In a new podcast from Parallax Views, I discuss the situation in Karabakh right now. Not for the first time, great power rivalries and human rights hypocrisy have led to the destruction of a vulnerable religious minority–this time, Armenian Christians. The host, J.G. Michaels, and I spend a lot of time on Western hypocrisy, in particular, and how Mideast Christians fail to gain much traction in Western politics. Mideast Christians are too Mideast for the Right and too Christian for the Left. Listen in: https://www.podbean.com/ew/pb-vdntv-14ba395
Lugato on Tradition in Customary International Law
It’s not a law-and-religion piece, exactly, but I’d like to draw attention to a fantastic essay by our Tradition Project partner, Professor Monica Lugato of LUMSA, on the role of tradition in customary international law. This is a complicated subject, and Monica handles it masterfully. I highly recommend it. The essay appears in a new collection, Human Society and International Law: Reflections on the Present and Future of International Law, published last summer by Wolters Kluwer and edited by Carlo Focarelli at Roma Tre. Here’s the publisher’s description:
Where is international law headed for? Should it rather head elsewhere, and why? These are the questions that the ten contributors to this first Special Volume in the Series Convivenza umana e diritto internazionale – Human Society and International Law have been asked to address, each one within their main area of expertise. The ten topics elected by the authors – all members of the Editorial Board of the new Series – make the three parts of this Volume, respectively on the making of international law (with chapters on the sources of international law; the principle of acquiescence; the codification of the right to development; and the legal status and transformative potential of the SDGs); the implementation of international law (with chapters on international custom and the traditionality of international law; the localising of international law; and the constitutional im- port of the SDGs); and the analysis of international law (with chapters on populism and the integrity of international law; the past, present and future of international law’s teaching; and the demands placed on legal analysis by the present climate crisis). As the questions posed to the contributors and the Volume’s subtitle suggest, this work was designed to encourage a reflection, by prominent scholars, on the dynamics of international law across a sample of key topics, mindful of the legal framework as a whole, and its trajectories over time. The underlying assumption – and wish – is that the Volume’s attempt to encourage an overall vision of the discipline, its most recent trends, and its theoretical framework (including of change) will inspire new theses and book proposals for the Series.
Ethnic Cleansing and the Rule of Law
In COMPACT Magazine today, I write about the ethnic cleansing of Armenian Christians now underway in Karabakh. Largely, what’s happening is the result of great powers looking the other way. Here’s an excerpt:
In fact, the ethnic cleansing of Karabakh probably serves many interests. For the Russians, it’s a way of pressuring Armenia to overthrow its pro-Western government. For the United States and Europe, it ends an embarrassing moral quandary and allows them to continue to curry favor with Azerbaijan and Turkey. Just as Moscow tries to pull Ankara to its side, Washington wants very much to keep Ankara in the NATO tent.
And for Turkey and Azerbaijan, it’s another victory in a plan to eliminate the Armenian Christian presence in the South Caucasus and create a pan-Turkic empire stretching from Istanbul to Central Asia, a dream that goes back to the time of the First Armenian Genocide a century ago, during which the Ottoman Empire killed up to 1.5 million Armenians in mass deportations. In fact, Baku already claims Armenia proper as “Western Azerbaijan”—a country that has never existed—and both it and Turkey insist on a sovereign corridor across Armenia to link Azerbaijan and Nakhichevan. Erdogan promises to “fulfill the mission of our grandfathers in the Caucasus.” Will the United States stop him? Will Russia?
Around the Web
Here are some important law-and-religion news stories from around the web:
- In López Prater v. Trustees of Hamline University, a federal district court in Minnesota refused to dismiss plaintiff’s claim that her university employer discriminated against her based on religion. Plaintiff, a professor who was disciplined for showing depictions of the Prophet Muhammad in an art class, argues that she would not have been disciplined if she had been a Muslim.
- Twelve Muslim plaintiffs filed a lawsuit against 29 federal officials in a Massachusetts district court, alleging that the officials violated their federal civil rights by adding them to a terrorist watchlist under vague criteria, Plaintifs claim they were unaware of their inclusion and had no recourse to challenge or comprehend the officials’ decision.
- In Mirabelli v. Olson, the Southern District of California issued a preliminary injunction to prevent adverse employment action by the Escondido Union School District against two teachers who objected on religious grounds to the district’s policy of maintaining faculty confidentiality when communicating with parents about a student’s change in gender identity. The court found that the district’s policy conflicted with the teachers’ sincere religious beliefs in accurate communication with parents and that the district’s non-disclosure to parents policy was not narrowly tailored and could potentially cause more harm than good.
- Several Jewish groups have filed a lawsuit against the Santa Ana Unified School District Board of Education, alleging that the district’s ethnic studies curriculum includes antisemitic and anti-Israel content, and that the district violated the “Brown Act” by providing inadequate notice and permitting harassment during school board meetings. At one meeting, attendees reportedly made antisemitic remarks, threatened Jews and Israelis, and displayed hostility toward Jewish participants.
- In 2022, a Kentucky district court found that Kim Davis, the Rowan County Clerk, violated the constitutional rights of two same-sex couples by refusing to issue them marriage licenses due to religious reasons, and a jury was tasked with determining damages. Recently, in separate trials, the jury in the case of Yates v. Davis awarded zero damages, while in the second case, Emold v. Davis, the jury granted damages totaling $100,000.
- In Davis v. Wigen, the 3rd Circuit overturned a district court’s dismissal of a RFRA claim filed by a former federal inmate and his fiancée against a private prison for denying their marriage request. The court ruled that the denials, while not explicitly forcing them to violate their faith, placed a significant burden on their religious beliefs, highlighting that government actions closely related to religious practices can be considered a substantial impediment under RFRA.
Prophecy and Politics
The strict separationist model of religion and politics that long has held sway in this country (or, at any rate, that was said to hold sway) often obscured the highly political qualities of religious belief and practice. Among these is certainly the power of prophetic witness, a mode of political engagement that is often uncompromising, idealistic, critical, and even apocalyptic. Professor Cathy Kaveny once called this style of politics “moral chemotherapy.” Indeed, it is an open question whether this mode of politics or its alternative (moderate, realistic, whiggish, pragmatic) is the more effective in implementing its respective vision. And this is one more area of overlap or interaction between law and religion that has been suppressed from view and study in the American liberal dispensation.
Here is a fascinating looking new book that helps to remedy this problem: The Third Sword: On the Political Role of Prophets (Cambridge University Press), by James Bernard Murphy (Dartmouth).
Prophets are wild cards in the game of politics, James Bernard Murphy writes in this startling new book. They risk their lives by calling out the abuses of political and religious leaders, forcing us to confront evils we would prefer to ignore. By setting moral limits on political leaders, prophets chasten our political pretensions and remind us there are values that transcend politics. They wield a third sword—distinct from the familiar swords of state and church power—their sword is the word of God. The Third Sword offers a new take on political history, illustrating a theory of prophetic politics through tales of political crises, interspersed with direct dialogue between the prophets and their persecutors. With chapters on Socrates, Jesus, Joan of Arc, Thomas More, and Martin Luther King, Murphy brings these prophets to life with storytelling that blends biography, history, and political theory.
Movsesian Interviewed on the Karabakh Situation
I spoke again yesterday with Al Kresta of Ave Maria Radio and EWTN about Karabakh and the failure of the U.S. to live up to its rhetoric about preventing the ethnic cleansing of Armenian Christians. You can listen to the interview here:
Traditionalism?
As Forum readers know, tradition has been a focus of ours here at the Center. So it’s with interest that we saw a new book from Oxford on the subject, Traditionalism: The Radical Project for Restoring Sacred Order, by historian Mark Aarhus (Aarhus). It looks very interesting, indeed. But the description on the Oxford website is a bit puzzling in one respect. As examples of the major proponents of traditionalism it gives René Guénon, Julius Evola, and Frithjof Schuon, along with Steve Bannon. Burke? Oakeshott? Kirk? At least in the English-speaking world, those names are a lot more prominent. Maybe the book discusses them, too. Anyway, here’s the description:
From a leading expert comes an intellectual history and analysis of Traditionalism, one of the least known and most influential philosophies that continues to impact politics today
Traditionalism is a shadowy philosophy that has influenced much of the twentieth century and beyond: from the far-right to the environmental movement, from Sufi shaykhs and their followers to Trump advisor and right-wing provocateur Steve Bannon. It is a worldview that rejects modernity and instead turns to mystical truth and tradition as its guide.
Mark Sedgwick, one of the world’s leading scholars of Traditionalism, presents a major new analysis, pulling back the curtain on the foundations of Traditionalist philosophy, its major proponents–René Guénon, Julius Evola, and Frithjof Schuon–and their thought. One of Traditionalism’s fundamental pillars is perennialism, the idea that beneath all the different forms of religion there lies one single timeless and esoteric tradition. A second is the view that everything is getting worse, rather than better, over time, leading to the Traditionalist critique of modernity. Sedgwick details Traditionalism’s unique ideas about self-realization, religion, politics, and many other spheres.
Traditionalism provides an expansive guide to this important school of thought–one that is little-known and even less understood–and shows how pervasive these ideas have become.
The Uneasy Relationship of Libertarianism and Religion
Libertarianism is a political philosophy that maximizes individual liberty and minimizes government power. That’s a quick and dirty definition, and it misses all sorts of nuance that I cannot get into here. But it’s probably fair to say that even on this understanding, libertarianism’s tensions with organized religion, with the authority of received wisdom, with what binds a (political) community, and with the force of tradition generally, should be evident. Not that these cannot be negotiated, softened up, accommodated, and so on. But the tensions remain, and they go to the heart of the very different projects and perspectives of libertarianism and organized religion (disorganized, individuated religion, such as it is, may well be another matter).
Here is a very interesting new work (published last spring) on the history of libertarian thought. It’s interesting to observe, in respect of some of my comments above, that the authors describe libertarianism as a 19th century phenomenon that, of course, influenced political thought in the 20th century, too. Its history is quite recent and coincides roughly with the social decline of organized religion, at least in Western nations. The book is The Individualists: Radicals, Reactionaries, and the Struggle for the Soul of Libertarianism (Princeton University Press), by Matt Zwolinski and John Tomasi.
Libertarianism emerged in the mid-nineteenth century with an unwavering commitment to progressive causes, from women’s rights and the fight against slavery to anti-colonialism and Irish emancipation. Today, this movement founded on the principle of individual liberty finds itself divided by both progressive and reactionary elements vying to claim it as their own. The Individualists is the untold story of a political doctrine continually reshaped by fierce internal tensions, bold and eccentric personalities, and shifting political circumstances.
Matt Zwolinski and John Tomasi trace the history of libertarianism from its origins as a radical progressive ideology in the 1850s to its crisis of identity today. They examine the doctrine’s evolution through six defining themes: private property, skepticism of authority, free markets, individualism, spontaneous order, and individual liberty. They show how the movement took a turn toward conservativism during the Cold War, when the dangers of communism at home and abroad came to dominate libertarian thinking. Zwolinski and Tomasi reveal a history that is wider, more diverse, and more contentious than many of us realize.
A groundbreaking work of scholarship, The Individualists uncovers the neglected roots of a movement that has championed the poor and marginalized since its founding, but whose talk of equal liberty has often been bent to serve the interests of the rich and powerful.
Around the Web
Here are some important law-and-religion news stories from around the web:
- In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, the 9th Circuit Court of Appeals, sitting en banc, held that Fellowship of Christian Athletes (FCA) is entitled to a preliminary injunction requiring the school district to restore recognition to FCA chapters as student clubs. The school district revoked FCA’s recognition as a club because FCA requires its officers to affirm a Statement of Faith and abide by a sexual purity policy, which the 9th Circuit said violated the club’s Free Exercise and Free Speech rights.
- In Catholic Healthcare International, Inc. v. Genoa Charter Township, the 6th Circuit Court of Appeals ordered a Michigan federal district court to enter a preliminary injunction that will allow a Catholic healthcare organization to restore a Stations of the Cross prayer trail as well as a stone altar and mural after Genoa Township zoning officials insisted that the Prayer Trail should be treated as a church for zoning purposes. Plaintiffs argued that the zoning ordinance as applied to them violates RLUIPA, and the 6th Circuit agreed.
- In Damiano v. Grants Pass School District, two Oregon educators filed their opening brief in the 9th Circuit after a federal district court ruled against them. The educators were terminated after they voiced their opinions online about gender identity education policy solutions, rooted in their religious beliefs, which they claim violated their Free Exercise and Free Speech rights.
- In Virden v. Crawford County, Arkansas, the Western District of Arkansas denied plaintiffs’ request for a preliminary injunction after the Crawford County Library System implemented a policy removing books with LGBTQ+ themes from the children’s sections of the libraries. Plaintiffs claim this violates the Establishment Clause because the policy was implemented due to pressure from religious objectors. However, the court left open the possibility of a narrower injunction later on.
- In The Catholic Store, Inc. v. City of Jacksonville, the Middle District of Florida entered a consent decree which concluded that The Catholic Store, a privately owned Catholic book store in Jacksonville, is exempt from Jacksonville’s public accommodations law. The order exempts the bookstore from the non-discrimination provisions relating to sexual orientation and gender identity.
- France’s Council of State upheld the government’s ban on Muslim girls wearing the abaya at school. The court found that the ban did not constitute a serious interference with private life, freedom of worship, or the right to education.
Steve Smith on the Disintegrating Conscience
Our friend (and sometime contributor) Steve Smith of San Diego Law School writes a ton and all of it is worth reading: engaging, erudite, and thought-provoking. His latest book, The Disintegrating Conscience and the Decline of Modernity, forthcoming next month from Notre Dame Press, explores the way the concept of “conscience,” so central to religious freedom, has shifted–actually, disintegrated–over the centuries. It’s a paradox, he writes. Protecting conscience remains a fundamental Western commitment across centuries, but conscience means something very different than it did 500 years ago, something more personal, even solipsistic. Steve’s apparently not optimistic about where this will lead us. Here’s the description from the publisher’s website:
This book considers how the modern concept of “conscience” turns the historic commitment on its head, in a way that underlies the decadence of modern society.
Steven D. Smith’s books are always anticipated with great interest by scholars, jurists, and citizens who see his work on foundational questions surrounding law and religion as shaping the debate in profound ways. Now, in The Disintegrating Conscience and the Decline of Modernity, Smith takes as his starting point Jacques Barzun’s provocative assertion that “the modern era” is coming to an end. Smith considers the question of decline by focusing on a single theme—conscience—that has been central to much of what has happened in Western politics, law, and religion over the past half-millennium. Rather than attempting to follow that theme step-by-step through five hundred years, the book adopts an episodic and dramatic approach by focusing on three main figures and particularly portentous episodes: first, Thomas More’s execution for his conscientious refusal to take an oath mandated by Henry VIII; second, James Madison’s contribution to Virginia law in removing the proposed requirement of religious toleration in favor of freedom of conscience; and, third, William Brennan’s pledge to separate his religious faith from his performance as a Supreme Court justice. These three episodes, Smith suggests, reflect in microcosm decisive turning points at which Western civilization changed from what it had been in premodern times to what it is today. A commitment to conscience, Smith argues, has been a central and in some ways defining feature of modern Western civilization, and yet in a crucial sense conscience in the time of Brennan and today has come to mean almost the opposite of what it meant to Thomas More. By scrutinizing these men and episodes, the book seeks to illuminate subtle but transformative changes in the commitment to conscience—changes that helped to bring Thomas More’s world to an end and that may also be contributing to the disintegration of (per Barzun) “the modern era.”