Posted on by Mark Movsesian

Making American Religion Moderate

At the Law & Liberty site this morning, I review a new documentary on the history of religious freedom in America, “Free Exercise.” The film shows how minority religious communities–Catholics, Mormons, and others–have changed America over time. But, I argue, America has changed minority religions as well. Here’s an excerpt:

ike the Quakers, who went from being bottle-breaking radicals to sober citizens, Catholics and Mormons themselves changed in ways that made them less threatening to the American majority. One major point of contention between the Catholic Church and the wider American society had to do with religious liberty itself. The nineteenth-century Church was the Church of the Syllabus of Errors (1864), a papal document that condemned freedom of conscience and the separation of church and state as dangerous heresies. America’s Protestant majority saw this document and the values it espoused as hostile to fundamental American commitments. In the 1928 campaign, The Atlantic published an open letter questioning whether a Catholic like Smith could serve as president, citing the Syllabus and other papal pronouncements on church and state.

A hundred years later, though, and largely through the efforts of American Catholics like Fr. John Courtney Murray, the Second Vatican Council adopted Dignitatis Humanae, a document that specifically endorses religious liberty as a civil right. Catholic scholars have argued that Dignitatis Humanae and the Syllabus of Errors can be interpreted consistently with one another and that, from a theological perspective, there was no change. However theologians understand the situation, though, after Dignitatis Humanae, something had indeed changed as a practical matter. A major point of tension between the Catholic Church and American culture had disappeared, largely because of American influence.

Or consider the LDS Church. A primary source of conflict between Mormons and the wider American society in the nineteenth century had to do with plural marriage, the issue in cases like Reynolds and Davis. In 1890, however, the LDS Church officially ended the practice—making it possible for Utah to be admitted as a state six years later. Practically speaking, Mormonism changed in a way that made it much less threatening to the wider American public. Mormons conformed to social convention, and relations between the LDS Church and other Americans have been better ever since.

What causes religions in America to move toward the mean over time? Some argue that the Lockean ideology that underlies our First Amendment is designed to encourage religious moderation—to minimize religious “enthusiasms” that threaten social peace. If that’s the case, Lockeanism certainly seems to be working. Or perhaps another factor explains things. Two hundred years ago, Tocqueville wrote about the strong pressures for social conformity that exist in the United States, where he observed “little independence of mind.” Whether as a result of ideology or social norms, or both, the pattern is apparent.

You can read the full essay here.

Posted on by Mark Movsesian

Modernity and the Muslim State

Modernity, most people think, implies the separation of the state and religion. That has certainly been the case in the Christian West. But it has not been the case elsewhere, including in many Muslim-majority countries. Islam has never divided religion and the state in the same way the Christian West has, of course, and many states where Islam is the majority religion have aspired to modern administrative government while maintaining state identification with Islam. A new book from Princeton, The Making of the Modern Muslim State: Islam and Governance in the Middle East and North Africa, explores this phenomenon. The author is Islam scholar Malika Zeghal (Harvard). Here’s the publisher’s description:

In The Making of the Modern Muslim State, Malika Zeghal reframes the role of Islam in modern Middle East governance. Challenging other accounts that claim that Middle Eastern states turned secular in modern times, Zeghal shows instead the continuity of the state’s custodianship of Islam as the preferred religion. Drawing on intellectual, political, and economic history, she traces this custodianship from early forms of constitutional governance in the nineteenth century through post–Arab Spring experiments in democracy. Zeghal argues that the intense debates around the implementation and meaning of state support for Islam led to a political cleavage between conservatives and their opponents that long predated the polarization of the twentieth century that accompanied the emergence of mass politics and Islamist movements.

Examining constitutional projects, public spending, school enrollments, and curricula, Zeghal shows that although modern Muslim-majority polities have imported Western techniques of governance, the state has continued to protect and support the religion, community, and institutions of Islam. She finds that even as Middle Eastern states have expanded their nonreligious undertakings, they have dramatically increased their per capita supply of public religious provisions, especially Islamic education—further feeding the political schism between Islamists and their adversaries. Zeghal illuminates the tensions inherent in the partnerships between states and the body of Muslim scholars known as the ulama, whose normative power has endured through a variety of political regimes. Her detailed and groundbreaking analysis, which spans Tunisia, Morocco, Egypt, Turkey, Syria, and Lebanon, makes clear the deep historical roots of current political divisions over Islam in governance.

Posted on by L&R Forum

Around the Web

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

  • In Edgewood High School of the Sacred Heart v. City of Madison, Wisconsin, the 7th Circuit ruled against a religious school’s appeal for zoning approval to install lights for nighttime athletic events. The court found that the inability to host these events does not constitute a “substantial burden” on the school’s religious mission, noting that alternative venues could host such events, thus not impeding the school’s religious mission.
  • In Pendleton v. Jividen, the 4th Circuit found that a West Virginia prison’s dismissal of a Sufi inmate’s religious diet claim was incorrect. The inmate’s Sufi beliefs require a diet excluding soy, which cause him health issues, making soy-based foods religiously “Haram.” The court emphasized that an inmate does not need a medical allergy test to prove a substantial burden on religious practices, thus allowing his RLUIPA claim to proceed.
  • The Satanic Temple has filed a lawsuit in a Tennessee federal district court against the Memphis-Shelby County School Board, alleging unconstitutional hurdles in renting space for an After-School Satan Club.
  • Indiana Governor Eric Holcomb vetoed House Enrolled Act 1002, aimed at defining antisemitism in educational settings, citing its failure to fully adopt the International Holocaust Remembrance Alliance’s definition and examples, particularly concerning criticism of Israel.
  • The European Court of Human Rights ruled that Turkey violated Article 9 of the European Convention on Human Rights (concerning freedom of thought, consciousness, and religion) by convicting a conscientious objector for refusing reserve duty. The Court emphasized the absence of alternative service options for conscientious objectors in Turkish law, upholding previous case law on balancing societal interests and individual rights. Turkey is ordered to compensate the objector for non-pecuniary damage and costs.
Posted on by Mark Movsesian

American Delight

Scholars have noted the link between nineteenth-century Transcendentalists and twenty-first century Nones. In fact, you might think of Nones–it’s more correct to call them Spiritual Independents–as the New Thoreaus. A new book from the University of Chicago Press, The Delight Makers: Anglo-American Metaphysical Religion and the Pursuit of Happiness explores the links the connect the Transcendentalists and the Nones, including a shared focus on spiritual delight. The author is Catherine Albanese (University of California, Santa Barbara). Here’s the publisher’s description:

An ambitious history of desire in Anglo-American religion across three centuries.
 
The pursuit of happiness weaves disparate strands of Anglo-American religious history together. In The Delight Makers, Catherine L. Albanese unravels a theology of desire tying Jonathan Edwards to Ralph Waldo Emerson to the religiously unaffiliated today. As others emphasize redemptive suffering, this tradition stresses the “metaphysical” connection between natural beauty and spiritual fulfillment. In the earth’s abundance, these thinkers see an expansive God intent on fulfilling human desire through prosperity, health, and sexual freedom. Through careful readings of Cotton Mather, Andrew Jackson Davis, William James, Esther Hicks, and more, Albanese reveals how a theology of delight evolved alongside political overtures to natural law and individual liberty in the United States.

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Around the Web

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

  • In Bardonner v. Bardonner, the Indiana Court of Appeals upheld a custody order that prohibited a father from taking his son to his church. The court held that his free exercise rights were not infringed upon by this restriction as the child’s mother, the legal guardian of the child, had the right to determine the religious upbringing of her child.
  • In Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission, the Wisconsin Supreme Court held that the Catholic Charities Bureau and four of its sub-entities were not exempted from the state’s unemployment compensation law. The court reasoned that the controlling factor for qualification was whether the charity was operated primarily for religious purposes, and held that the charity’s purposes were instead charitable and secular.
  • The United States Commission on International Religious Freedom ended an official visit to the Kingdom of Saudi Arabia following a demand by Saudi officials to have USCIRF Chairman Rabbi Abraham Cooper remove his kippah while visiting a religious site.
  • In Miller v. McDonald, the District Court for the Western District of New York upheld the State of New York’s removal of religious exemptions from its mandatory student vaccination requirement. The Court held that the law was facially neutral, and the mere removal of existing religious exemptions is insufficient to prove hostility towards religion.
  • An observant Jewish passenger on a JetBlue flight filed suit against the airliner in the District Court for the Southern District of New York after being forced off the flight when he refused to sit next to a woman who wasn’t his wife or blood relative, on account of his religious beliefs.
Posted on by Mark Movsesian

The Legal History of the Church of England

When the Framers of the First Amendment thought of an established church, they would have had one particular example in mind: the Established Church of England. But the laws respecting the establishment of religion in Britain have changed across the centuries. Establishment today does not mean what it did in the 18th century–or the 16th, for that matter. A new collection of essays from Bloomsbury, The Legal History of the Church of England: From the Reformation to the Present, explores the changes. The editors are Norman Doe, who directs our sister Centre for Law and Religion at Cardiff University and whose work we have noted many times, and Stephen Coleman, the Cardiff Centre’s Assistant Director. Here is the publisher’s description:

This book provides the first comprehensive analysis of the principal legal landmarks in the evolution of the law of the established Church of England from the Reformation to the present day.

It explores the foundations of ecclesiastical law and considers its crucial role in the development of the Church of England over the centuries.

The law has often been the site of major political and theological controversies, within and outside the church, including the Reformation itself, the English civil war, the Restoration and rise of religious toleration, the impact of the industrial revolution, the ritualist disputes of the 19th century, and the rise of secularisation in the twentieth. The book examines key statutes, canons, case-law, and other instruments in fields such as church governance and ministry, doctrine and liturgy, rites of passage (from baptism to burial) and church property.

Each chapter studies a broadly 50-year period, analysing it in terms of continuity and change, explaining the laws by reference to politics and theology, and evaluating the significance of the legal landmarks for the development of church law and its place in wider English society.

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Student Writing Competition: The Program on Church, State & Society at Notre Dame Law School

The Program on Church, State & Society at Notre Dame Law School has announced a writing competition for law students focused on scholarship related to the intersection of church, state & society, and in particular, how the law structures and governs that intersection.

Papers should be focused broadly on topics related to church, state & society. The competition is open to law students and recent graduates not yet practicing law. Papers must be between 9,000-13,000 words, including footnotes and/or endnotes. Papers must be submitted by April 12th, 2024.

First Place, $3,000 cash award; Second Place, $2,000 cash award; Third Place, $1,000 cash award; Honorable Mention awards of $500.

For more information, please visit the competition’s website.

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Around the Web

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

  • In Apache Stronghold v. United States, the 9th Circuit refused to bar the government from transferring federally-owned forest land, significant to Western Apache Indians’ spirituality, to a copper mining company. The court stated that the transfer did not substantially burden religious exercise under RFRA and the Free Exercise Clause.
  • In Christian Employers Alliance v. U.S. EEOC, a North Dakota district court blocked the Department of Health and Human Services and the EEOC from enforcing Affordable Care Act and Title VII mandates that require Christian employers to provide insurance coverage for gender transition procedures. The court stated that these employers would have to violate their religious beliefs to comply with these mandates.
  • In Bair Brucha Inc. v. Township of Toms River, New Jersey, a New Jersey district court found that the town used land use regulations to impede the construction of a synagogue in order to prevent the growth of the Orthodox Jewish community. The court cited evidence of anti-Semitic animus as the motivating factor behind the regulations and rejected the township’s argument that subsequent amendments to zoning laws shielded them from liability.
  • In Crosspoint Church v. Maikin, a Maine district court rejected a request to block the state’s laws barring LGBTQ discrimination from applying to a Christian school receiving public funding. The court stated that the legislature had the authority to define protected classes despite the school’s objections due to a conflict with religious beliefs.
  • Jewish students at Columbia University have filed a lawsuit accusing the institution of widespread antisemitism. The complaint alleges discriminatory policies, support for anti-Jewish violence by faculty, and a lack of protection for Jewish students from harassment.
  • A Christian youth-mentoring ministry in Oregon has filed a lawsuit challenging an anti-discrimination rule adopted by the Oregon Department of Education. The ministry argues that the rule violates its Free Exercise and Free Expression rights by disqualifying it from receiving grants due to their religious hiring practices, which require adherence to a Statement of Faith.
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Legal Spirits 057: Historian Richard Brookhiser on Religious Freedom in America

In this episode, Center Director Mark Movsesian interviews historian Richard Brookhiser (left) about his new documentary, “Free Exercise: America’s Story of Religious Liberty.” How have minority religions tested and shaped America’s commitment to religious freedom over the centuries–and how has America changed those religions in return? From the Flushing Remonstrance of 1657 until now, it has been a grand story. Listen in!

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Posted on by Mark Movsesian

A New Book on Religion in Modern Ireland

Scholars frequently cite Ireland as an example of rapid secularization–how a country can go, in the space of one or two generations, from identifying strongly with a religion to viewing it with indifference and even hostility. In Ireland’s case, the collapse of Catholicism seems to have been particularly sudden and unanticipated, much like the similar “Quiet Revolution” that took place in Quebec, another overwhelmingly Catholic society, after 1968. A forthcoming collection of essays from Oxford, The Oxford Handbook of Religion in Modern Ireland, addresses this transformation, as well as other phenomena, including the rise of the Irish Nones. The editors are sociologist Gladys Ganiel and historian Andrew R. Holmes, both of Queen’s University Belfast. Here is the publisher’s description:

What does religion mean to modern Ireland and what is its recent social and political history? The Oxford Handbook of Religion in Modern Ireland provides in-depth analysis of the relationships between religion, society, politics, and everyday life on the island of Ireland from 1800 to the twenty-first century. Taking a chronological and all-island approach, it explores the complex and changing role of religion both before and after partition.

The handbook’s thirty-two chapters address long-standing historical and political debates about religion, identity, and politics, including religion’s contributions to division and violence. They also offer perspectives on how religion interacts with education, the media, law, gender and sexuality, science, literature, and memory. Whilst providing insight into how everyday religious practices have intersected with the institutional structures of Catholicism and Protestantism, the book also examines the island’s increasing religious diversity, including the rise of those with ‘no religion’.

Written by leading scholars in the field and emerging researchers with new perspectives, this is an authoritative and up-to-date volume that offers a wide-ranging and comprehensive survey of the enduring significance of religion on the island.