DeGirolami at University of San Diego Law School Conference on Free Exercise

I’m here in lovely and warm San Diego (Mark went east and I went west) attending this conference organized by Larry Alexander and Steve Smith’s impressive Institute for Law and Religion at the University of San Diego Law School. Here is the conference description:

Hosanna-Tabor and/or Employment Division v. Smith?

The Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran School v. EEOC raised crucial questions. Was the decision reconcilable with the doctrine articulated in Employment Division v. Smith? If so, how? Did Hosanna-Tabor represent a passing anomaly or a major new direction in the constitutional jurisprudence of religious freedom? Such questions are still very much with us, and they can be addressed both normatively and descriptively and from a variety of standpoints: conventional legal analysis, history, political science, or political theory. This conference will consider such questions and their significance for the future of religious freedom in this country.

And here’s the abstract for my paper, Free Exercise by Moonlight (more on it by and by):

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate. Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its rhetorical hostility to religious accommodation—its admonitions about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself”—has ironically become more apt as a description of the multiplying number of secular interests deemed legally cognizable than of religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories that expound on the legally cognizable harms—dignitary and otherwise—to third parties that result from religious accommodation. These theories both reflect the enlarged ambit of state authority and defend novel understandings of the limits of religious accommodation. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

Around the Web This Week

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

“Religion and National Identities in an Enlarged Europe” (Spohn et al., eds.)

This May, Palgrave Macmillan will release “Religion and National Identities in an Enlarged Europe” edited by Willfried Spohn (University of Wroclaw, Poland), Matthias Koenig, and Wolfgang Knöbl (Georg-August-University Göttingen, Germany).  The publisher’s description follows:

This volume analyzes the changing relationships between religion and national identity in the course of European integration. Presenting results from cross-national comparative research on elite discourse, media debates and public opinions in Germany, Poland, Greece and Turkey from 1990-2010, it examines how accelerated European integration and Eastern enlargement have affected religious markers of collective identity.

Critically engaging with secularist assumptions in the social scientific literatures on nationalism and European integration, the collection demonstrates that the Europeanization of collective identities does not necessarily imply reducing the salience of religion. Rather, the emergence of a European polity can prompt the reactive reaffirmation of religious nationalisms and lead to the re-embedding of religious components of collective identity within broader transnational frameworks. As the contributions in this book show, explaining such changing relationships between religion and national identity requires attention to long-standing civilizational traditions, short-term dynamics of symbolic boundary-making as well as institutional trajectories of state-church-relations.

Spiegel, “Young Islam”

This May, Princeton University Press will release “Young Islam: The New Politics of Religion in Morocco and the Arab World” by Avi Max Spiegel (University of San Diego).  The publisher’s description follows:

Young IslamToday, two-thirds of all Arab Muslims are under the age of thirty. Young Islam takes readers inside the evolving competition for their support—a competition not simply between Islamism and the secular world, but between different and often conflicting visions of Islam itself.

Drawing on extensive ethnographic research among rank-and-file activists in Morocco, Avi Spiegel shows how Islamist movements are encountering opposition from an unexpected source—each other. In vivid and compelling detail, he describes the conflicts that arise as Islamist groups vie with one another for new recruits, and the unprecedented fragmentation that occurs as members wrangle over a shared urbanized base. Looking carefully at how political Islam is lived, expressed, and understood by young people, Spiegel moves beyond the top-down focus of current research. Instead, he makes the compelling case that Islamist actors are shaped more by their relationships to each other than by their relationships to the state or even to religious ideology. By focusing not only on the texts of aging elites but also on the voices of diverse and sophisticated Muslim youths, Spiegel exposes the shifting and contested nature of Islamist movements today—movements that are being reimagined from the bottom up by young Islam.

The first book to shed light on this new and uncharted era of Islamist pluralism in the Middle East and North Africa, Young Islam uncovers the rivalries that are redefining the next generation of political Islam.

CLR Participates in International Moot Court in Venice

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Posing a Question in Venice

As regular readers know, I’ve spent this week at a terrific new program at the Fondazione Marcianum in Venice, an international moot court competition on law and religion. The Marcianum gathered law student teams from the US and Europe to argue a hypothetical case before two courts, the European Court of Human Rights and the US Supreme Court. Along with Notre Dame’s Bill Kelley and Judge (and CLR Board member) Richard Sullivan of the SDNY, I served as a judge on the American court. That’s us, in action, above. Mark Hill of Cardiff University, Renata Uitz of Central European University, and Louis-Leon Christians of Catholic University of Louvain made up the European side. Both courts were ably assisted by PhD students from the Marcianum, who served as our shadow clerks, helping us with research and the development of our ideas.

The case was a very topical one. A private, family owned firm had dismissed an employee for making a negative comment about creationism, in violation of the business’s code of conduct, which prohibited anti-religious statements. In the European version, the domestic courts ruled in favor of the firm, and the employee brought a claim under Article 9 of the European Convention on Human Rights. In the American version, the employee sued for employment discrimination, arguing that he had been dismissed on account of his religious views; the employer maintained that, even if Title VII applied, RFRA allowed for an accommodation in these circumstances.

Lots of issues here, and the student teams did a remarkable job addressing them. Special credit goes to the two Italian teams, from the Universities of Milan and Macerata,who had to learn an entirely new legal system and argue in a foreign language. In the end, our panel gave the 500 euro award for best team to the entrants from Emory Law School. They did their school, and especially Emory’s Center for the Study of Law and Religion, proud. On the European side, the award went to the team from Inner Temple.

This was an absolutely wonderful event. It was a lot of work for the students and the judges (not that I’m complaining!), but extremely valuable and tremendous fun. I imagine the most valuable aspect, for the students, was learning how another legal system would handle these issues. The Americans were struck by the argument style in the European Court — 30 minutes of presentation followed by five minutes to answer questions from the bench — and the Europeans were surprised at the more assertive, freewheeling style of argument in an American court. But they adjusted very well.

I hope the Marcianum continues this event. Law and religion has gone global, and comparative law is an increasingly important component of a legal education on both sides of the Atlantic. I’ll write more when I return to NY, but, for now, a very warm thank you to the Marcianum for hosting this event, and especially to Professor Andrea Pin, who invited me and had a major role in the entire enterprise. And thanks to the readers of our blog who stopped by to say hello!