Welcome to Nate Oman!

A warm welcome to Professor Nate Oman, who will be our guest for the month. nbomanNate teaches at the William & Mary Law School, and his most recent publications include International Legal Experience and the Mormon Theology of the State, 1945-2012, 100 Iowa L. Rev. 715 (2015) and an excellent co-authored piece on the Hobby Lobby case, Hobby Lobby, Corporate Law, and the Theory of the Firm: Why For-Profit Corporations are RFRA Persons, 124 Harv. L. Rev. F. 273 (2014) (with Alan Meese).

Nate has just finished a book manuscript on the philosophy of contract law that offers doux commerce as a justification for contract law. He is writing about different theories of how the law should structure the relationship between commerce and religion. His first post with us, Indiana and Doux Commerce, is up today. Great to have you with us, Nate.

Around the Web this Week

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

Discussion on “The Gathering Storm: Religious Persecution and Legislative Responses” (Georgetown University, April 15)

On April 15, the Religious Freedom Project, in cooperation with Baylor University’s Institute for Studies of Religion, will host a discussion “The Gathering Storm: Religious Persecution and Legislative Responses:”

Two of the most prominent advocates for advancing religious freedom in foreign policy, Baroness Elizabeth Berridge and former Congressman Frank Wolf, will discuss how Western democracies can advance international religious freedom. They will also explore how internal disarray over the meaning and reach of religious liberty affects the ability of nations to advance religious freedom in their foreign policies. The Berkley Center’s Tom Farr will moderate.

Find more information and RSVP here.

Rieck, “The Shias of Pakistan: An Assertive and Beleaguered Minority”

This month, Oxford University Press will release “The Shias of Pakistan: An Assertive and Beleaguered Minority” by Andreas Rieck. The publisher’s description follows:

The Shias of Pakistan are the world’s second largest Shia community after that of Iran, but comprise only 10-15 per cent of Pakistan’s population. In recent decades Sunni extremists have increasingly targeted them with hate propaganda and terrorism, yet paradoxically Shias have always been fully integrated into all sections of political, professional and social life without suffering any discrimination. In mainstream politics, the Shia- Sunni divide has never been an issue in Pakistan.

Shia politicians in Pakistan have usually downplayed their religious beliefs, but there have always been individuals and groups who emphasised their Shia identity, and who zealously campaigned for equal rights for the Shias wherever and whenever they perceived these to be threatened. Shia ‘ulama’ have been at the forefront of communal activism in Pakistan since 1949, but Shia laymen also participated in such organisations, as they had in pre-partition India.

Based mainly on Urdu sources, Rieck’s book examines, first, the history of Pakistan’s Shias, including their communal organisations, the growth of the Shia ‘ulama’ class, of religious schools and rivalry between ” and popular preachers; second, the outcome of lobbying of successive Pakistan governments by Shia organisations; and third, the Shia-Sunni conflict, which is increasingly virulent due to the state’s failure to combat Sunni extremism.

Destivelle, “The Moscow Council (1917–1918): The Creation of the Conciliar Institutions of the Russian Orthodox Church”

In May, the University of Notre Dame Press will release “The Moscow Council (1917–1918): The Creation of the Conciliar Institutions of the Russian Orthodox Church” by Hyacinthe Destivelle, O.P. (Oriental Section of the Pontifical Council for Promoting Christian Unity at the Vatican). The publisher’s description follows:

By the early twentieth century, a genuine renaissance of religious thought and a desire for ecclesial reform were emerging in the Russian Orthodox Church. With the end of tsarist rule and widespread dissatisfaction with government control of all aspects of church life, conditions were ripe for the Moscow Council of 1917-1918 to come into being.

The council was a major event in the history of the Orthodox Church. After years of struggle for reform against political and ecclesiastical resistance, the bishops, clergy, monastics, and laity who formed the Moscow Council were able to listen to one other and make sweeping decisions intended to renew the Russian Orthodox Church. Council members sought change in every imaginable area—from seminaries and monasteries, to parishes and schools, to the place of women in church life and governance. Like Vatican II, the Moscow Council emphasized the mission of the church in and to the world.

Destivelle’s study not only discusses the council and its resolutions but also provides the historical, political, social, and cultural context that preceded the council. In the only comprehensive and probing account of the council, he discusses its procedures and achievements, augmented by substantial appendices of translated conciliar documents.

Tragically, due to the Revolution, the council’s decisions could not be implemented to the extent its members hoped. Despite current trends in the Russian church away from the Moscow Council’s vision, the council’s accomplishments remain as models for renewal in the Eastern churches.

 

Indiana and Doux Commerce

Amidst the often disappointingly vacuous cacophony over Indiana’s recently passed RFRA legislation, Jacob Levy, a political philosopher at McGill, raised the fascinating question of how we ought to think about the relationship between religious freedom and commerce.

Levy raises two sets of concerns with Indiana’s law, one of which is largely illusory and one of which merits serious thought. The illusory concern is that the Indiana RFRA is a radical innovation that by applying the compelling state interest test to private causes of action threatens to undermine the basic legal infrastructure – property, contract, and tort – of the market.

It’s important to remember that we have decades of experience applying some version of the compelling state interest test to religious claims. We have the nearly three decades from Sherbert to Smith as a matter of constitutional law, and then the more than two decades from the passage of RFRA to the present as a matter of federal statutory law. Beginning in the mid-1990s some states began passing their own RFRAs, and during this entire period numerous states applied some version of the compelling state interest test as a matter of state constitutional law. If antinomian chaos were going to break forth one would think that after a half century it already would have happened.

In terms of concrete conflicts between RFRAs and basic private law, it seems to me that the most dangerous ones would be cases involving bodily harm or the invasion or destruction of property. I think that in cases involving bodily integrity, courts would have no problem saying that the state had a compelling government interest in protecting bodily integrity and in providing recourse to those suffering bodily injury. I think that for most property cases, we can dispose of them by saying that property law places no substantial burden on religious exercise. Saying that you have to build your sukkah on in your yard rather than my yard is not a substantial burden. There might be issues if we have a property owner who for some reason owned religiously significant land, as has been the case with some Native American claims against the federal government. Depending on the facts, I am not convinced that chaos would result if we granted an exemption from certain rules of property law. To give an analogy, lots of private property owners have land that contains graves. In many states there is a common law doctrine granting descendants an easement on the land to visit the graves. The market has not been threatened.

His rather fanciful legal concerns aside, however, Levy raises a deeper issue, one that deserve far more attention that it has received. His concern is with the way in which allowing religious believers to claim exemptions from otherwise applicable laws might inject the question of religious identity into commerce.  He quotes Voltaire’s famous statement of the doux commerce argument:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

Voltaire’s insight – one he shared with thinkers such as Montesquieu and Adam Smith – was that markets are more than simply a mechanism for organizing economic production. They are also moral and political institutions that structure relationships and inculcate certain moral habits. For the eighteenth-century apologists for commerce, the effect of markets in this area was largely beneficent. They allowed those of very differing religious convictions to peacefully cooperate and tended to inculcate habits of tolerance and, if not respect, at least peaceful co-existence.

Levy suggests that by allowing religious people to claim exemptions from the demands of contract or property, RFRA statutes might undermine this order. As explained above, I think that this is the wrong thing to worry about. The scope of anti-discrimination laws, however, does raise this issue. As near as I can tell, Levy himself favors rather narrow antidiscrimination laws on largely libertarian grounds. What happens, however, when we apply the doux commerce argument itself to the question of antidiscrimination laws?

Normally we think of contract as structuring relationships in the market. Antidiscrimination laws, however, deprive certain market participants of the ability to avoid contracting. This raises two questions. First, does such forced contracting undermine doux commerce by replacing contractual norms with non-contractual equality norms, or does it enhance doux commerce by requiring people to trade across tribal and religious boundaries? Second, when thinking about religion in our society, how desirable is the Royal Exchange of Voltaire? On one hand it tends to promote tolerance and peacefully mediate religious pluralism. At the end of the day, however, Voltaire was no great friend of religious faith and for him one of the great attractions of commerce was the corrosive effect he hoped that it would have on religious communities, which he wished to see submerged in the universal, secular identity of citizenship.