberal democratic lines… A liberal policy guided … by a commitment to moral and political pluralism will be parsimonious in specifying binding public principles and cautious about employing such principles to intervene in the internal affairs of civil associations. It will rather pursue a policy of maximum feasible accommodation, limited only by the core requirements of individual security and civic unity. That there are costs to such a policy cannot reasonably be denied. It will permit internal associational practices (e.g. patriarchal gender relations) of which many disapprove. It will allow many associations to define their membership in ways that may be viewed as restraints on individual liberty … Unless liberty – individual and associational – is to be narrowed dramatically, however, we must accept these costs.

 A reductively individualist conception of religious freedom is obviously opposed to the capacity of such groups to determine their own conditions of membership, but an excessively narrow associational conception may also have this effect, for there are many social groupings and traditional communities, including religions, in which membership does not initially arise by deliberate choice but by birth and circumstance. Whether voluntaristic or otherwise, unless such associations and communities are going to be understood, following Thomas Hobbes, as ‘worms in the entrails’ of the body politic, we need to recognise, as Harold Laski argued, that they are ‘as real, as primary, and self-sufficing as the whole [society]’. This does not mean of course that communal religious rights must always prevail. But it does mean that they ought to be treated with the same respect as the rights of individuals. As such, from a liberal point of view, what is most crucial in order to protect individuals is not the right to join (or remain) within a group, but the right to exit it. On this approach, the question of the legitimacy of a law which regulates a religious association becomes one of determining what conditions, if any, must accompany an effective exit right, understood to include the rights to associate, disassociate or not associate with a particular religious community on terms offered by that community. Alternatively, from a more communitarian point of view, what matters is that a religious group genuinely benefits its members and does not inappropriately interfere with the legitimate interests of those outside the group. These are large questions, of course, which lie beyond the scope of this article, the point of which has been to establish the associational and communal dimensions of religious freedom as a matter of principle.