Marsden, “The Crisis of Religious Toleration in Imperial Russia”

This month, Oxford University Press releases “The Crisis of Religious Toleration in Imperial Russia: Bibikov’s System for the Old Believers, 1841-1855” by Thomas Marsden (University College London). The publisher’s description follows:

This book is about an unprecedented attempt by the government of Russia’s Tsar Nicholas I (1825-1855) to eradicate what was seen as one of the greatest threats to its political security: the religious dissent of the Old Believers. The Old Believers had long been reviled by the ruling Orthodox Church, for they were the largest group of Russian dissenters and claimed to be the guardians of true Orthodoxy; however, their industrious communities and strict morality meant that the civil authorities often regarded them favourably. This changed in the 1840s and 1850s when a series of remarkable cases demonstrated that the existing restrictions upon the dissenters’ religious freedoms could not suppress their capacity for independent organisation. Finding itself at a crossroads between granting full toleration, or returning to the fierce persecution of earlier centuries, the tsarist government increasingly inclined towards the latter course, culminating in a top secret ‘system’ introduced in 1853 by the Minister of Internal Affairs Dmitrii Bibikov.

The operation of this system was the high point of religious persecution in the last 150 years of the tsarist regime: it dissolved the Old Believers’ religious gatherings, denied them civil rights, and repressed their leading figures as state criminals. It also constituted an extraordinary experiment in government, instituted to deal with a temporary emergency. Paradoxically the architects of this system were not churchmen or reactionaries, but representatives of the most progressive factions of Nicholas’s bureaucracy. Their abandonment of religious toleration on grounds of political intolerability reflected their nationalist concerns for the future development of a rapidly changing Russia. The system lasted only until Nicholas’s death in 1855; however, the story of its origins, operation, and collapse, told for the first time in this study, throws new light on the religious and political identity of the autocratic regime and on the complexity of the problems it faced.

Ansari, “Islam and Nationalism in India”

In November, Routledge will release “Islam and Nationalism in India: South Indian Contexts” by M.T. Ansari (University of Hyderabad, India). The publisher’s description follows:

Islam in India, as elsewhere, continues to be seen as a remainder in its refusal to “conform” to national and international secular-modern norms. Such a general perception has also had a tremendous impact on the Muslims of the Indian subcontinent, who as individuals and communities have been shaped and transformed over centuries of socio-political and historical processes, by eroding their world-view and steadily erasing their life-worlds.

This book traces the spectral presence of Islam across narratives to note that difference and diversity, demographic as well as cultural, can be espoused rather than excised or exorcized. Focusing on Malabar – home to the Mappila Muslim community in Kerala, South India – and drawing mostly on Malayalam sources, the author investigates the question of Islam from various angles by constituting an archive comprising popular, administrative, academic, and literary discourses. The author contends that an uncritical insistence on unity has led to a formation in which “minor” subjects embody an excess of identity, in contrast to the Hindu-citizen whose identity seemingly coincides with the national. This has led to Muslims being the source of a deep-seated anxiety for secular nationalism and the targets of a resurgent Hindutva in that they expose the fault-lines of a geographically and socio-culturally unified nation.

An interdisciplinary study of Islam in India from the South Indian context, this book will be of interest to scholars of modern Indian history, political science, literary and cultural studies, and Islamic studies.

Ballard and Sincere Religious Beliefs, Part II

In an earlier post, we considered United States v. Ballard and its attempt to draw a workable line between protecting religious exercise and enforcing the law.

That case involved fraud and taking money from others, and the court distinguished between beliefs (whose veracity could not be questioned), and whether the defendants actually believed (if not, they were committing fraud). In the world of the 1940s, and its relatively monolithic Christian culture, it is not hard to understand how the jury reasoned its way to a conviction. One should not commit fraud whatever one’s religious beliefs.

But in the contemporary administrative state those questions are much more complicated, both because of the reach of the law and our much more openly pluralistic society. Given the myriad aims and interests the government now purports to serve, the chances of Ballard being applied more broadly increases. The danger of outright religious persecution is not yet as dire as Justice Jackson contemplated in his Ballard dissent, but under this logic the substantial burden part of the balancing test seems less secure.

There are a number of ways a court might assess whether the sincerity of religious belief applies to a given regulatory situation.

A court might conduct a fact finding exercise to see whether the religious beliefs, even if sincere, could actually apply to the law at issue. This seems to be the process followed in Zubik. But the court disagreed with the objectors’ view that accommodation would implicate them in activity they believed morally wrong. One could take the Jackson position, that a court cannot question either the substance of the beliefs or whether defendants actually believe them. People often believe things that seem outlandish to others, and to draw the line where the Ballard majority did would invite unwelcome scrutiny of religious conduct.

But another way is to look at the sincerity of the government’s beliefs, which has the advantage of being compatible with the current balancing test framework for analyzing substantial burden, is to look at the government’s sincerity. RFRA does part of the work. As the Supreme Court has stated, “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.” But that does not go to whether the government’s interest is, in fact, compelling. The law of free speech has some categories of compelling interests that justify narrowly-tailored restrictions on speech. Religious freedom cases, generally, have not articulated similar standards. Courts have often just assumed that the interest the government asserts is compelling, even if it is pitched at a high level of generality, such as “health” or “equality.” Even the contraceptive mandate cases focus more often on the least restrictive means part of the balancing test, but do not question the legitimacy of the governmental interests. The mandate cases have the opportunity to declare that generic interests, as applied to particular plaintiffs, are not sufficiently clear to be compelling without further evidence of what those interests actually mean.

Sutto, “Loyal Protestants & Dangerous Papists”

In November, the University of Virginia Press will release “Loyal Protestants & Dangerous Papists: Maryland and the Politics of Religion in the English Atlantic, 1630-1690,” by Antoinette Sutto (University of Mississippi).  The publisher’s description follows:

Loyal Protestants and Dangerous Papists analyzes the vibrant and often violent political culture of seventeenth-century America, exploring the relationship between early American and early modern British politics through a detailed study of colonial Maryland. Seventeenth-century Maryland was repeatedly wracked by disputes over the legitimacy of the colony’s Catholic proprietorship. The proprietors’ strange policy of religious liberty was part of the controversy, but colonists also voiced fears of proprietary conspiracies with Native Americans and claimed the colony’s ruling circle aimed to crush their liberties as English subjects. Conflicts like these became wrapped up in disputes less obviously political, such as disagreements over how to manage the tobacco trade, without which Maryland’s economy would falter.

Antoinette Sutto argues that the best way to understand this strange mix of religious, economic, and political controversies is to view it with regard to the disputes over the role of the English church, the power of the state, and the ideal relationship between the two—disputes that tore apart the English-speaking world twice over in the 1600s. Sutto contends that the turbulent political history of early Maryland makes most sense when seen in an imperial as well as an American context. Such an understanding of political culture and conflict in this colony offers a window not only into the processes of seventeenth-century American politics but also into the construction of the early modern state. Examining the dramatic rise and fall of Maryland’s Catholic proprietorship through this lens, Loyal Protestants and Dangerous Papists offers a unique glimpse into the ambiguities and possibilities of the early English colonial world.

Schaposchnik, “The Lima Inquisition”

In October, the University of Wisconsin Press will release “The Lima Inquisition:
The Plight of Crypto-Jews in Seventeenth-Century Peru,” by Ana E. Schaposchnik (DePaul University).  The publisher’s description follows: 

The Holy Office of the Inquisition (a royal tribunal that addressed issues of heresy and offenses to morality) was established in Peru in 1570 and operated there until 1820. In this book, Ana E. Schaposchnik provides a deeply researched history of the Inquisition’s Lima Tribunal, focusing in particular on the cases of persons put under trial for crypto-Judaism in Lima during the 1600s.

Delving deeply into the records of the Lima Tribunal, Schaposchnik brings to light the experiences and perspectives of the prisoners in the cells and torture chambers, as well as the regulations and institutional procedures of the inquisitors. She looks closely at how the lives of the accused—and in some cases the circumstances of their deaths—were shaped by actions of the Inquisition on both sides of the Atlantic. She explores the prisoners’ lives before and after their incarcerations and reveals the variety and character of prisoners’ religiosity, as portrayed in the Inquisition’s own sources. She also uncovers individual and collective strategies of the prisoners and their supporters to stall trials, confuse tribunal members, and attempt to ameliorate or at least delay the most extreme effects of the trial of faith.

The Lima Inquisition also includes a detailed analysis of the 1639 Auto General de Fe ceremony of public penance and execution, tracing the agendas of individual inquisitors, the transition that occurred when punishment and surveillance were brought out of hidden dungeons and into public spaces, and the exposure of the condemned and their plight to an avid and awestricken audience. Schaposchnik contends that the Lima Tribunal’s goal, more than volume or frequency in punishing heretics, was to discipline and shape culture in Peru.

Gamwell, “Religion Among We the People”

In November, SUNY Press will release “Religion Among We the People: Conversations on Democracy and the Divine Good” by Franklin I. Gamwell (University of Chicago). The publisher’s description follows:

Franklin I. Gamwell holds that democracy with religious freedom is dependent on metaphysical theism. Democratic politics can be neutral to all religious convictions only if its constitution establishes a full and free discourse about the ultimate terms of justice and their application to decisions of the state, and the divine good is the true ground of justice. Notably, Gamwell’s view challenges virtually all current accounts of democracy with religious freedom. This uncommon position emerges through a series of essays in which Gamwell engages a variety of conversation partners, including Thomas Jefferson, David Strauss, Abraham Lincoln, Jürgen Habermas, Alfred North Whitehead, Reinhold Niebuhr, and Iris Murdoch. Discussions of Jefferson, Lincoln, and the US Constitution illustrate the promise of neoclassical metaphysics as a context for interpreting US history. Gamwell then defends his metaphysics against both modern refusals of metaphysics and accounts of ultimate reality offered by Niebuhr and Murdoch.

Ballard and “Sincere” Religious Beliefs

Marc DeGirolami kindly referred me to United States v. Ballard on the question of how, or whether, courts should analyze a person’s “sincere” religious beliefs. The defendants in Ballard had been convicted of fraud. The misrepresentations concerned the religious “I AM” movement, which the Ballards had founded. The court instructed the jury not to consider whether the defendants’ beliefs were true or false, but whether the defendants believed them to be true. If so, they were to be acquitted. The jury convicted them of a scheme to defraud. The Court of Appeals reversed, arguing that the question of truth or falsity also needed to be presented to the jury.

The Supreme Court reversed, and found the district court had properly excluded the question of truth from the jury. The majority opinion (written by Justice Douglas) affirmed that “[t]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.”  Yet the majority found that the defendants could be convicted of fraud for not really believe what they said, even if the content of that belief was outside judicial notice. Justice Jackson, in dissent, stated that he could “not see how we can separate what is believed from what is ‘believable’” and warned of the potential for religious persecution. He would have affirmed the reversal of the conviction.

Ballard is regularly cited (for example in the contraceptive mandate cases) for the proposition that courts cannot question the sincerity of religious beliefs. That is true, but the result in Ballard was upheld nonetheless. The Supreme Court determined that a court could rule on the acts of the plaintiffs (there, misrepresentations) without caring whether their belief was true. Cases like the Third Circuit Zubik case are doing something similar when they hold that “free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise.” There, the Court found that requiring religious institutions to fill out the accommodation form was not prohibited, because it disagreed that doing so interfered with the exercise of their religious beliefs, as the Court interpreted them.

So although the strict terms of the balance-shifting test may seem to support those seeking the accommodation, that is only a matter of drafting a statute that is better tailored to further government interests. The more basic question – who gets to decide “substantial burden” and on what grounds – still weighs against believers.

Around the Web This Week

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

“Beyond Hybridity and Fundamentalism” (Khan, ed.)

In August, the Oxford University Press released “Beyond Hybridity and Fundamentalism: Emerging Muslim Identity in Globalized India,” edited by Tabassum Ruhi Khan (University of California, Riverside).  The publisher’s description follows:

The question of identity, and especially its formation among youth, has received significant academic attention as our worlds become intricately and unpredictably connected through satellite televisions, mobile telephones, Internet, and social networking platforms. Marking a distinct addition to such scholarship, this volume is an ethnographic study of the under-investigated issue of Indian Muslim youth’s emergent subjectivity in a media-saturated globalized Indian society.

The author develops the idea of ‘convoluted modernity’ to explain Muslim youth’s reactions to multifarious and divergent influences both from the East as well as the West shaping their everyday life. The concept illustrates how Muslim youths’ ideas about self and community draw equally on MTV as on Peace TV to create a complex truck between consumerist hedonism and globalized Islam.

Introducing a new perspective to studies on globalization, media, and cultural politics, this book shows how interpolation of local and global in the accelerated virtual spheres, and their contextual interpretation within an expanding economy, notwithstanding Muslim youth’s disadvantaged position, shape alternate modernities rife with ambiguities and beyond binaries of progress and regression.