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Around the Web

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

  • In Wallbuilder Presentations v. Mark, a D.C federal court granted a preliminary injunction against the removal of advertisements on a public bus that indicated that the American founders were Christians. The Court found that a local transit guideline banning advertisements that attempt to influence the public on controversial issues was unreasonable and susceptible to the biases of those overseeing its enforcement.
  • In Jane Does 1-11 v. Board of Regents of the University of Colorado, the 11th Circuit found that a policy granting religious exemptions for vaccinations only to certain religions violated the Free Exercise and Establishment Clauses. The Court rejected the university administration’s decision that only adherents of religions that expressly prohibit all immunizations may claim an exemption, holding that a government policy cannot use its own views of a belief’s legitimacy to judge whether it is sincerely held.
  • In Foothills Christian Ministry v. Johnson, a California federal court rejected a complaint by three churches against California’s Child Day Care Facilities Act which required all preschools to make acts of religious observation discretionary by the student’s parents. Because the Act allowed all registrants to reject the admission of any child whose parents refuse to allow their children to participate, the Court held that the plaintiffs lacked a cognizable injury.
  • In Roman Catholic Diocese of Albany v. Vullo, the NY Court of Appeals rejected a claim that the state’s religious exemption for mandatory coverage of medically necessary abortion was too narrow. The Court held that the state’s four-element test for qualification as a religious employer was generally applicable and therefore not subject to strict scrutiny, despite the alleged hardship of meeting the four elements.
  • A nondenominational church challenged a zoning objection made by the Town of Castle Rock, Colorado against the church’s use of an RV as temporary shelter for the homeless. The complaint alleges that the aforementioned objection violates the plaintiff’s Free Exercise Clause rights, citing multiple passages from Christian Scripture that mandate believers to tend to the homeless and hungry.
Posted on by Mark Movsesian

Missionary Diplomacy

American Christians have been trying to influence US foreign policy for hundreds of years. Occasionally, they have succeeded–where their advocacy coincided with what the US Government perceived of as the national interest. Protestant missionaries were historically quite active in this regard, especially in places like Ottoman Turkey, where their advocacy for Armenian and other Christians in the 19th century led to what Peter Balakian has called the first international human rights campaign in US history. (Unfortunately, this was one of the occasions where the missionaries’ efforts did not lead to significant US government support, a history I have recounted elsewhere). A new book from the Cornell University Press, Missionary Diplomacy: Religion and Nineteenth-Century American Foreign Relations, explores the role that missionaries have had in US foreign policy. The author is historian Emily Conroy-Krutz (Michigan State). The publisher’s description follows:

Missionary Diplomacy illuminates the crucial place of religion in nineteenth-century American diplomacy. From the 1810s through the 1920s, Protestant missionaries positioned themselves as key experts in the development of American relations in Asia, Africa, the Pacific, and the Middle East. Missionaries served as consuls, translators, and occasional trouble-makers who forced the State Department to take actions it otherwise would have avoided. Yet as decades passed, more Americans began to question the propriety of missionaries’ power. Were missionaries serving the interests of American diplomacy? Or were they creating unnecessary problems?

As Emily Conroy-Krutz demonstrates, they were doing both. Across the century, missionaries forced the government to articulate new conceptions of the rights of US citizens abroad and of the role of the US as an engine of humanitarianism and religious freedom. By the time the US entered the first world war, missionary diplomacy had for nearly a century created the conditions for some Americans to embrace a vision of their country as an internationally engaged world power. Missionary Diplomacy exposes the longstanding influence of evangelical missions on the shape of American foreign relations.

Posted on by Mark Movsesian

Rethinking Law and Religion

Law and religion, as an academic discipline, seems to be on the cusp of something new and different. It’s not just recent SCOTUS decisions that overturn 50 years of precedent, although that’s part of it. Crucially, Americans’ understanding of religion itself seems to be changing. And the polarization between traditional believers and more secularly-minded Americans continues to grow. So it’s not surprising that scholars (like my former colleague Marc, e.g.) are beginning to wonder just what “law and religion” will mean in the future as an academic subject. A new book from Edward Elgar, Rethinking Law and Religion, argues for a new, critical and interdisciplinary conception of the field. The author is Russell Sandberg (Cardiff University), and the publisher’s description follows. Thanks to our friend Paul Horwitz for drawing our attention to this.

This incisive book delineates the development of Law and Religion as a sub-discipline, critically reflecting on the author’s own role in constructing the field. It develops a subversive social systems theory in order to take both law and religion seriously and to challenge them equally.

Russell Sandberg crafts a new agenda for academic scrutiny of the interaction between religion and the law. Sandberg criticises scholarship to date for focusing on the legal regulation of religion, which reduces the field to an academic sub-discipline in Law Schools. Instead, Sandberg argues for a re-conceptualisation of Law and Religion as an interdisciplinary interaction, comparing it to fields such as legal history and legal geography. He contends that Law and Religion should take on a critical perspective, interrogating the content, nature and purpose of law, and drawing from literature on law and race and law and gender.

Provocative, personal and sometimes surprising, Rethinking Law and Religion is an illuminating read for students and scholars of law and society, legal theory, and sociology of law and philosophy.

Posted on by Mark Movsesian

How Islam Rules in Iran

People in the West often assume that government in Islam is a theocracy, but that isn’t quite true. If we define theocracy in traditional terms, as rule by clerics, classical Islam wouldn’t qualify–and very few contemporary Muslim-majority states would meet the definition, either. But the Islamic Republic of Iran is a theocracy–the Supreme Leader is a Shia cleric. A new book from Cambridge University Press, How Islam Rules in Iran: Theology and Theocracy, discusses the place of Islam in present-day Iran. The author is government scholar Mehran Kamrava (Georgetown University in Qatar). Here’s the description from the Cambridge website:

This study provides a comprehensive examination of the evolution of Islam as a ruling framework in postrevolutionary Iran up to the present day. Beginning with the position and structure of Iran’s clerical establishment under the Islamic Republic, Kamrava delves into the jurisprudential debates that have shaped the country’s political institutions and state policies. Kamrava draws on extensive fieldwork to examine various religious narratives that inform the basis of contemporary Iranian politics, also revealing the political salience of common practices and beliefs, such as religious guardianship and guidance, Islam as a source of social protection, the relationship between Islam and democracy, the sources of divine and popular legitimacy, and the theoretical justifications for religious authoritarianism. Providing access to many Persian-language sources for the first time, Kamrava shows how religious intellectual production in Iran has impacted the ongoing transformation of Iranian Shi’ism and ultimately underwritten the fate of the Islamic Republic.

Posted on by Mark Movsesian

Call for Papers: Australian Journal of Law & Religion

Our friends at the Australian Journal of Law and Religion have announced a call for papers for their 2024 General Issue, which will include a symposium on the rise of the Nones. Details in the link below:

Call-for-Papers-for-Australian-Journal-of-Law-and-Religion-2024-General-IssueDownload
Posted on by Mark Movsesian

Mattone Center’s Year-End Report

It’s been another productive academic year at the Mattone Center. The most important news, of course, is the transformational, multimillion dollar gift from Denise and Michael Mattone, for whom the Center is now named. We have also been busy with podcasts, blog posts, public events, faculty appearances, and writing. To read all about it, please check out our annual year-end report, below. Thanks!

MCLR Year In Review NewsletterDownload
Posted on by Mark Movsesian

On Tradition and Jack Balkin

At Law & Liberty today, I review Yale Law Professor Jack Balkin’s new book on tradition in constitutional law, Memory and Authority. Balkin makes some good points. He correctly describes how lawyers and judges use tradition in practice, and is right that the appeal of tradition–which is often multifarious and contested–depends on whether listeners feel connected to the past in the first place. But, I argue, Balkin’s definition of tradition is so elastic that it sometimes seems he isn’t talking about tradition at all:

For example, he praises Obergefell v. Hodges, which held that the Constitution confers a right to same-sex marriage, for its correct use of tradition. True, there is no “history of specific legal guarantees for same-sex marriage in American law.” But he argues that American tradition should be understood in a broader, more sensitive way, as a commitment to animating principles. The Obergefell Court correctly saw that the reasons why Americans historically have supported marriage generally obtained in the new context of same-sex marriage as well, and applied those reasons to reach a satisfactory present-day result. One can “alter or even reject existing practices,” he writes, “while being faithful to the country’s traditions of liberty.”

Now, one can praise or criticize the Court’s reasoning in Obergefell. But to paraphrase something Grant Gilmore said about Oliver Wendell Holmes in a different context, the magician who can traditionalize Obergefell can, the need arising, traditionalize anything. Tradition refers to concrete practices and accommodations that endure across time in a community, not abstractions like “liberty” or “equality” or “dignity” or “justice.” And one cannot plausibly claim that same-sex marriage is an American tradition in that sense. One must choose which traditions to follow and which to discard; that is the essence of modernity. But one cannot decide a case according to an abstract, indeterminate principle and call oneself a traditionalist. One may as well say that one is doing something new—that one is deciding a case based on one’s normative commitments and leave it at that.

You can read the review here.

Posted on by Mark Movsesian

On Tocqueville and “Double Secularization”

Regular readers of the Forum know of our interest in Tocqueville, the French visitor whose nineteenth-century observations about religion the United States in the nineteenth century remain relevant today. So we were very interested to see a forthcoming collection of essays to be released by Routledge this summer, and edited by two friends of the Center, Dutch scholars Sophie van Bijsterveld (Radboud University) and Hans-Martien ten Napel (Leiden University): Culture, Secularization and Democracy: Lessons from Alexis de Tocqueville. The book explores the “double secularization” that the West has experienced since Tocqueville–the decline in organized Christianity and the abandonment of classical political philosophy–and the effect ithas had on our democracy. Looks very interesting indeed. Here’s the publisher’s description:

Following the approach developed by Alexis de Tocqueville, this volume views democracy as a cultural phenomenon. It starts from the assumption that if we are to adequately address concerns about the current state and future of modern Western democracies, we need first to tackle the cultural preconditions necessary for the functioning of a democracy.

Since Tocqueville’s time, the book takes the most crucial change in the West to be ‘double secularization’. Here, this concerns, first, the diminished influence of organized Christianity. Even though secularity was partly a product of Christianity, secularization is highly significant in terms of the cultural underpinnings of Western democracy. Second, it involves a decreased interest in and knowledge of classical philosophy. Chapters on secularity, family life, civic life, and public spirit focus on central elements of the changed cultural foundation of democracy exploring issues such as identity politics, the public space, and the role of human rights and natural law in a pluralistic and resilient democracy. The volume concludes with a closer look at the implications of current presentism, that is, the view that only the present counts for the legitimacy and effectiveness of democratic systems. Finally, it asks if double secularization can also offer fresh opportunities for promoting the conditions of a viable democracy.

The book will be of interest to academics and researchers working in the areas of Law and Religion, Constitutional Law, Political Science, History and Philosophy.