Posted on by Christina Vlahos

Lefebvre & Brodeur, “Public Commissions on Cultural and Religious Diversity”

This month, Routledge releases “Public Commissions on Cultural and Religious Diversity: Comparisons, Challenges and Impact,” by Solange Lefebvre (University of Montreal) and Patrice Brodeur (KAICIID).  The publisher’s description follows:

The question of how to manage cultural and religious diversity has found expression in several countries through the creation of government-initiated public commissions. logo-rt-cThese commissions have produced carefully written reports on the contexts and challenges regarding national identity and the impact of greater diversity on the law, public institutions, integration and religion. Analysing the work of public commissions in Britain, France, Belgium, and Canada, Australia, New Zealand, Italy, Singapore and Norway the book reflects on how they were formed, the way they framed religious and cultural diversity, the questions and controversies they examined, the key political actors involved, public and media reception, legal challenges and the impact they had both on public policy and in concrete situations such as work, schools and health care. The reports represent a rich body of work charting the fundamental questions nations face about their nature, history, and future while the different ways they were initiated and their impact on peoples’ lives tells us much about different approaches to the issues of cultural identity between countries.

Posted on by Christina Vlahos

Mayrl, “Secular Conversions”

In August, Cambridge University Press released “Secular Conversions: Political Institutions and Religious Education in the United States and Australia, 1800–2000,” by Damon Mayrl (Universidad Carlos III de Madrid).  The publisher’s description follows: 

Why does secularization proceed differently in otherwise similar countries? Secular Conversions demonstrates that the institutional structure of the state is a key factor41wktwmgj0l-_sx329_bo1204203200_ shaping the course of secularization. Drawing upon detailed historical analysis of religious education policy in the United States and Australia, Damon Mayrl details how administrative structures, legal procedures, and electoral systems have shaped political opportunities and even helped create constituencies for secular policies. In so doing, he also shows how a decentralized, readily accessible American state acts as an engine for religious conflict, encouraging religious differences to spill into law and politics at every turn. This book provides a vivid picture of how political conflicts interacted with the state over the long span of American and Australian history to shape religion’s role in public life. Ultimately, it reveals that taken-for-granted political structures have powerfully shaped the fate of religion in modern societies.

Posted on by Liam Ray

Around the Web this Week

Here is a look at some law and religion news stories from around the web this week:

Posted on by L&R Forum

Bradley: Religious Liberty vs. Moral Autonomy

All this month, the Law and Religion Forum hosts an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this post, Gerard V. Bradley (Notre Dame) responds to Muñoz’s arguments. For other posts in the series, please click here. 

One need not be a hide-bound originalist to delight in Phillip Munoz’ attentiveness to the letter of the Constitution. He is quite right to say that the First Amendment enacts “an absolute ban” on something, that its character is “categorical”; after all, “Congress shall make no law.” Munoz is right again to count this character as probative evidence of the “jurisdictional” understanding of the Free Exercise Clause which he defends. He is right also to see that any such “categorical” liberty has to be limited to a set of specific acts, such as worship and confessions of faith, lest letting the spirit roam where it wills (recall: no law!) does not produce anarchy, even as it limits government in favor of each individual’s direction of his or her religious life.

Munoz is also right about the Smith case and thus the original understanding of the Free Exercise Clause. The Court in Smith spent most of its time arguing against the “exemptionist” (Munoz’ term) interpretation of Free Exercise, minted 27 years earlier in Sherbert v. Verner. But without quite identifying it as such, the Court hit upon the meaning of Free Exercise apprehended by the  ratifiers:

[A]ssembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation . . . [A] state would be “prohibiting the free exercise [of religion]” if it sought to ban such acts . . . only when they are engaged in for religious reasons, or only because of the religious belief that they display.

The decisive feature of Free Exercise, then, is not exemptionism’s idealized “neutrality of effect,” but rather what might be called “neutrality of reasons.” John Locke provided a Read more

Posted on by Liam Ray

Snyder, “Black Earth”

This month, Penguin Random House Press releases Black Earth: The Holocaust as History and Warning, by Timothy Snyder (Yale). The publisher’s description follows:

black-eartgIn this epic history of extermination and survival, Timothy Snyder presents a new explanation of the great atrocity of the twentieth century, and reveals the risks that we face in the twenty-first.  Based on new sources from eastern Europe and forgotten testimonies from Jewish survivors, Black Earth recounts the mass murder of the Jews as an event that is still close to us, more comprehensible than we would like to think, and thus all the more terrifying.

The Holocaust began in a dark but accessible place, in Hitler’s mind, with the thought that the elimination of Jews would restore balance to the planet and allow Germans to win the resources they desperately needed.  Such a worldview could be realized only if Germany destroyed other states, so Hitler’s aim was a colonial war in Europe itself.  In the zones of statelessness, almost all Jews died.  A few people, the righteous few, aided them, without support from institutions.  Much of the new research in this book is devoted to understanding these extraordinary individuals.  The almost insurmountable difficulties they faced only confirm the dangers of state destruction and ecological panic.  These men and women should be emulated, but in similar circumstances few of us would do so.

By overlooking the lessons of the Holocaust, Snyder concludes, we have misunderstood modernity and endangered the future.  The early twenty-first century is coming to resemble the early twentieth, as growing preoccupations with food and water accompany ideological challenges to global order.  Our world is closer to Hitler’s than we like to admit, and saving it requires us to see the Holocaust as it was — and ourselves as we are.  Groundbreaking, authoritative, and utterly absorbing, Black Earth reveals a Holocaust that is not only history but warning.

Posted on by Liam Ray

Aljunied, “Muslim Cosmopolitanism”

In November, Edinburgh University Press will release Muslim Cosmopolitanism: Southeast Asian Islam in Comparative Perspective by Khairudin Aljunied (National University of Singapore). The publisher’s description follows:

Muslim CosmoCosmopolitan ideals and pluralist tendencies have been employed creatively and adapted carefully by Muslim individuals, societies and institutions in modern Southeast Asia to produce the necessary contexts for mutual tolerance and shared respect between and within different groups in society. Organised around six key themes that interweave the connected histories of three countries in Southeast Asia – Singapore, Malaysia and Indonesia – this book shows the ways in which historical actors have promoted better understanding between Muslims and non-Muslims in the region. Case studies from across these countries of the Malay world take in the rise of the network society in the region in the 1970s up until the early 21st century, providing a panoramic view of Muslim cosmopolitan practices, outlook and visions in the region.

Posted on by Liam Ray

Saccenti, “Debating Medieval Natural Law”

In October, the University of Notre Dame Press will release Debating Medieval Natural Law: A Survey by Riccardo Saccenti (University of Bologna). The publisher’s description follows:

debating-medieval-natural-lawIn Debating Medieval Natural Law: A Survey, Riccardo Saccenti examines and evaluates the major lines of interpretation of the medieval concepts of natural rights and natural law within the twentieth and early twenty-first centuries and explains how the major historiographical interpretations of ius naturale and lex naturalis have changed. His bibliographical survey analyzes not only the chronological evolution of various interpretations of natural law but also how they differ, in an effort to shed light on the historical debate and on the medieval roots of modern human rights theories.

Saccenti critically examines the historical analyses of the major historians of medieval political and legal thought while addressing how to further research on the subject. His perspective interlaces different disciplinary points of view: history of philosophy, as well as history of canon and civil law and history of theology. By focusing on a variety of disciplines, Saccenti creates an opportunity to evaluate each interpretation of medieval lex naturalis in terms of the area it enlightens and within specific cultural contexts. His survey is a basis for future studies concerning this topic and will be of interest to scholars of the history of law and, more generally, of the history of ideas in the twentieth century.

Posted on by Liam Ray

Salomon, “For Love of the Prophet”

In October, Princeton University Press will release For Love of the Prophet: An Ethnography of Sudan’s Islamic State by Noah Salomon (Carleton College). The publisher’s description follows:

For some, the idea of an Islamic state serves to fulfill aspirations for cultural sovereignty and new forms of ethical political practice. For others, it violates the properfor-love-of-the-prophet domains of both religion and politics. Yet, while there has been much discussion of the idea and ideals of the Islamic state, its possibilities and impossibilities, surprisingly little has been written about how this political formation is lived. For Love of the Prophet looks at the Republic of Sudan’s twenty-five-year experiment with Islamic statehood. Focusing not on state institutions, but rather on the daily life that goes on in their shadows, Noah Salomon’s careful ethnography examines the lasting effects of state Islamization on Sudanese society through a study of the individuals and organizations working in its midst.

Salomon investigates Sudan at a crucial moment in its history—balanced between unity and partition, secular and religious politics, peace and war—when those who desired an Islamic state were rethinking the political form under which they had lived for nearly a generation. Countering the dominant discourse, Salomon depicts contemporary Islamic politics not as a response to secularism and Westernization but as a node in a much longer conversation within Islamic thought, augmented and reappropriated, as state projects of Islamic reform became objects of debate and controversy.

Among the first books to delve into the making of the modern Islamic state, For Love of the Prophet reveals both novel political ideals and new articulations of Islam as it is rethought through the lens of the nation.

Posted on by Marc O. DeGirolami

DeGirolami, “Religious Accommodation, Religious Tradition, and Political Polarization”

I have posted a new paper, Religious Accommodation, Religious Tradition, and Political Polarization (UPDATE: link fixed). Though my subject is not the same as Professor Muñoz’s, the two are related in several ways, and I’ll have a post or two about the connections soon. Here’s the abstract:

A religious accommodation is an exemption from compliance with the law for some but not for others. One might therefore suppose that before granting an accommodation, courts would inquire about whether a legal interference with religious belief or practice is truly significant, if only to evaluate whether the risk of political polarization that attends accommodation is worth hazarding. But that is not the case: any assessment of the significance of a religious belief or practice within a claimant’s belief system is strictly forbidden.

Two arguments are pressed in support of this view: (1) courts have institutional reasons for acquiescing on the burden question; and (2) courts have anti-establishment reasons for doing so. Courts, it is said, do not decide about the quality of religious burdens. Claimants do that. Courts defer so as to reduce the political polarization that might result if some should perceive that their religious beliefs and practices are comparatively powerless to obtain exemptions. Deference on the burden question preserves the religious neutrality of courts and mitigates the politically polarizing dangers of accommodation.

This essay contests that view. It argues that this approach to religious accommodation has generated considerable difficulties of its own that have aggravated the political polarization they were intended to reduce. Political polarization is now a pervasive feature of religious accommodation, but this essay focuses on only some explanations for this unfortunate state of affairs—those that relate to the antagonistic relationship between religious accommodation and established religious groups and traditions.

First, hyper-deference as to the burden on religion systematically undermines the view that religions are institutional phenomena with established, stable, and longstanding traditions. In doing so, it damages the argument that courts are institutionally incompetent to evaluate religious ideas. Claims about the institutional incompetence of the judiciary to inquire into religious burdens proceed on the assumption that there is something unique—and intelligibly unique—about religious beliefs and practices that make them different from, say, individual foibles, fraudulent schemes, flights of fancy, or private predilections. Arguments about the judiciary’s institutional incompetence as to religious questions contemplate the existence of other institutions that are competent as to those questions. Lacking such other institutions, the institutional competence of courts to evaluate religious claims is greatly strengthened. Courts are perfectly competent to evaluate fraud, idiosyncrasy, gibberish, and personal preference. Yet when courts are disabled from evaluating some varieties of idiosyncratic eccentricity (denominated “religious”) but not others (not so denominated), then “religion,” and therefore religious accommodation, is bound to be politically polarizing. The category of religion, having been stripped of its institutional character for legal purposes, designates nothing coherent at all. And people begin to suspect with some justice that decisions about accommodation are being made on the basis of other reasons altogether.

Second, the hyper-deferential approach to religious accommodation assumes and promotes a particular and decidedly non-neutral view of religion as irrational and utterly incomprehensible to anybody other than an individual believer. Accommodation is not for established religious groups or traditions—groups that are organized, enduring, and that might offer substantial resistance to prevailing political and cultural orthodoxies. Accommodation is for the exotic, the personal, the unthreatening, and the peculiar. That view is part of the heritage of the highly individualized, subjective approach to religion steadily constitutionalized by the Supreme Court since the mid-twentieth century, and that now seems to be the foundation of one powerful strain of the contemporary cultural understanding of religion in America. It is a view whose promotion in law has profoundly entangled the state with religion. The refusal of courts to make any serious inquiry into the nature of the asserted religious burden has encouraged increasingly aggressive, self-indulgent, and ephemeral assertions of religious freedom. It will—and indeed, it already has—promoted unserious religion. Small wonder that religion as a legal category is in such disreputable odor. Small wonder that religious accommodation is increasingly perceived in politically partisan terms.

Posted on by L&R Forum · 2 Comments

Munoz: Justice Scalia was Right about Religious Free Exercise

All this month, the Law and Religion Forum hosts an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this leadoff post, Muñoz summarizes his argument. For other posts in the series, please click here. 

“[I]t is proper to keep in mind, that all power in just & free Govts. is derived from Compact . . .”

– James Madison, “On Sovereignty,” (1835)

In the wake of Antonin Scalia’s untimely passing earlier this year, originalists and conservatives praised the Justice’s legacy with one notable exception—his majority opinion in the Free Exercise Clause case, Employment Division of Oregon v. Smith (1990). Stanford Law Professor Michael McConnell identified Smith as his least favorite Scalia opinion. Michael Stokes Paulsen went even further, writing an entire essay about Smith titled, “Justice Scalia’s Worst Opinion.” Calling it a “constitutional disaster,” Paulsen, who holds a Distinguished University Chair at the University of St. Thomas, claimed that Scalia overturned the only interpretation “that makes sense of the decision to have a free exercise clause in the first place” and overthrew the “understanding [that] accords with the founding generation’s understanding of religious freedom as a ‘natural right.’” Even for a “fainthearted” originalist, as Scalia once labeled himself, that is harsh criticism.

I certainly agree that Scalia’s Smith opinion has significant shortcomings (including everything about “hybrid rights”), but from an originalist perspective, its basic conclusion is correct. I’ll go even further: Justice Scalia’s non-exemptionist reading of the Free Exercise Clause is the only construction consistent with the American founders’ natural rights political philosophy and their attendant social compact constitutionalism. As much as I admire the scholarship of McConnell, Paulsen, and other originalist defenders of the Sherbert approach, they are simply wrong when they claim the founders’ natural rights constitutionalism supports a constitutional right to exemptions.

Let me start, however, with a point of agreement. I applaud Professors McConnell and Paulsen for emphasizing the founders’ understanding of religious liberty as a natural right. Recovering the idea of natural rights is essential to contest the idea that the state grants religious liberty and can limit it according to its own interests and preferences.

The founders rejected the language of toleration, because toleration presumes that the state possesses legitimate authority over religious exercises. Instead, the founders recognized that the right of religious liberty inheres in the individual prior to state recognition. Individuals possess a right of Read more