Interviewed in the Deseret News

Religion journalist Kelsey Dallas, a past guest on Legal Spirits, interviews me in the Deseret News about my forthcoming essay in the Journal of Law and Religion on courts’ responses to Covid restrictions on public worship. Here’s a sample:

The COVID-19 pandemic has created all sorts of religious freedom conflict, as people of faith fight gathering restrictions, mask requirements and, more recently, vaccine mandates.

Your view on these legal battles likely depends on your professional, spiritual and political interests. Mark L. Movsesian, co-director of the Center for Law and Religion at St. John’s University in New York, saw them as opportunities to study the limits of the United States’ approach to religious liberty protections. . . .

When there are no easy, obvious answers, judicial bias can creep in. That’s always problematic, but it’s especially so at a time when liberal and conservative judges often have very different views on the value of faith and what should win out when religious freedom is in conflict with other rights.

“As long as we don’t have a common baseline for how important religion is compared to other things, we’re going to have inconsistent opinions” from the legal system, Movsesian said. And with inconsistent opinions comes political and social strife.

You can read the whole interview here.

Today’s Panel on Cultural Heritage

I enjoyed participating in today’s webinar on cultural heritage in law and diplomacy, with fellow panelists Narine Ghazaryan (Nottingham), Leonard Hammer (Arizona), Evangelos Kyriakidis (Heritage Management), Sergio La Porta (Fresno State), Peter Petkoff (Oxford), Elizabeth Prodromou (Fletcher School) and Michalyn Steele (BYU). The Fletcher School at Tufts, Oxford, and Fresno State co-sponsored the event, along with our own Center. Fletcher will eventually make the video available on its site.

Law, Religion, and the Covid Crisis

I have a new draft on SSRN, “Law, Religion, and the Covid Crisis,” comparing how courts across the globe have approached restrictions on public worship and exploring what the cases reveal about social divisions, especially in the United States. Here’s the abstract:

This essay explores judicial responses to legal restrictions on worship during the COVID pandemic and draws two lessons, one comparative and one relating specifically to US law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the US, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the US, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the US, specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-lifetime pandemic.

The essay will appear in the forthcoming volume of the Journal of Law and Religion. Comments welcome!

Evangelos Kyriakidis, “The destruction of heritage as an extreme form of affront to humanity”

This Thursday, along with Tufts, Oxford, and Fresno State Universities, our Center will co-sponsor a webinar on cultural heritage in law and diplomacy. In advance of that event, we are publishing here short posts by the participants, which will serve as the basis for discussion at the webinar.

In this contribution, Evangelos Kyriakidis (Heritage Management Organization) explains why the destruction of cultural heritage is an extreme form of an affront to humanity.

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Heritage, be it in the form of monuments, customs, stories, songs, old photos or other, constitutes an important part of our identity, who we think we are, our language, the groups we associate ourselves with, whom we consider kin, friend or foe. Our sensation that we share views about heritage with others gives us the feeling that we have a shared identity, makes us feel we belong somewhere. It is for that reason that heritage is the cornerstone of who we are, how we feel about ourselves and our affiliations.

Heritage that is purportedly shared with others gains in importance and influence. If a society is a group of people that is conscious of having at least one thing in common, then a society that identifies itself as a group because of its shared heritage would consider that heritage as crucial for its existence. Historically, nations do that; they refer to a shared heritage, be it imagined or real, that defines them as a group. And that national heritage becomes a crucial reference point for all members of that nation. In the 19th century and many times since, heritage has been used to define, but also to exclude. So heritage, be it the exploits of Alexander, the Crescent and the Star, the city of Kiev, the 1389 battle of Kosovo, and so on has not only been used to define people and make them proud, it has also been used to exclude others, despite the fact that it did not have to.

Religion, like the nation, refers to a belief system that people are consciously sharing; they are therefore defined by it as individuals or as members of social groups. A religion and its key figures are figures that are greater than the self. They are therefore crucial risk adaptation mechanisms. God will always be there irrespective of the calamity that has befallen a society. Calamities indeed often are explained through religion, but, more important, the days that follow a calamity are often managed through religion. A religious site is a site that a particular religious belief system considers as important. It usually is a site that concentrates people, either because it is a site where regular religious rituals take place; because it is a pilgrimage site, a site where people are moving through or towards in order to fulfil a religious purpose; or because it is a site that is significant in the narrative of that religion (or all of the above). These sites are often vested with great importance, because they are significant in that belief system. And in case of a disaster, religious sites are sites of refuge, sites where people can find peace, where they can plan their next day, gather and continue the thread of society. There is a significant body of research, especially in the scholarship on aphasia, Alzheimer’s and storytelling, that shows how material objects, buildings or other, are great focusing points for storytelling.* In religious belief systems, religious sites are important nodes for storytelling, they are gathering sites that reconfirm social structures and norms, they are important places to connect with something that is greater than the individual, that also confirms the identity of that individual as a part of society (as that is defined here as a group of people that is conscious of having at least one thing in common).

The destruction of a site of national importance or of a site that has religious importance is not only an attack on humanity’s treasures. It is not only an affront to the international community, the treasures of human genius as some organizations would like to put it or, ultimately, our self-indulgence. It is an irreparable damage to the social groups that are defined by these sites. It is a destruction of the very foundations of their identity and therefore of their being. This often happens in times of war; climatic disasters can bring this about, too.

This is tantamount to what is called cultural genocide, attempting to eradicate from the face of this planet the testimony of a people, of a religious group. What I am arguing here, however, is that this is not about testimony. It is not about memory. It is about identity. Imagine for instance ourselves, in what we call the West, who have been raised as appreciating as a cornerstone of our existence our civil liberties. Imagine a world with no civil liberties. We have already been given elements of a taste of that. Now imagine these civil liberties to be taken away forever and our never having the opportunity to rebuild them. What sort of world would we give to our children? What would life be like? Now imagine groups of people whose religious sites have been taken away, have been demolished, or given to another religion irrevocably. Imagine people destroying your gods. Who will protect you in times of danger, how will you teach your children how things used to be, how will a new normal come about in times of crisis? This is not about social diversity, human genius, the education of our children: this destruction is a severe, irrevocable blow to the foundations of who people are, what they live for, how they want to raise their family. Destroying heritage does that.

Finally, given that heritage sites often live for thousands of years, the systematic destruction of heritage that some parties follow through the course of decades is something that must be on the one hand seen in its totality (like the effects of hundreds of years of natural erosion on a building is seen altogether) but also be recognized as a conscious, systematic attack against the principles at the foundations of humanity (of every regime). It is a crime that most instances of genocide pale against. It is not only wiping people from the face of the earth. It is making sure they never come back. It is making sure that not even shadows exist in the underworld. Unfortunately, this last most hideous of crimes goes unnoticed and, even worse, unpunished.

* Zeisel, J. I’m Still Here: A New Philosophy of Alzheimer’s Care (2009)

Michalyn Steele on the Cultural Property of Indigenous Peoples

This Thursday, along with Tufts, Oxford, and Fresno State Universities, our Center will co-sponsor a webinar on cultural heritage in law and diplomacy. In advance of that event, we are publishing here short posts by the participants, which will serve as the basis for discussion at the webinar.

In this contribution, Michalyn Steele (Brigham Young University) addresses issues surrounding the cultural property of Indigenous peoples:

* * *

In an increasingly mobile, global society, the significance of place as integral to cultural and spiritual identity can be elusive. While there are a wide variety of beliefs and practices among Indigenous peoples, many Indigenous peoples conceive of themselves as people of a particular place. Especially for the Indigenous peoples of North America, their origin stories and creation cosmologies tie their identity, their purpose, and their worship inextricably to those places of sacred origin and obligation. In this conception, land is not fungible and sacred practices are not transferrable to new locations when peoples are displaced. Depriving Indigenous people of meaningful access to these sites or despoiling the sacred character of these sites irreparably compromises their ability to practice their religion. The failure to appreciate the sacred character of Indigenous sacred sites or the callous calculation that reduces these sites to their economic exploitability does existential damage to the religious liberty of the Indigenous people.

Take, for just one example, the Lakota peoples and Paha Sapa, the area around the Black Hills that the Lakota hold most sacred as “the heart of everything that is” and the womb of Mother Earth. The discovery of gold by settlers despoiled the Lakota people of their legal interests in Paha Sapa in violation of their treaties with the federal government. They were cut off from their sacred sites and thereby deprived of access to crucial religious rituals. In 1980, the United States Supreme Court found that the Black Hills had been taken from the Lakota people by coercion and deception, and the tribes were awarded significant money damages. However, the Lakota people, among the poorest communities in the United States, have refused the money, maintaining that Paha Sapa was never for sale. They never wanted the money, they wanted access to their sacred sites.

As with the Lakota, the all-too-common shared histories of Indigenous peoples involve violence to Indigenous identity, cultural cohesion, and religious liberty. In the United States, the 574 federally-recognized tribes and many other tribes lost to the modern era or still seeking recognition, share variations on the theme of a history of cultural, political, geographic, and religious displacement. The driving forces of this historical assault were the twin animating principles behind Manifest Destiny: the inexhaustible appetite for the lands and resources of the tribes by would-be settlers with their certainty of a divinely-sanctioned superior right to those resources, and an abiding conviction in the supremacy of non-Indian religion and culture. These principles led the United States to embrace the coordinated policies of forced allotment and assimilation to clear title to Indigenous land holdings for settlement and to induce tribal peoples to abandon their lands, language, identities, and religion.

President Theodore Roosevelt said the allotment policy was to act as a “great pulverizing engine” to break up the tribal land mass.  Similarly, the United States implemented a policy to strip tribal children of their language and religion by placing them in boarding schools, where they were educated as domestic servants and forbidden from speaking their Indigenous languages or participating in their traditional religious rites. Their hair was cut and their clothing taken. Many children went years without seeing their parents and many experienced devastating isolation upon an attempt to return to their homes and territories.

As a result of this cultural-religious violence, many Indigenous communities now must rely on the permission of private landowners or governmental agencies to access sacred sites lost during this process. President Clinton’s 1996 Executive Order 13,007 directed governmental agencies to seek to accommodate religious use and access for tribes. But the effort has met with mixed success at best. Congress passed an unenforceable bill, a mere sense of the Congress resolution, that Indigenous sacred sites should be protected and preserved. The Supreme Court has wrestled with fitting the requirements of the First Amendment’s religious liberty protections to the site-specific requirements of Indigenous religious practice. Even the Religious Freedom Restoration Act, designed in part to compel the federal government to justify its substantial burdens on religious exercise, has been a mostly impotent tool in crafting protection and access to Indigenous sacred sites.

In sum, the legal protections and political will to provide meaningful access and protection to Indigenous sacred sites in the United States has been ineffectual. Until people of good faith and good will join together to seek accountability for prioritizing Indigenous access to sacred sites, the violence to Indigenous religion continues.

Leonard Hammer, “Some Thoughts on Cultural Heritage Protection”

This Thursday, along with Tufts, Oxford, and Fresno State Universities, our Center will co-sponsor a webinar on cultural heritage in law and diplomacy. In advance of that event, we are publishing here short posts by the participants, which will serve as the basis for discussion at the webinar.

In this contribution, Leonard Hammer (University of Arizona) offers some thoughts on cultural heritage protection.

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Some of the key missing tools in cultural heritage protection are the lack of involvement of local/grassroots communities and minority groups in decision making regarding approaches towards engagement and scope of protection to be implemented. The top-down framework is centered on the state, largely a result of the international system’s structure that prevents involvement of important voices and serves to actually stymie protection efforts before, during, and after conflict, especially because local and minority groups might be the very targets of such action.

Another important aspect to consider is the integration of cultural heritage protection norms in a meaningful and effective manner, so as to incorporate all involved players in conflicts and post-conflict settings—especially non-state actors. I know this is a tall order but the current normative system is seriously lacking avenues or instruments that do so.

Granted, we have developments in post-conflict tribunals going after non-state actors who violated cultural heritage. Yet the problem with ex-post facto tools like the International Criminal Court or the attempt to link cultural heritage destruction with crimes like genocide is that they only pursue the serious violations and, sadly as we have seen thus far with the ICC, focus on areas that are the result of extending geo-political conflicts between actors into an additional arena. Further, current international tribunals only address serious violations, when cultural heritage protection demands more focused protection given the fragile nature of items at risk and the broad impact on communities—meaning there exists a strong disconnect between the scope of damage to a place (say a local church or mosque) and the level of “damage” or hurt to the targeted group—especially in the context of sacred space.

In the conflict context, whilst I know the ICRC and regional organizations like NATO and state military forces are attempting to integrate cultural heritage protection norms into their manuals and plans of action, there still exists a strong need for engagement and involvement of all actors to the conflict, in the same manner and level as would be for combat protection. That is, while a human life of course merits protection, it is asserted that integrating cultural heritage protection norms and understanding of cultural heritage protection (why it is to be done and what benefits can derive therefrom) into discourse with non-state actors and local communities would go a long way towards adequate cultural heritage protection. Indeed, many times non-state actors are not even aware of what cultural heritage protection is nor why it might matter. For many non-state actors, of course, they are deliberately targeting sacred space, which raises the question of the long-term interests of such actors (an angle that can be explored should they really seek to establish their own form of governance) and a better understanding of their own edicts and norms regarding the sacred space of the other.

Note too that state actors heavily rely on military necessity in a manner that might allow for too broad forms of military action when more nuanced action might be best or feasible.

Of course, cultural heritage protection does and can serve a positive role as a conduit for engagement and for healing—but again, with the involvement of local actors and grassroots movements to adequately incorporate and allow for post-conflict healing to emerge.

Finally, one should consider HOW we go about integrating civil society and international organizations into CHP along with to what extent we want to do so. Civil society, for example, maintains specific goals and interests that are many times beholden to either their donors, their “home state” interests, or subject to internal politics and bickering on the ground. Thus, civil society actors might merely echo the interests of a given side rather than act for the goal of cultural heritage protection.

This is something I desire to take a deeper look at when thinking about the socialization of cultural heritage protection norms in a constructivist, global governance, type of construct.

Narine Ghazaryan, “Artsakh and the Destruction of Armenian Cultural Heritage”

This Thursday, along with Tufts, Oxford, and Fresno State Universities, our Center will co-sponsor a webinar on cultural heritage in law and diplomacy. In advance of that event, we are publishing here short posts by the participants, which will serve as the basis for discussion at the webinar.

In this contribution, Narine Ghazaryan (University of Nottingham) discusses the destruction of Armenian cultural sites following the Second Karabakh War last year.

* * *

Destruction of cultural heritage is as old as the world itself. Even though it can happen without malice in some cases, more often it is a means of asserting control over a territory by erasing its history with its past civilisations or challenging the identity of its contemporary inhabitants.

The destruction of the cultural heritage of the Armenian population of Nagorno-Karabakh or Artsakh was a distinguishing feature of the so-called Second Karabakh war fought over the course of 44 days in autumn 2020. Once again, it brought attention to the matter of preservation of religious and cultural artefacts not only during an armed conflict, but also after the cessation of military hostilities. Armenians around the world watched in real time the destruction of their holy sites and cultural and historic monuments as part of a broader campaign of ridding the territories captured by Azerbaijan of its Armenian population, as well any traces of their existence, past or present. Numerous Armenian national and religious sites and monuments have been destroyed or are in danger of destruction not only through physical obliteration, but also through the material damage caused by the alteration of these sites with the aim of “de-Armenising” them. To fit the Azeri narrative, Armenian cultural heritage in Artsakh has been re-attributed to the “Caucasian Albanians” from whom the Azeri people allegedly descend, despite the fact that the Caucasian Albanians were a non-Turkic people who were culturally related to the Armenians. 

During the course of last year’s war, it became evident that the destruction of Armenian cultural heritage bore a systematic and orchestrated character. These events could not have been separated from the larger context of decades-long state-sponsored denial of the history of Armenian existence and Armenian cultural heritage in the territory of Artsakh. Numerous footages demonstrating the intentional destruction of Armenian monuments, symbols and sites of worship by Azeri soldiers were circulated widely during the armed hostilities. Among the most prominent targets were Armenian Christian sites of worship and monuments of national significance. Christian religious sites, viewed as sacred by the local population, have a particular meaning and significance for the Armenians in the context of post-Soviet national reawakening.

The targeting of the Holy Saviour Ghazanchetsos Cathedral in Shushi on 8 October 2020, a major Armenian national and religious landmark and one of the biggest Armenian churches in the world, sent a clear message to the Armenians: nothing was off-limits. The precise shelling of the Cathedral in two rounds within a course of a few hours left no doubt in the eyes of the international community that the attack was deliberate. It was a clear breach of Azerbaijan’s international obligations under the International Covenant on Economic, Social and Cultural Rights and The Convention for the Protection of Cultural Property in the Event of Armed Conflict. Following the capture of Shushi by Azerbaijan, prompt efforts were taken to erase the Cathedral’s Armenian origins through so-called “restoration” works.

The systematic destruction of Armenian cultural and religious sights did not go unnoticed by UNESCO, whose Director General proposed sending an expert mission to Nagorno-Karabakh with the purpose of establishing an “inventory of the most significant cultural assets” as a necessary step in guaranteeing the protection of the region’s heritage. To date, these calls have remained unanswered by Azerbaijan, demonstrating the limitations of international mechanisms tasked with the protection of cultural heritage.

In the absence of a peaceful resolution to the conflict and the persistent anti-Armenian rhetoric at the highest level in Azerbaijan, there is no doubt that the cultural rights of the Armenians of Artsakh cannot be guaranteed. Equally, they cannot be separated from the right of the Armenians to live in their ancestral homeland. Despite the end of last year’s military hostilities, the conflict in Nagorno-Karabakh/Artsakh remains unresolved. Although Azerbaijan claims that there is no longer a “Nagorno-Karabakh” issue, the status of the Armenian population remaining on the territories under the control of the Republic of Artsakh is yet to be determined. The physical safety of the Armenian population and their remaining cultural heritage is only guaranteed by the Russian army deployed along the periphery of the territory of Artsakh not captured by Azerbaijan as part of the tripartite agreement between Russia, Armenia and Azerbaijan concluded on 9 November 2020.

Despite a significant mistrust of the Russians among the Armenians of Artsakh, the latter have come to rely on Russian peacekeeping forces to ensure their right of access for purposes of worship to a number of holy sites close to the line of contact, such as the Amaras Monastery. Moreover, a Russian armed unit guarantees the physical safety of one of the most significant holy sites in the region, the ancient Dadivank monastery complex together with its monastic community. The Russian post stationed by the monastery was the result of Russian post-war  intervention, despite the silence of the tripartite agreement on the issue of the preservation of Armenian cultural heritage in the region. In view of the possibility of Azerbaijani objection to the Russian military presence five years after the deployment of the peacekeepers in accordance with the agreement, this and other religious sites are still in danger.

In fact, the destruction of Armenian religious and national symbols and sites has become another outstanding issue as far as the resolution of the conflict is concerned under the auspices of the OSCE Minsk Group, the main negotiating framework established in the 1990s. Azerbaijan’s open and systematic eradication of Armenian heritage remains an obstacle to achieving a peaceful solution to the conflict, as no peaceful solution is attainable as long as the Armenians of Artsakh are denied their identity and the history of their centuries-long existence in this region.

Legal Fictions and Our Constitutional Republic

At the Law & Liberty site today, I have an essay on Steve Smith’s fine new book, Fictions, Lies, and the Authority of Law. I use the essay to address one of Steve’s central claims–our constitutional order is based on a fictional consent that has served us well over time. Can this fiction continue to bind together our increasingly fractured society? Here’s an excerpt from my essay:

Can these two conditions, “plausibility and payoff,” continue to hold? In a prologue, Smith notes that he largely finished this book in the fall of 2019 and could not consider all that has transpired in our country since then. Nonetheless, he doesn’t seem very hopeful, and it’s easy to see why. The events of the past two years suggest that America is coming apart in ways that make the beneficial fiction he describes increasingly hard to maintain. Increasing numbers of Americans no longer identify instinctively with the “We the People” in whose name the Constitution and laws bind us. Indeed, the National Archives now includes a trigger warning on its website for people accessing the Constitution, alerting readers to the “potentially harmful language” they will encounter in the document. As Smith writes, people who see themselves “as systematically oppressed or discriminated against  . . . have little incentive to overlook the fictional quality of the ‘consent’ on which government’s assertion of authority depends.” And our officials seem increasingly dysfunctional—petty, gridlocked, and feckless, unable to end their squabbling long enough to handle a nationwide public-health emergency or withdraw from a military campaign in an ordered, dignified way.

You can read the whole essay here.

Webinar Next Week: Cultural Property in Law and Diplomacy

Next week, along with the Fletcher Initiative on Religion, Law, and Diplomacy at Tufts, the Centre for Religion and Culture at Oxford, and the Armenian Studies Program at Fresno State, the Center will co-sponsor a webinar on cultural property in law and diplomacy. The event will bring together a cross-disciplinary group of scholar-practitioners to discuss the challenges of and opportunities for preserving the rights of access to places of worship for religious groups in cases of contested spaces and in diverse conditions of active and non-active conflict. Speakers will include Narine Ghazaryan (Nottingham), Evanghelos Kyriakides (Kent), Peter Petkoff (Oxford), and Michalyn Steele (BYU). Center Co-Director Mark Movsesian will moderate, along with Sergio La Porta (Cal State-Fresno) and Elizabeth Prodromou (Tufts).

The webinar will take place on Thursday, October 14 at 12 pm EST. Posts from the participants will appear subsequently here on the Forum. Hope you can join us! For further information and a link to join the event, please see below:

Fulton: A Victory for Religious Freedom?

For interested readers, I have an essay at First Things today on the Supreme Court’s decision last week in the Catholic adoption services case, Fulton v. City of Philadelphia. I argue that the decision represents a victory for religious freedom–though how much of a victory depends on how the Court interprets the case in the future. Here’s an excerpt:

Fulton is surely a victory for religious freedom. In fact, if the Court means what it says, the case is a major victory. True, the chief justice’s opinion avoids a definitive resolution of the conflict between LGBT rights and religious freedom—which probably explains how the chief captured the votes of the Court’s progressives, Breyer, Sotomayor, and Kagan. And true, Smith remains on the books, a result that Justice Alito, joined by Justices Thomas and Gorsuch, lamented in a separate concurrence. 

But if it is true, as Fulton suggests, that even a theoretical possibility of an exception triggers strict scrutiny, Smith does not pose much of a limitation. Moreover, if the Court is serious about strict scrutiny—that the mere possibility of an exception means that the state lacks a compelling interest in applying its rule to any particular litigant—it is hard to envision a religious claimant ever losing one of these cases in future. 

Nonetheless, it would be wise for religiously affiliated adoption agencies and other potential claimants to wait and see what develops before celebrating. The Court’s religion clause jurisprudence is notoriously unpredictable, and the justices may not stick to Fulton’s reasoning in the future. Moreover, the fact-specific nature of the ruling means that the Court can easily distinguish Fulton in subsequent litigation if it wishes to do so. 

You can read the whole essay here.