Posted on by Marc O. DeGirolami

The Catholic Church as Shatterer of Polities

In our law and religion colloquium, one of the early themes Mark and I touch on is the dualism of Christianity, and the complicated sense in which this dualism is, and is not, a precursor to contemporary ideas of church-state separation. Some of the complications concern the view that separation in this early sense may not have meant complete division, but instead a kind of complementarity of authorities.

We don’t touch perhaps as much as we should on the Catholic Church’s role in the formation of the contemporary nation state, but this new book does: The Catholic Church and European State Formation, AD 1000-1500 (Oxford University Press) by political historians Jørgen Møller and Jonathan Stavnskær Doucette. Their core claim seems to be that the Church was the prime mover of political fragmentation (or “pluralism,” to give it its modern euphemism), and in particular the disruption of the Holy Roman Empire, during this period.

Generations of social scientists and historians have argued that the escape from empire and consequent fragmentation of power – across and within polities – was a necessary condition for the European development of the modern territorial state, modern representative democracy, and modern levels of prosperity. The Catholic Church and European State Formation, AD 1000-1500 inserts the Catholic Church as the main engine of this persistent international and domestic power pluralism, which has moulded European state-formation for almost a millennium.

The ‘crisis of church and state’ that began in the second half of the eleventh century is argued here as having fundamentally reshaped European patterns of state formation and regime change. It did so by doing away with the norm in historical societies – sacral monarchy – and by consolidating the two great balancing acts European state builders have been engaged in since the eleventh century: against strong social groups and against each other.

The book traces the roots of this crisis to a large-scale breakdown of public authority in the Latin West, which began in the ninth century, and which at one and the same time incentivised and permitted a religious reform movement to radically transform the Catholic Church in the period from the late tenth century onwards.

Drawing on a unique dataset of towns, parliaments, and ecclesiastical institutions such as bishoprics and monasteries, the book documents how this church reform movement was crucial for the development and spread of self-government (the internal balancing act) and the weakening of the Holy Roman Empire (the external balancing act) in the period AD 1000-1500.

Posted on by L&R Forum

Around the Web

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

  • A petition for certiorari has been filed with the U.S Supreme Court in Arkansas Times, LP v. Waldrip (see prior posting). In the case, the Eighth Circuit sitting en banc upheld, against a free speech challenge, Arkansas’ law requiring public contracts to include a certification from the contractor that it will not boycott Israel. 
  • In Weiss v. Perez, a California federal district court allowed a tenured professor to move ahead against most of the defendants she named in a lawsuit, which alleged that the University had retaliated against her because of her opposition to repatriation of Native American remains. Professor Weiss has argued that the Native American Graves Protection and Repatriation Act and the California Native American Graves Protection and Repatriation Act violate the Establishment Clause by favoring religion over science. Due to this belief, Weiss claims San Jose State University has interfered with her research and limited her professional activities. 
  • In In re A.C. (Minor Child), an Indiana state appeals court upheld a trial court’s order removing from the home a sixteen-year-old transgender child who suffered from an eating disorder and emotional abuse due to their parent’s unwillingness to accept the child’s transgender identity. The parents allege that they could not affirm their child’s transgender identity or use the child’s preferred pronouns because of their religious beliefs. The court rejected the parents’ Free Exercise claims.
  • The EEOC announced that it has filed a Title VII and ADA suit against Global Medical Response, Inc. and American Medical Response, Inc., which operate one of the largest medical transport companies in the country. The suit alleges that the companies refused to accommodate employees in EMT and paramedic positions who wish to wear facial hair for religious reasons. 
  • The EEOC has reached a settlement in a religious discrimination suit it had filed against a Conway, Arkansas Kroger store for failing to accommodate two employees who refused to wear the company’s apron. The employees insisted that the symbol on the apron promotes the LGBT community, which the employees’ religious beliefs preclude them from affirming. Under the settlement, Kroger will pay each employee $20,000 in back pay plus $52,000 each in additional damages. 
Posted on by Mark Movsesian · 1 Comment

The Church of Saint Thomas Paine

A few years ago, while a fellow in the Madison Program at Princeton, I did a little research on a relative of mine, Mangasar Mangasarian, who had attended Princeton in the 19th Century. I had always heard that Mangasar, one of the earliest Armenian immigrants in the US, had gone on to become a Protestant minister. That was the story our family told, and it was true, as far as it went. What they failed to mention (maybe they didn’t know), and what I came to learn at Princeton, was that Mangasar eventually left his pulpit in the Presbyterian Church to found his own, rationalist sect, the “Independent Religious Society of Chicago,” which had some success around the turn of the century. I guess my relatives found that part of Mangasar’s story less edifying.

I’ve always wanted to do some more research to find out why Mangasar took the path he did. We’re a little late getting to it here at the Forum, but a book published last year by Princeton seems like it will provide some very helpful information. The book, The Church of Saint Thomas Paine, by Leigh Eric Schmidt (Washington University in St. Louis) describes 19th century secular “religions” in the United States. I checked the index online and Mangasar’s name appears quite prominently! Can’t wait to see what the book says. Meanwhile, here’s the publisher’s description:

In The Church of Saint Thomas Paine, Leigh Eric Schmidt tells the surprising story of how freethinking liberals in nineteenth-century America promoted a secular religion of humanity centered on the deistic revolutionary Thomas Paine (1737–1809) and how their descendants eventually became embroiled in the culture wars of the late twentieth century.

After Paine’s remains were stolen from his grave in New Rochelle, New York, and shipped to England in 1819, the reverence of his American disciples took a material turn in a long search for his relics. Paine’s birthday was always a red-letter day for these believers in democratic cosmopolitanism and philanthropic benevolence, but they expanded their program to include a broader array of rites and ceremonies, particularly funerals free of Christian supervision. They also worked to establish their own churches and congregations in which to practice their religion of secularism.

All of these activities raised serious questions about the very definition of religion and whether it included nontheistic fellowships and humanistic associations—a dispute that erupted again in the second half of the twentieth century. As right-wing Christians came to see secular humanism as the most dangerous religion imaginable, small communities of religious humanists, the heirs of Paine’s followers, were swept up in new battles about religion’s public contours and secularism’s moral perils.

An engrossing account of an important but little-known chapter in American history, The Church of Saint Thomas Paine reveals why the lines between religion and secularism are often much blurrier than we imagine.

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Around the Web

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

  • The D.C. Circuit Court of Appeals heard oral arguments in Singh v. Berger. In the case, the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine’s uniform and grooming policies during recruit training while their case continues to be litigated. 
  • In Hardaway v. Nigrelli, a New York federal district court issued a temporary restraining order barring enforcement of the provision in New York law that prohibits possession of firearms at “any place of worship or religious observation.” The suit was filed by two clergy members who allege that, as leaders of their churches, they want to carry firearms on church premises to keep the peace. The court concluded that the state restriction violates the Second Amendment. 
  • Suit was filed in a Wisconsin federal district court challenging the city of La Crosse’s ordinance prohibiting medical and mental health professionals from engaging in conversion therapy with anyone under eighteen. The complaint in Buchman v. City of Law Crosse alleges that the ban on counseling minors to change their sexual orientation, gender identity, gender expression, or behaviors violates Plaintiff’s free speech and free exercise rights. 
  • Suit was filed in a California federal district court by two California State University professors challenging the University’s inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint in Kumar v. Koester alleges that the term “caste,” as used in the Interim Policy, is unconstitutionally vague and the Interim Policy violates the rights of Plaintiffs under the First and Fourteenth Amendments. 
  • In a tentative decision, a California state trial court concluded that a bakery that refuses on religious grounds to furnish custom-designed cakes for same-sex weddings and instead refers customers to another bakery for such items does not violate the Unruh Civil Rights Act. In Department of Fair Employment and Housing v. Cathy’s Creations, Inc., the court held that because California’s Unruh Civil Rights Act is a neutral law of general applicability, the state did not violate Defendant’s free exercise rights. 
  • In L.F. v. S.C.R.L., the Court of Justice of the European Communities held that a private company may prohibit employees from wearing all visible signs of political, philosophical, or religious belief in the workplace. This would not constitute direct discrimination on the ground of religion or belief in violation of Council Directive 2000/78 so long as the company’s policy covers any manifestation of religious, philosophical, or spiritual beliefs without distinction.  
Posted on by Marc O. DeGirolami

The Secular Prophet of American Law

I’ve always thought that the activity we now call “constitutional theory” began with the work of James Bradley Thayer. For centuries, it was a common view among Western legal thinkers that the law was a manifestation of something that was greater than ordinary legislation or judicial decisions. Judicial decisions, in particular, were not law, but were thought of as evidence of the law. Today, by contrast, it is hard to imagine leading scholars or judges explaining law in anything like these terms. Just when the change happened is impossible to pinpoint, but Oliver Wendell Holmes, Jr. was certainly an important figure in the transition. Holmes mocked the classical view that law is some sort of “brooding omnipresence in the sky,” a view he rejected as “fallacy and illusion.” Instead, Holmes proclaimed that law is a purely human affair. The Legal Realists that followed Holmes believed that what needed to be done was to “redefine supernatural concepts in natural terms.”

That’s why Thayer is so pivotal. He saw all of this coming in the views of legal academics and thinkers of the time. So he tried with the first “theory” to head it off. And so the rise of constitutional theory coincides precisely with the fall of the classical conception of law and the rise of this new, realist, conception of law. When it comes to the Constitution, what takes the place of the old, classical view is, in fact, theory. Theory is what ostensibly preserves “the law” as something separate and apart from raw policy preferences, or from raw partisan politics. Theory purports to provide a new account and defense of law’s essential nature.

At any rate, here is what looks like an important and very insightful new book on Thayer, which interestingly uses religious language right in its title to describe him: The Prophet of Harvard Law: James Bradley Thayer and His Legal Legacy (University of Kansas Press), by Andrew Porwancher, Austin Coffey, Taylor Jipp, and Jake Mazeitis.

Amid the halls of Harvard Law, a professor of legend, James Bradley Thayer, shaped generations of students from 1874 to 1902. His devoted protégés included future Supreme Court justices, appellate judges, and law school deans. The legal giants of the Progressive Era—Holmes, Brandeis, and Hand, to name only a few——came under Thayer’s tutelage in their formative years.

He imparted to his pupils a novel jurisprudence, attuned to modern realities, that would become known as legal realism. Thayer’s students learned to confront with candor the fallibility of the bench and the uncertainty of the law. Most of all, he instilled in them an abiding faith that appointed judges must entrust elected lawmakers to remedy their own mistakes if America’s experiment in self-government is to survive.

In the eyes of his loyal disciples, Thayer was no mere professor; he was a prophet bequeathing to them sacred truths. His followers eventually came to preside over their own courtrooms and classrooms, and from these privileged perches they remade the law in Thayer’s image. Thanks to their efforts, Thayer’s insights are now commonplace truisms.

The Prophet of Harvard Law draws from untouched archival sources to reveal the origins of the legal world we inhabit today. It is a story of ideas and people in equal measure. Long before judges don their robes or scholars their gowns, they are mere law students on the cusp of adulthood. At that pivotal phase, a professor can make a mark that endures forever after. Thayer’s life and legacy testify to the profound role of mentorship in shaping the course of legal history.

Posted on by Mark Movsesian

Christianity’s American Fate?

I have to confess the publisher’s description of a new book from Princeton on American Christianity lost me at the get-go. “How did American Christianity become synonymous with conservative white evangelicalism,” the blurb for Christianity’s American Fate by Berkeley historian David Hollinger earnestly asks? I guess such a framing attracts an academic audience, always on the lookout for reassurance about its priors. But it’s misleading. First, of course, American Christianity comprises a lot more than Evangelicals. Second, although the majority of American Evangelicals are white, the most interesting fact about them is that they are becoming much less so over time. A PRRI study a few years ago revealed that one third of Evangelicals are members of racial and ethnic minorities. Among younger Evangelicals, the transformation is even more pronounced. About half of Evangelicals below the age of 30 are minorities. “PRRI found that ’22 percent of young evangelical Protestants are Black, 18 percent are Hispanic, and 9 percent identify as some other race or mixed race.'” The short answer to the question, how did American Christianity become synonymous with conservative white evangelicalism is, it’s not.

Readers of the book can judge for themselves. The publisher’s full description follows:

How did American Christianity become synonymous with conservative white evangelicalism? This sweeping work by a leading historian of modern America traces the rise of the evangelical movement and the decline of mainline Protestantism’s influence on American life. In Christianity’s American Fate, David Hollinger shows how the Protestant establishment, adopting progressive ideas about race, gender, sexuality, empire, and divinity, liberalized too quickly for some and not quickly enough for others. After 1960, mainline Protestantism lost members from both camps—conservatives to evangelicalism and progressives to secular activism. A Protestant evangelicalism that was comfortable with patriarchy and white supremacy soon became the country’s dominant Christian cultural force.

Hollinger explains the origins of what he calls Protestantism’s “two-party system” in the United States, finding its roots in America’s religious culture of dissent, as established by seventeenth-century colonists who broke away from Europe’s religious traditions; the constitutional separation of church and state, which enabled religious diversity; and the constant influx of immigrants, who found solidarity in churches. Hollinger argues that the United States became not only overwhelmingly Protestant but Protestant on steroids. By the 1960s, Jews and other non-Christians had diversified the nation ethnoreligiously, inspiring more inclusive notions of community. But by embracing a socially diverse and scientifically engaged modernity, Hollinger tells us, ecumenical Protestants also set the terms by which evangelicals became reactionary.

Posted on by Marc O. DeGirolami

At Notre Dame Next Week for Symposium on “Unconstitutional Conditions and Religious Liberty”

I’m looking forward to participating in this Notre Dame Law Review symposium on “Unconstitutional Conditions and Religious Liberty” next Monday, where I’ll present an early draft of a new paper, “Mysterizing Religion.” More soon on the latter. If any of our readers and/or listeners are in town, please do say hello!

Posted on by Marc O. DeGirolami

Secularism’s Equation of Sincerity With Religiosity

In one of the critical free exercise inquiries, courts are supposed to evaluate whether a religious claimant is “sincere” about his or her belief. Anything more than a pro forma inquiry into sincerity, however, is thought to be problematic. Nevertheless, an inquiry into the claimant’s religious sincerity seems to be one of the very few things courts can actually explore in evaluating free exercise claims.

But why is this? Why reduce religiosity as a legal matter to sincerity alone? A recent book suggests that it is characteristic of secular societies to deem sincerity as somehow at the core of religiosity. The book is Sincerely Held: American Secularism and Its Believers, by Charles McCrary (University of Chicago Press).

“Sincerely held religious belief” is now a common phrase in discussions of American religious freedom, from opinions handed down by the US Supreme Court to local controversies. The “sincerity test” of religious belief has become a cornerstone of US jurisprudence, framing what counts as legitimate grounds for First Amendment claims in the eyes of the law. In Sincerely Held, Charles McCrary provides an original account of how sincerely held religious belief became the primary standard for determining what legally counts as authentic religion.
 
McCrary skillfully traces the interlocking histories of American sincerity, religion, and secularism starting in the mid-nineteenth century. He analyzes a diverse archive, including Herman Melville’s novel The Confidence-Man, vice-suppressing police, Spiritualist women accused of being fortune-tellers, eclectic conscientious objectors, secularization theorists, Black revolutionaries, and anti-LGBTQ litigants. Across this history, McCrary reveals how sincerity and sincerely held religious belief developed as technologies of secular governance, determining what does and doesn’t entitle a person to receive protections from the state.
 
This fresh analysis of secularism in the United States invites further reflection on the role of sincerity in public life and religious studies scholarship, asking why sincerity has come to matter so much in a supposedly “post-truth” era.

Posted on by L&R Forum

Around the Web

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

  • The U.S. Supreme Court has denied review in Doe v. McKee. The certiorari petition asked the Supreme Court to review a decision made by the Rhode Island Supreme Court, which held that unborn fetuses do not have due process and equal protection rights under the U.S. Constitution and do not have standing to challenge Rhode Island’s Reproductive Privacy Act.  
  • In Redlich v. City of St. Louis, the Eighth Circuit affirmed the dismissal of a suit brought by a Christian pastor and his assistant challenging a city ordinance that required a permit to distribute potentially hazardous food. Plaintiffs had previously been cited for distributing bologna sandwiches to hungry people they encountered in St. Louis.
  • In Marte v. Montefiore Medical Center, a New York federal district court dismissed claims by a former Medical Center employee who sued after the Medical Center denied her a reasonable accommodation when she refused to receive the COVID vaccine. Among other things, the court rejected Plaintiff’s Title VII, free exercise, and equal protection claims. 
  • Suit was filed in a Maryland federal district court alleging that Baltimore’s sign permit ordinance violates Plaintiff’s free speech and free exercise rights. The complaint, in Roswell v. City of Baltimore, seeks a preliminary injunction to prevent the city from requiring Plaintiff to obtain permits in order to use A-frame signs when engaging in religiously-motivated sidewalk anti-abortion counseling near a Planned Parenthood facility. 
  • In Kariye v. Mayorkas, three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. Applying the Supreme Court’s test articulated in Kennedy v. Bremerton School District, the California federal district court dismissed the plaintiffs’ Establishment Clause challenge. The court also rejected, among other things, plaintiffs’ free exercise, freedom of association, and RFRA challenges.
  • Suit was filed in a Michigan federal district court by a woman who had worked as a physician assistant for seventeen years but was then fired for refusing, on religious grounds, to refer patients for gender-transitioning drugs and procedures and to use pronouns that corresponded to a patient’s gender identity rather than their biological sex. The complaint in Kloosterman v. Metropolitan Hospital brings Free Exercise and Equal Protection claims against Defendant. 
  • In Congregation 3401 Prairie Bais Yeshaya D’Kerestir, Inc. v. City of Miami, a Florida federal district court refused to dismiss claims that city officials’ harassment of a rabbi who hosted daily minyans at his home for guests violated the First Amendment. Private groups worshiping at a person’s home are permitted in residential areas under the city’s zoning code. 
Posted on by Mark Movsesian

The Tudors

Love them or hate them, there’s no denying that the Tudor Family had an outsized impact on church and state in the West. A current exhibit at the Metropolitan Museum of Art in New York explores Tudor politics and personalities–as well as the dynasty’s artistic legacy. The Yale University Press has released a companion volume, The Tudors: Art and Majesty in Renaissance England by Met curators Elizabeth Cleland and Adam Eaker. The publisher’s description follows:

A fascinating new look at the artistic legacy of the Tudors, revealing the dynasty’s influence on the arts in Renaissance England and beyond

Ruling successively from 1485 through 1603, the five Tudor monarchs changed England indelibly, using the visual arts to both legitimize and glorify their tumultuous rule—from Henry VII’s bloody rise to power, through Henry VIII’s breach with the Roman Catholic Church, to the reign of the “virgin queen” Elizabeth I. With incisive scholarship and sumptuous new photography, the book explores the politics and personalities of the Tudors, and how they used art in their diplomacy at home and abroad.

Tudor courts were truly cosmopolitan, attracting artists and artisans from across Europe, including Hans Holbein the Younger (1497/8–1543), Jean Clouet (ca. 1485–1540), and Benedetto da Rovezzano (1474–1552). At the same time, the Tudors nurtured local talent such as Isaac Oliver (ca. 1565–1617) and Nicholas Hilliard (ca. 1547–1619) and gave rise to a distinctly English aesthetic that now defines the visual legacy of the dynasty. This book reveals the true history behind a family that has long captured the public imagination, bringing to life the extravagant and politically precarious world of the Tudors through the exquisite paintings, lush textiles, gleaming metalwork, and countless luxury objects that adorned their spectacular courts.