Posted on by Liam Ray

Around the Web This Week

Here are some news stories involving law and religion from this past week:

Posted on by Liam Ray

“Pope Gregory IX (1227–41)” (Egger & Smith, eds.)

In January, Routledge will release Pope Gregory IX (1227–41), edited by Christopher Egger (University of Vienna) and Damian J. Smith (Saint Louis University). The publisher’s description follows:

routledge-logoAs Cardinal Hugolino and as pope, Gregory was one of the dominant figures in the history of the papacy of the High Middle Ages. His pontificate was a key stage in the development of papal relations with many of the realms of Christendom, as well as in legal and administrative history, the battle against heresy (especially with the foundation of inquisitions), the crusades, and the flowering of the Mendicants. Hugolino came to prominence during the pontificate of his relative, Pope Innocent III, and played an important political role, particularly as legate on various occasions, as well as being a major promoter of the new religious orders. As pope, his battle with Emperor Frederick II is one of medieval history’s most absorbing conflicts (though one which rarely receives a balanced treatment). But he also acted as peacemaker in England, as promoter of the crusades in the East and in Iberia, where he met with considerable success, as instigator of mission for the sake of conversion, as a reformer of the Curia, and as a passionate advocate of Church reform generally. His decretal collection, compiled by Ramon de Penyafort, served as the canon law of the Catholic Church from 1234 until 1917. Yet Gregory has not received much attention since an Italian biography by Salvatore Sibilia was published half a century ago and a full examination of his pontificate is now very long overdue. The current volume brings together a team of international scholars, each of them expert in dealing with a particular aspect of the pontificate, and provides what will be a volume of lasting scholarly value on a central figure of the medieval papacy.

Posted on by Liam Ray

“Secularisms in a Postsecular Age?” (Mapril et al., eds.)

In January, Palgrave MacMillan will release Secularisms in a Postsecular Age? Religiosities and Subjectivities in Comparative Perspective edited by Jose Mapril (New University of Lisbon), Ruy Blanes (University of Bergen), Emerson Giumbelli (Federal University of Rio Grande do Sul), and Erin K. Wilson (University of Groningen). The publisher’s description follows:

Palgrave MacMillanThis volume ethnographically explores the relation between secularities and religious subjectivities. As a consequence of the demise of secularization theory, we live in an interesting intellectual moment where the so-called ‘post-secular’ coexists with the secular, which in turn has become pluralized and historicized. This cohabitation of the secular and post-secular is revealed mainly through political dialectical processes that overshadow the subjective and inter-subjective dimensions of secularity, making it difficult to pinpoint concrete sites, agents, and objects of expression.

Drawing on cases from South America, Africa, and Europe, contributors apply key insights from religious studies debates on the genealogies and formations of both religion and secularism. They explore the spaces, persons, and places in which these categories emerge and mutually constitute one another.

Posted on by Mark Movsesian

No Protestants on the Court

At the Liberty Law site this morning, I have a post on the absence of Protestant Christians on the Supreme Court. In historical terms, the lack of Protestants is a striking anomaly–the large majority of the 112 men and women who have sat as Justices over time has been Protestant. What explains the current situation, and might it have an effect on American law?

With regard to the first question, I argue that the absence of Protestants as to to with larger social and cultural questions. With respect to the second question, I argue, it depends on what sort of Protestant, and what sort of legal issues, one has in mind:

If Reno is right about the transformation of Mainline Protestantism into a post-Protestant WASP ethos, then it shouldn’t matter whether actual Mainline Protestants are on the Court. Given the composition of the legal profession, most people likely to be appointed to the Court will have post-Protestant WASP values, whatever their particular faith tradition. Recall my example of the Catholic or Orthodox 1L at Harvard. Post-Protestant WASP values, in other words, will be represented even without actual Mainline Protestants.

On the other hand, the absence of Evangelicals might make a difference to the Court’s decisions, at least with regard to some issues—for example, questions regarding religious liberty. Notwithstanding the Supreme Court’s 1990 decision in Employment Division v. Smith, which abandoned the test for constitutional purposes, most hot-button religious liberty cases nowadays turn on some version of the “compelling interest” test. This test holds that the government cannot substantially burden a person’s exercise of religion unless it has a compelling interest for doing so and has chosen the least restrictive means. This is the test contained in the Religious Freedom Restoration Act (RFRA), for example—the statute at issue in the Court’s recent decisions regarding the contraception mandate in Obamacare.

The compelling interest test requires many judgment calls: What is a “substantial burden” on religious exercise? What is a “compelling interest”? Is there a “less restrictive means” available? (In fact, it was the necessity of such intuitive judgments that led the Smith Court to abandon the compelling interest test in the constitutional context). And judgment calls depend on the intuitions of the people doing the judging. An Evangelical Christian likely would have different intuitions about these matters than a post-Protestant WASP who views religions as more or less interchangeable, and anyway not all that important. Someone who views religion as a vital guide to behavior might be more skeptical of claims that a rule does not “substantially burden” religious exercise, or that the government has offered a “compelling” interest to justify the intrusion.

In short, on at least some questions, the religious background of the justices could well make a difference, and the absence of Evangelicals on the Court affect the course of the law. You can read the whole post here.