Posted on by Marc O. DeGirolami

Peace Cross Puzzlement

The Maryland Bladensburg Cross was allowed to stand. That’s the easy part. The hard part is what precisely prevented the Court–for the second time in as many Establishment Clause cases involving these kinds of issues (see also Town of Greece)–from cobbling together a majority opinion repudiating Lemon/endorsement and offering a new approach, even one limited to religious displays. Instead, we got:

  • a plurality opinion (joined by Justice Breyer) with lots of extremely critical commentary about Lemon/endorsement, but that does not overrule Lemon/endorsement even in this narrow area;
  • one concurrence that would have overruled Lemon/endorsement;
  • one concurrence that preserves Lemon/endorsement;
  • 4-6 votes for a history and tradition approach whose contours vary significantly depending on the justice;
  • two opinions concurring in the judgment that would have overruled Lemon/endorsement;
  • a dissent by Justice Ginsburg joined by Justice Sotomayor.

The puzzle: what prevented a majority from overruling Lemon/endorsement even in this specific area? Does Lemon/endorsement continue to apply in this area where the display is new and/or there is (lots of?) evidence of discriminatory motive? I find it difficult to understand how the extremely critical comments about Lemon/endorsement that four justices put their name to in the plurality, plus the views of another two justices that were ready to overrule Lemon/endorsement altogether, do not add up to some kind of actual overruling. Justice Kagan could certainly have written a concurrence in the judgment. Not to be, I’m afraid. Still, I’ll have more to say about the 4-6 votes for some variety or other of a history/tradition approach soon.

Posted on by amnania

Around the Web

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

Posted on by Mark Movsesian

Bonds of Union

Here is a new book from the University of North Carolina Press that tells a hopeful story about the effect of Christianity on one border area during the Civil War–a surprising one, too. The author, Bridget Ford (California State University), argues that religion provided a common identity that eased the transition to emancipation in the Ohio River Valley. The book is Bonds of Union: Religion, Race, and Politics in a Civil War Borderland. The publisher’s description follows:

This vivid history of the Civil War era reveals how unexpected bonds of union forged among diverse peoples in the Ohio-Kentucky borderlands furthered emancipation through a period of spiraling chaos between 1830 and 1865. Moving beyond familiar arguments about Lincoln’s deft politics or regional commercial ties, Bridget Ford recovers the potent religious, racial, and political attachments holding the country together at one of its most likely breaking points, the Ohio River.

Living in a bitterly contested region, the Americans examined here–Protestant and Catholic, black and white, northerner and southerner–made zealous efforts to understand the daily lives and struggles of those on the opposite side of vexing human and ideological divides. In their common pursuits of religious devotionalism, universal public education regardless of race, and relief from suffering during wartime, Ford discovers a surprisingly capacious and inclusive sense of political union in the Civil War era. While accounting for the era’s many disintegrative forces, Ford reveals the imaginative work that went into bridging stark differences in lived experience, and she posits that work as a precondition for slavery’s end and the Union’s persistence.

Posted on by Mark Movsesian

Ethiopian Integralism

A book out this summer from Baylor University Press, Ethiopian Christianity: History, Theology, Practice, explores the history of the Ethiopian Orthodox Church, which has shaped that country’s culture and politics for centuries–even today, more forty years after the end of the monarchy. The author is Philip Esler of the University of Gloucestershire. Here’s the description from the publisher’s website:

In  Ethiopian Christianity Philip Esler presents a rich and comprehensive history of Christianity’s flourishing. But Esler is ever careful to situate this growth in the context of Ethiopia’s politics and culture. In so doing, he highlights the remarkable uniqueness of Christianity in Ethiopia.

Ethiopian Christianity begins with ancient accounts of Christianity’s introduction to Ethiopia by St. Frumentius and King Ezana in the early 300s CE. Esler traces how the church and the monarchy closely coexisted, a reality that persisted until the death of Haile Selassie in 1974. This relationship allowed the emperor to consider himself the protector of Orthodox Christianity. The emperor’s position, combined with Ethiopia’s geographical isolation, fostered a distinct form of Christianity—one that features the inextricable intertwining of the ordinary with the sacred and rejects the two-nature Christology established at the Council of Chalcedon.

In addition to his historical narrative, Esler also explores the cultural traditions of Ethiopian Orthodoxy by detailing its intellectual and literary practices, theology, and creativity in art, architecture, and music. He provides profiles of the flourishing Protestant denominations and Roman Catholicism. He also considers current challenges that Ethiopian Christianity faces—especially, Orthodoxy’s relations with other religions within the country, especially Islam and the Protestant and Roman Catholic churches. Esler concludes with thoughtful reflections on the long-standing presence of Christianity in Ethiopia and hopeful considerations for its future in the country’s rapidly changing politics, ultimately revealing a singular form of faith found nowhere else.

Posted on by Daniel Vitagliano

Around the Web

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

Posted on by Mark Movsesian

The Meanings of the Hijab

Here is an interesting-looking book from Harvard on the social meaning of modest dress in contemporary Islam, Pious Fashion: How Muslim Women Dress, available later this summer. The author is Elizabeth Bucar (Northeastern University). Here’s the publisher’s description:

For many Westerners, the Islamic veil is the ultimate sign of women’s oppression. But Elizabeth Bucar’s take on clothing worn by Muslim women is a far cry from this older feminist attitude toward veiling. She argues that modest clothing represents much more than social control or religious orthodoxy. Today, headscarves are styled to frame the head and face in interesting ways, while colors and textures express individual tastes and challenge aesthetic preconceptions. Brand-name clothing and accessories serve as conveyances of social distinction and are part of a multimillion-dollar ready-to-wear industry. Even mainstream international chains are offering lines especially for hijabis. More than just a veil, this is pious fashion from head to toe, which engages with a range of aesthetic values related to moral authority, consumption, and selfhood.

Writing in an appealing style based on first-hand accounts, Bucar invites readers to join her in three Muslim-majority nations as she surveys how women approach the question “What to wear?” By looking at fashion trends in the bustling cities of Tehran, Yogyakarta, and Istanbul—and at the many ways clerics, designers, politicians, and bloggers try to influence Muslim women’s choices—she concludes that pious fashion depends to a large extent on local aesthetic and moral values, rather than the dictates of religious doctrine.

Pious Fashion defines modesty in Islamic dress as an ever-changing social practice among Muslim women who—much like non-Muslim women—create from a range of available clothing items and accessories styles they think will look both appropriate and attractive.

Posted on by Marc O. DeGirolami

CLR in the HJLPP

I’m delighted to note the Center for Law and Religion edition of the latest issue of the Harvard Journal of Law and Public Policy. (Actually, it was entirely happenstance that one of Mark’s articles and one of my articles were published in the same issue.)

Mark’s piece is Masterpiece Cakeshop and the Future of Religious Freedom.

Mine is The Sickness Unto Death of the First Amendment.

Posted on by Mark Movsesian

Gregg on Reason and Faith

All great civilizations marry reason and faith, for the simple reason that human flourishing requires both these things. No civilization that ignored one of the two could survive. So it’s incorrect, in my view, to assert that we in the West have a monopoly on this sort of thing. But civilizations do combine reason and faith differently, which explains why we have not one, world civilization, but many. Western civilization, in particular, has been shaped by a fusion of speculative reason, which we inherit from the Greeks, and Biblical revelation, which we inherit from Christianity and, before that, from Judaism. This synthesis marks American civilization in particular, which combines Enlightenment rationalism and Evangelical piety in a unique way.

The Acton Institute’s Samuel Gregg has written a new book on the Western synthesis, Reason, Faith, and the Struggle for Western Civilization. I can’t say I agree with all the book argues, at least if the description below is any guide. But it looks very interesting. The publisher is Gateway Editions. Here’s the description from the Amazon website:

The genius of Western civilization is its unique synthesis of reason and faith. But today that synthesis is under attack—from the East by radical Islam (faith without reason) and from within the West itself by aggressive secularism (reason without faith). The stakes are incalculably high.

The naïve and increasingly common assumption that reason and faith are incompatible is simply at odds with the facts of history. The revelation in the Hebrew Scriptures of a reasonable Creator imbued Judaism and Christianity with a conviction that the world is intelligible, leading to the flowering of reason and the invention of science in the West. It was no accident that the Enlightenment took place in the culture formed by the Jewish and Christian faiths.

We can all see that faith without reason is benighted at best, fanatical and violent at worst. But too many forget that reason, stripped of faith, is subject to its own pathologies. A supposedly autonomous reason easily sinks into fanaticism, stifling dissent as bigoted and irrational and devouring the humane civilization fostered by the integration of reason and faith. The blood-soaked history of the twentieth century attests to the totalitarian forces unleashed by corrupted reason.

But Samuel Gregg does more than lament the intellectual and spiritual ruin caused by the divorce of reason and faith. He shows that each of these foundational principles corrects the other’s excesses and enhances our comprehension of the truth in a continuous renewal of civilization. By recovering this balance, we can avoid a suicidal winner-take-all conflict between reason and faith and a future that will respect neither.

Posted on by Marc O. DeGirolami

Legal Spirits Episode 010: The New Abortion Laws

In this podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss a raft of new laws passed by several states regulating abortion. They explore the constitutionality of these laws under the regime established by Roe v. Wade and Planned Parenthood v. Casey, and they think through what the laws might suggest about the growing cultural divisions in America. Mark and Marc survey some of the most restrictive and most permissive of these new laws, talk about the Supreme Court’s recent per curiam opinion in Box v. Planned Parenthood and some of the internal dynamics on the present Court suggested by the opinion as respects abortion, and offer some perspective on the Court’s historic ambitions with respect to this deeply controversial subject. Listen in!

ADDENDUM: Our friend, Professor Carter Snead, points out two small errors in the podcast. First, recent studies have shown that with treatment, viability can begin as early as 22 weeks. Second, the Alabama law has exceptions for situations posing a serious health risk to the mother and where there is a possibility that the woman poses a serious physical health risk to herself because of a serious mental illness.

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Posted on by Marc O. DeGirolami

Blaming Evangelicals for Losing the Culture War

Here is a book that argues that Evangelicals have only themselves to blame for their defeats in the culture wars. They cast their lot with an immoral President, the book argues, and now they will reap the consequences. In the emerging divide between classical liberals and post-liberals in American conservative politics, the author clearly identifies with the former and has harsh words of criticism for the latter. An interesting salvo in the battle for Evangelical politics, itself reflecting the internal fragmentation within American conservatism. The book is The Immoral Majority: Why Evangelicals Chose Political Power Over Christian Values (HarperCollins), by Ben Howe.

“In 2016, writer and filmmaker Ben Howe found himself disillusioned with the religious movement he’d always called home. In the pursuit of electoral victory, many American evangelicals embraced moral relativism and toxic partisanship.

Whatever happened to the Moral Majority, who headed to Washington in the ’80s to plant the flag of Christian values? Where were the Christian leaders that emerged from that movement and led the charge against Bill Clinton for his deception and unfaithfulness? Was all that a sham? Or have they just lost sight of why they wanted to win in the first place? From the 1980s scandals till today, evangelicals have often been caricatured as a congregation of judgmental and prudish rubes taken in by thundering pastors consumed with greed and lust for power. Did the critics have a point?

In The Immoral Majority, Howe—still a believer and still deeply conservative—analyzes and debunks the intellectual dishonesty and manipulative rhetoric which evangelical leaders use to convince Christians to toe the Republican Party line. He walks us through the history of the Christian Right, as well as the events of the last three decades which led to the current state of the conservative movement at large.

As long as evangelicals prioritize power over persuasion, Howe argues, their pews will be empty and their national influence will dwindle. If evangelicals hope to avoid cultural irrelevance going forward, it will mean valuing the eternal over the ephemeral, humility over ego, and resisting the seduction of political power, no matter the cost. The Immoral Majority demonstrates how the Religious Right is choosing the profits of this world at the cost of its soul—and why it’s not too late to change course.”