Around the Web

Here are some important law-and-religion news stories from around the web:

The Ninth Crusade Ends

A very interesting looking new book concerning the Siege of Acre and the semi-official end of the Crusades: The Accursed Tower: The Fall of Acre and the End of the Crusades (Basic Books), by Roger Crowley.

“The 1291 siege of Acre was the Alamo of the Christian Crusades — the final bloody battle for the Holy Land. After a desperate six weeks, the beleaguered citadel surrendered to the Mamluks, bringing an end to Christendom’s two-hundred year adventure in the Middle East.

In The Accursed Tower, Roger Crowley delivers a lively narrative of the lead-up to the siege and a vivid, blow-by-blow account of the climactic battle. Drawing on extant Arabic sources as well as untranslated Latin documents, he argues that Acre is notable for technical advances in military planning and siege warfare, and extraordinary for its individual heroism and savage slaughter. A gripping depiction of the crusader era told through its dramatic last moments, The Accursed Tower offers an essential new view on a crucial turning point in world history.”

Movsesian on Masterpiece Cakeshop

For those who are interested, the Harvard Journal of Law and Public Policy has published my article, Masterpiece Cakeshop and the Future of Religious Freedom, in the most recent issue. Here’s the abstract:

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that treats social distinctions—especially religious distinctions—as illegitimate; and a growing administrative state that enforces that conception of equality in all aspects of our common life. This article explores those trends and offers three predictions for the future: conflicts like Masterpiece Cakeshop will grow more frequent and harder to resolve; the law of religious freedom will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already have.

Readers can also download the article from the SSRN website, here.

Threats and More Threats to the First Amendment

It surely must count as a feature of the polarized political times that people on different sides of the partisan spectrum perceive increasing threats to fundamental rights and interests coming from their political adversaries. This is certainly true for the First Amendment. Many conservatives, for example, believed that their First Amendment interests were threatened by the Obama Administration and voted for Donald Trump because they believed that their speech and religious freedoms would fare even worse under a Clinton presidency. They believed, as the book blurb below puts it, that “fundamental First Amendment norms and principles” were being threatened by the other side. In this new book, by contrast, law professor Timothy Zick makes exactly the opposite case: that First Amendment threats have escalated during the Trump Administration and as a consequence of President Trump himself. The book is The First Amendment in the Trump Era (Oxford University Press).

“Regardless of how the presidency of Donald J. Trump ultimately concludes, a significant part of its legacy will relate to the First Amendment. The president has publicly attacked the institutional press and individual reporters, calling them the “enemy of the people.” He has proposed that flag burners be jailed and denaturalized, blocked critics from his Twitter page, communicated hateful and derogatory ideas, and defended the speech of white nationalists. More than any other modern president, Trump has openly challenged fundamental First Amendment norms and principles relating to free speech and free press. These challenges have come at a time when the institutional press faces economic and other pressures that negatively affect their functions and legitimacy; political and other forms of polarization are on the rise; and protesters face diminished space and opportunities for exercising free speech rights. This book catalogues and analyzes the various First Amendment conflicts that have occurred during the Trump presidency. It places these conflicts in historical context–as part of our current digitized and polarized era but also as part of a broader narrative concerning attacks on free speech and the press. We must understand both what is familiar in terms of the First Amendment concerns of the present era, but also what is distinctive about these concerns. The Trump Era has once again reminded us of the need for a free and independent press, the need to protect robust and sometimes caustic criticism of public officials, and the importance of protest and dissent to effective self-government.”

2019 Annual Review

Here’s our annual review of Center activities for the past academic year, including Part III of the Tradition Project in Rome–with a keynote from Justice Samuel A. Alito; the fourth biennial Colloquium in Law and Religion, a new podcast series, and more. Check it out!

On the Cross

I have an essay about the Bladensburg Cross case at Public Discourse, where I isolate the holding (and wonder about whether there is actually a broader holding in the case), discuss the case’s implications for future religious displays, and speculate about the dynamics on the Supreme Court and elsewhere respecting these issues. A bit:

“The holding of American Legion lays out what could be called a jurisprudence of old religious monuments, symbols, and practices. When a religious monument, symbol, or practice, is old—whether it is a cross or a Ten Commandments monument or some other government practice of long standing—it is especially likely to be imbued with many purposes and messages that have changed and developed with time. Communities are entitled to maintain these religious monuments, symbols, and practices as part of their historical and cultural heritage, and the Court will no longer “roam[] the land, tearing down monuments with religious symbolism and scrubbing away an reference to the divine.” “The passage of time,” the majority said, “gives rise to a strong presumption of constitutionality,” and the Cross in this case clearly enjoys that presumption. It is both a Christian symbol and a symbol of war and patriotism. It is these things together.

Already, this holding works a considerable change in Supreme Court doctrine. It surrounds “old” religious “monuments, symbols, and practices” with a protective shield against judicial mischief in the name of the Establishment Clause. New religious monuments, symbols, and practices whose purposes are manifestly discriminatory, it is true, are not covered by the holding (more on this below), and the terms “new” and “old” are not defined. But the Court’s existing approach to state-sponsored religious displays is quite different. The much-reviled test in Lemon v. Kurtzman (1971) focuses on “the” purpose—“religious” or “secular”—of a display, as well as its “primary effect,” which the Court has subsequently interpreted in this context to mean whether a “reasonable observer” would perceive that the government is “endorsing” religion by displaying a monument or symbol. While Justice Kagan believed that the cross also survived under this approach, none of the other justices in the majority accepted Lemon, and all justices in the majority held that “old” displays have neither single purposes nor single meanings. This is flatly incompatible with the assumptions of Lemon.

There is overwhelming support on the Court for what would have been a broader holding. In Part II(A) of Justice Alito’s opinion, a four-justice plurality rejected the Lemon test and its “endorsement” application for these types of religious displays. It was something of a surprise that Justice Breyer joined the plurality. But it was a real shock that this part of Alito’s opinion was not officially joined by Justice Thomas or Justice Gorsuch. Those two justices authored respective concurrences in the judgment, which technically means that while they agree with the outcome, they do not join the Alito opinion’s reasoning. But both of them would have gone further than the plurality and rejected the Lemon test in its entirety. That they did not join Part II(A) rejecting the Lemon test—at least with regard to “old” displays—is baffling. For those who were hoping that something clearer would emerge from this case, it’s also rather exasperating.

Justice Thomas, in fact, goes so far as to say this about the Lemon/endorsement test: “the plurality rightly rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.’ I agree with that aspect of the opinion” (emphasis added). With Thomas, the reasoning in Part II(A) therefore has the explicit support of five justices. But because Thomas did not formally join Part II(A), the statement seems to be dicta, material in an opinion unnecessary to the judgment. Admittedly, the line between dicta and holding is not crystal clear, and the statement could even be read as an alternative holding. Justice Gorsuch’s concurrence in the judgment also has highly critical comments about Lemon, but Justice Thomas’s statement is a clear and explicit affirmation of the plurality’s position.

At any rate, the lesson of American Legion seems to be that the Lemon/endorsement test is rejected—at least for “old” religious monuments, symbols, and practices.”

Liberty as Bedrock

I enjoyed reading and reviewing Richard Brookhiser’s recent book about John Marshall. Brookhiser has an easy and genial biographical style that has made for engaging narratives about Gouverneur Morris, James Madison, George Washington, and others. The Marshall book certainly fits into his larger body of work.

This new book looks a little different, however, and clearly has something of an edge in it. Here, Brookhiser is intending to intervene in contemporary points of fracture within American conservatism concerning freedom and American exceptionalism as a partisan for one side of that disagreement. It will be interesting to see whether the book retains Brookhiser’s trademark style or goes in a different direction. The book is Give Me Liberty: A History of America’s Exceptional Idea (Basic Books).

“Nationalism is inevitable: It supplies feelings of belonging, identity, and recognition. It binds us to our neighbors and tells us who we are. But increasingly — from the United States to India, from Russia to Burma — nationalism is being invoked for unworthy ends: to disdain minorities or to support despots. As a result, nationalism has become to many a dirty word.

In Give Me Liberty, award-winning historian and biographer Richard Brookhiser offers up a truer and more inspiring story of American nationalism as it has evolved over four hundred years. He examines America’s history through twelve documents that made the United States a new country in a new world: a free country. We are what we are because of them; we stay true to what we are by staying true to them.

Americans have always sought liberty, asked for it, fought for it; every victory has been the fulfillment of old hopes and promises. This is our nationalism, and we should be proud of it.”

Around the Web

Here are some important law-and-religion news stories from around the web:

Puritans Here and Abroad

Whether it’s new books about the “city on a hill” metaphor or simply studies of the subject, Puritanism is hot (so to speak). Here is a new book that discusses Puritanism from an international perspective, exploring different varieties: Puritanism: A Transatlantic History (Princeton University Press), by David D. Hall.

“This book is a sweeping transatlantic history of Puritanism from its emergence out of the religious tumult of Elizabethan England to its founding role in the story of America. Shedding critical new light on the diverse forms of Puritan belief and practice in England, Scotland, and New England, David Hall provides a multifaceted account of a cultural movement that judged the Protestant reforms of Elizabeth’s reign to be unfinished. Hall’s vivid and wide-ranging narrative describes the movement’s deeply ambiguous triumph under Oliver Cromwell, its political demise with the Restoration of the English monarchy in 1660, and its perilous migration across the Atlantic to establish a “perfect reformation” in the New World.

A breathtaking work of scholarship by an eminent historian, The Puritans examines the tribulations and doctrinal dilemmas that led to the fragmentation and eventual decline of Puritanism. It presents a compelling portrait of a religious and political movement that was divided virtually from the start. In England, some wanted to dismantle the Church of England entirely and others were more cautious, while Puritans in Scotland were divided between those willing to work with a troublesome king and others insisting on the independence of the state church. This monumental book traces how Puritanism was a catalyst for profound cultural changes in the early modern Atlantic world, opening the door for other dissenter groups such as the Baptists and the Quakers, and leaving its enduring mark on what counted as true religion in America.”

Rashid Rida and Islamic Reform

Rashid Rida was an Islamic reformer, active in the early part of the 20th Century, who advocated reopening the gates of interpretation of Islamic law in order to address issues of modernity–including new scientific discoveries and technologies being imported from the West. A book out this summer from Columbia University Press, Modern Things on Trial: Islam’s Global and Material Reformation in the Age of Rida, 1865–1935, describes his influence in Islamic law and civilization. The author is Leor Halevi (Vanderbilt). Here’s the description from the publisher’s site:

In cities awakening to global exchange under European imperial rule, Muslims encountered all sorts of strange and wonderful new things—synthetic toothbrushes, toilet paper, telegraphs, railways, gramophones, brimmed hats, tailored pants, and lottery tickets. The passage of these goods across cultural frontiers spurred passionate debates. Realizing that these goods were changing religious practices and values, proponents and critics wondered what to outlaw and what to permit.

In this book, Leor Halevi tells the story of the Islamic trials of technological and commercial innovations of the late nineteenth and early twentieth centuries. He focuses on the communications of an entrepreneurial Syrian interpreter of the shariʿa named Rashid Rida, who became a renowned reformer by responding to the demand for authoritative and authentic religious advice. Upon migrating to Egypt, Rida founded an Islamic magazine, The Lighthouse, which cultivated an educated, prosperous readership within and beyond the British Empire. To an audience eager to know if their scriptures sanctioned particular interactions with particular objects, he preached the message that by rediscovering Islam’s foundational spirit, the global community of Muslims would thrive and realize modernity’s religious and secular promises.

Through analysis of Rida’s international correspondence, Halevi argues that religious entanglements with new commodities and technologies were the driving forces behind local and global projects to reform the Islamic legal tradition. Shedding light on culture, commerce, and consumption in Cairo and other colonial cities, Modern Things on Trial is a groundbreaking account of Islam’s material transformation in a globalizing era.