To all who celebrate, a very Happy Easter. ΠιχρίςΤος αϥτωΝϥ!
To all who celebrate, a very Happy Easter. ΠιχρίςΤος αϥτωΝϥ!
Thanks to Alan Meese and Nate Oman for hosting me last week at a symposium on Nate’s important new book, “The Dignity of Commerce.” (That’s me, above, interacting with the author). I learned a great deal. Nate has been a guest blogger here at the Law and Religion Forum, and it was good to catch up with him and with Alan, and to make some new friends. The symposium will appear later this year.
At the First Things site today, I have a post on the current blasphemy controversy in Denmark, which Marc discussed here last week. Prosecutors have brought a blasphemy charge against a man who posted a video of himself burning a copy of the Quran. I don’t favor Quran burning, of course. But I ask why a secular, progressive country like Denmark would bring a blasphemy prosecution in 2017:
The ironies abound. Blasphemy prosecutions are not so unusual in Muslim-majority countries, where they often serve as pretexts for the persecution of Christians and other religious minorities. In fact, this month marks the sixth anniversary of the murder of Shahbaz Bhatti, a Christian Pakistani politician who had criticized that country’s blasphemy laws; his murderers called Bhatti “a known blasphemer.” But blasphemy prosecutions are vanishingly rare in the West. In America, the Supreme Court ruled blasphemy laws unconstitutional in 1952. Most European countries have abolished their blasphemy laws; where such laws continue to exist, they are dead letters.
Moreover, Western countries have made opposing blasphemy laws a major international human rights cause. At the U.N. Human Rights Council, America and its European allies have objected strenuously to so-called “Defamation of Religion” resolutions introduced in recent years by Muslim-majority countries, on the ground that such resolutions encourage local blasphemy laws and stifle free expression. Since 2011, American and European diplomats have convinced proponents to accept a compromise resolution, one that condemns discrimination and the incitement of violence against persons on the basis of religion—a resolution protecting believers, rather than beliefs as such.
For a European government to bring a blasphemy prosecution in 2017, therefore, is incongruous, to say the least. And Denmark is one of the least religious places on the planet. True, it has a state church, to which the large majority of Danes belong. But that is mostly a formal thing. Religious belief and observance are quite low. Fewer than a third of Danes say they believe in God; only about 2 percent go to church each Sunday. And Danish authorities have turned a blind eye to blasphemy in the past. In 1997, for example, someone burned a copy of the Bible on a news broadcast on state television. The government did not file charges.
Why is it legal in Denmark to burn the Bible but not the Quran? You can read the whole post here.
Christianity has a complex relationship to law. It does not prescribe rules of conduct in the way its sister faiths, Judaism and Islam, do. There is no Christian law of inheritance, for example. Yet Christians have reflected on the idea of law, and on Christianity’s role in informing civil law, for centuries. And those reflections have influenced the development of Western law in ways that are undeniable, even in our secular age.
It’s entirely appropriate, therefore, for American law schools to offer courses in Christian Legal Thought. The problem is the lack of good materials–until now. Patrick Brennan (Villanova) and William Brewbaker (Alabama) have just written a new casebook, Christian Legal Thought: Materials and Cases, for use in law school classes. It looks great. Here’s the publisher’s description:
This text examines law and legal institutions through the broad lens of Christian thought, both Catholic and Protestant. The book addresses methodological issues in Christian legal scholarship (What makes legal thought “Christian”?); the relevance of Christian theological doctrines—such as creation, the Christian conception of the human person, the kingdom of God, and the natural and divine laws—for reflection on law; the significance of historical context for Christian legal thought; Christian reflection on important jurisprudential issues and concepts, such as equality, justice, rights, and the rule of law; and Christian perspectives on various legal subjects, such as contracts, torts, and property. The point of the book is less to prescribe what a Christian legal theory should entail in the way of outcomes than to use the Christian faith as a lens through which to understand, and reflect critically upon, law and legal institutions.
Congratulations to Patrick and Bill! Can’t wait to get my copy.
At the First Things site today, I reflect on this week’s nomination of Judge Neil Gorsuch to serve on the Supreme Court. In my opinion, he’s likely to be a solid conservative–the sort of judge that any Republican administration in the last generation could have nominated. Here’s an excerpt:
He holds to originalism in constitutional interpretation and textualism in statutory interpretation—two positions that have been the foundation for judicial conservatism since the 1980s. His record in religion cases is reassuring. On the free exercise side, he has shown sensitivity to the right of believers to claim exemptions from laws that substantially burden their religious exercise. And he has done so not only in the famous Hobby Lobby case, in which the claimants were conservative Christians, but in a case involving a Native American prisoner. In fact, his opinion in the latter case, Youngbear v. Lambert, is a sophisticated, engaging essay on the law of religious exemptions generally. Gorsuch is a clear and accessible writer—something one cannot say for many judges.
His opinions on the Establishment Clause side, less well known, are also encouraging. Judge Gorsuch has signaled his opposition to the thirty-year-old “endorsement test,” which forbids state-sponsored displays that a reasonable observer would understand as an endorsement of religion. The test is famously malleable, and Judge Gorsuch has criticized the way his own circuit, in particular, has misinterpreted it to forbid some traditional public displays—including, notably, a Ten Commandments monument. His apparent dissatisfaction with the endorsement test bodes well for restoring a more sane Establishment Clause jurisprudence that honors American traditions.
You can read the whole post here.
This morning at the Law and Liberty site, I have a post on the controversy surrounding President Trump’s executive order on immigration. I criticize the way the order was prepared and released, but also the unhinged reaction to it.
Here’s an excerpt:
And yet, the unhinged reaction to the order also doesn’t help. Don’t believe the hashtags: the order does not ban Muslim immigration to the US or impose a religious test for admission. The language is quite technical, and there are complications I lack space to address here. But, basically, the order does two things. First, it places a temporary ban on the admission of refugees from anywhere in the world, for 120 days, while officials review our current procedures to determine whether further security measures are necessary. After this 120-day period, the government will resume admitting refugees, up to 50,000 this year, under whatever new procedures officials devise.
The government will also be authorized, after 120 days, to give priority to refugees who are religious minorities and subject to persecution in their home countries. In an interview, President Trump indicated that he had Christians in mind. But by its terms the order extends to other religious minorities as well. In other words, it could cover Yazidi refugees from Iraq and Ahmadi Muslim refugees from Pakistan. It is not a unique preference for Christians—an issue I will address more in a moment.
You can read the whole post here.
At the Library of Law and Liberty this morning, I have a post on the Virginia Statute of Religious Freedom of 1786, the anniversary of which America marked last week. Among other things, I describe how Jefferson deftly combines Enlightenment and Evangelical Christian arguments to support religious freedom. Here’s a sample:
It’s fascinating, therefore, to go back and read the statute in its entirety. Three things stand out. First is the skillful way Jefferson combines two dramatically different strands of thought to justify religious freedom—Enlightenment Liberalism and Evangelical Christianity. (As a good lawyer, Jefferson knew how to make an argument in the alternative). “Truth is great and will prevail if left to herself,” the preamble declares; “she is the proper and sufficient antagonist to error.” Through free debate, people could reason their way to truth, in religion as in other matters. No justification existed, therefore, for prohibiting people from expressing their religious opinions and trying to persuade others.
This Enlightenment defense of free inquiry was not likely to convince everyone, though, so Jefferson added an argument from Evangelical Christianity as well. Religious freedom was the plan of “the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.” Establishments had resulted in “false religions over the greatest part of the world,” including, presumably, Catholicism and Islam. The point was clear: a good Evangelical Christian should support religious freedom, for Christianity’s sake. This combination of Evangelical and Enlightenment reasoning is a major theme in American church-state law, and it’s interesting to see how far back it goes.
That Jefferson, he was one shrewd lawyer. You can read the whole post here.
Congratulations to our former Law and Religion Fellow, John Boersma (left), for placing his article, The Accreditation of Religious Law Schools in Canada and the United States, in the current issue of the BYU Law Review. John, who’s now pursuing a PhD at LSU, wrote the paper in my comparative law and religion seminar a couple years ago.
Here’s the abstract:
Ongoing litigation in Canada suggests that the legal status of religiously affiliated law schools could be in jeopardy. In Canada, regulatory authorities have sought to deny accreditation status to a religiously affiliated law school (Trinity Western University) due to its commitment to a traditional Christian understanding of marriage. According to Canadian provincial authorities, this commitment has a discriminatory effect on LGBT students. Similar events could potentially occur in the United States. It is possible that American regulatory bodies could seek either to rescind or withhold accreditation from a religiously affiliated law school because of the discriminatory effects of its policies.
This comparative Article argues that as a matter both of public policy and law, the regulatory bodies concerned with the accreditation of law schools in both Canada and the United States have ample reason to accredit religiously affiliated law schools. First, as a matter of public policy, diversity in the type of law schools is beneficial due to the pluralism it engenders. Pluralism has long been recognized as a force for social stability in liberal democracies and is continually cited as beneficial by both Canadian and American courts. Furthermore, as a matter of law, both Canada and the United States provide for a robust protection of religious freedom that encompasses religiously affiliated law schools. This Article concludes that, as a result, regulatory authorities in Canada and the United States ought to encourage the proliferation of religiously affiliated law schools.
Readers can download the article here. Keep up the good work, John!
This past autumn, we hosted an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this post, Professor Muñoz responds to the comments of the symposium’s participants:
It’s gratifying when scholars you respect and admire take your work seriously. I am therefore deeply grateful for the symposium hosted by the Center for Law & Religion and to its directors, Mark Movsesian and Marc DeGirolami. I am especially appreciative of the symposium’s participants for their careful readings, probing questions, and thoughtful challenges to my post and the articles on which it was based.
The primary purpose of my recent scholarship has been to recover the American founders’ understanding of the natural right of religious liberty. That investigation is itself a prologue to addressing the more fundamental philosophical question of whether individuals actually do possess by nature a right to religious liberty and, if they do, whether we should adopt the founders’ understanding of it to guide our understanding of political justice.
One can best approach these fundamental questions as they appear in our political and constitutional practice, which right now means addressing the availability of religious exemptions from laws that religious believers find burdensome. That is why my original post focused on Justice Scalia’s Smith opinion. Most of the symposium participants followed my lead and commented on the jurisprudential implications of my natural rights argument. I note this only to clarify that my underlying purpose is not to defend Justice Continue reading
This morning at the Library of Law and Liberty site, I review the Morgan Library’s recent exhibit on the 500th anniversary of the 95 Theses, Martin Luther’s questions about Church teaching that sparked the Protestant Reformation. Although the exhibition doesn’t take sides, expressly, it’s pretty clear that Luther is the hero of their story — and I explain why:
Why does the Morgan favor Luther in his debate with the Church? It’s not because the management is Lutheran. It’s because, whatever the debate within Christianity on Faith versus Works—and both Lutheran and Catholic theology show more nuance than people typically understand—in the secular world, Luther has come to stand for the overthrow of traditional authority in favor of individual subjectivity. We typically mean something very different by “conscience” than he did in that statement at Worms, but his emphasis on individual conviction rather than received wisdom anticipates the preeminence of personal authenticity as a social and political value. That’s why Luther continues to appeal to our wider culture today.
You can read the whole post here.