Subway Ads and Mental Maps

Many thanks to Mark Movsesian and Marc DeGirolami for letting me return with a couple of guest posts.

I’ve been intrigued by some recent posts on this blog and how they confirm my long-held view that the normative decisions we make with respect to the law’s treatment of religion are deeply intermeshed with cognitive choices we make — how we “see” and understand religion.  Religious phenomena don’t fit easily or self-evidently into the mental maps by which we divide the pieces of the secular world.  All we can do is approximate, and those approximations matter.

subway1Let’s begin with Mark’s fascinating and wonderfully observant recent post about an ad for the Marble Collegiate Church that he recently saw in a New York City subway.  The ad itself was unremarkable, touting Marble Collegiate as “Church the way you always hoped it could be.”  (Marble Collegiate itself is more remarkable, founded in 1628 as a Dutch Reformed congregation and serving in the 20th century as Norman Vincent Peale’s pulpit for some 50 years.)  But the ad included a prominent disclaimer form the MTA (the local transit agency) taking up the bottom third of its precious space: “This is a paid advertisement sponsored by Marble Collegiate Church.  The display of this advertisement does not imply MTA’s endorsement of any views expressed.”  What gives? Continue reading

The Polygamy (aka “Religious Cohabitation”) Decision

Just a few words about the decision a few days ago in Brown v. Buhman, in which a federal district court judge in the District of Utah struck down a portion of Utah’s bigamy statute.

The Utah statute provides that:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

At its core, this statute, like all bigamy statutes, criminalizes knowing efforts by a married person to enter into another state-licensed, state-sanctioned, marriage.  Such marriages are both criminally punishable and void.  (This might seem like a paradox, but it’s not.  Many illegal contracts are both punishable and void).  But in the light of Utah’s distinct history with polygamy, both the language of the statute and its interpretation by courts go a step further than most other states:  They also seek to punish persons who “purport to marry” even by entering into purely “private” or religious marriages. without trying to get a license, and without demanding any legal benefits or rights from the state.  On the other hand, the Utah courts have also held that the statute only covers relationships that hold themselves out to be “marriages” of one sort or another.  Thus, despite the “cohabitation” language, the statute does not cover simple adultery, even when the adulterers live together.  Nor does it cover someone like Hugh Hefner, who often lived with several women in one household, but was never married (or held himself out to be married) to more than one at a time.

The district court upheld what I’m calling the core application of the statute.  It really had no choice given Reynolds v. United Statesthe famous 1879 United States Supreme Court decision that denied Mormon polygamists religion-based exemptions from territorial bigamy laws.  But the district court struck down the extended application of the statute.  It held that (1) the state had no legitimate interest trying to regulate purely “religious cohabitation” and (2) that the law unconstitutionally discriminated between such “religious cohabitation” (in which the parties held themselves out to be in some sense “married”) and other extra-marital or multiple-partner arrangements.

I don’t want to discuss the opinion at length here.  I don’t want to discuss whether the district court played fast and loose with the precedents.  Nor do I want to discuss whether there should be a constitutional right to religiously-based polygamy.  

But I do think one point deserves emphasis:  This opinion is yet another instance of a serious and damaging failure, which I’ve discussed in other contexts here, here, and here, to appreciate the distinctively interwoven, intertwined, character of marriage in the United States.  Marriage as we know it carries a complex combination of governmental, religious, cultural, sociological, psychological, and maybe even “natural” meanings.  And those meanings have never been, and probably cannot be, kept hermetically sealed off from each other. Continue reading

A Blegging Blog about Blood in Bologna

This post concerns an old and much-cited legal chestnut that I have come to think might be more profound (and more tied to “law and religion”) than first appears.  It is also a bleg — a request for help from anyone out there with some expertise in medieval law or medieval Latin, or both.

William Blackstone, in his discussion of statutory interpretation in his Commentaries (first published 1765-69), refers to

the Bolognian law, mentioned by Puffendorf [sic], which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” [and] was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

The point here, of course, is that words should not be read literally if that would give them “a very absurd signification.”

Blackstone’s source, Samuel von Pufendorf, discusses this “case” in his “Law of Nature and Nations,” first published in 1672, and Pufendorf in turn cites a 1516 digest of legal arguments by Nicholas Everhard (aka Everardi, Everts, and several other names).   Pufendorf, for example, adds that the defendant “was in no little peril because it was added in the statute that the words should be taken exactly and without any interpretation.”  Everhard leaves out that tidbit, but does spin out the legal argument at greater length, and emphasizes that punishing the healer would be “absurd and inhuman,” not merely “absurd.”

Now, my intuition tells me that there’s more to this odd tale than meets the modern eye.   Continue reading

“Prayer is serious business”

With Thanksgiving weekend coming to an end, it seems like a good time to share a few words about Town of Greece v. Galloway, the legislative prayer case on which the Supreme Court heard oral argument early last month, on November 6.

I have a special personal interest in this case because I was a law clerk to William J. Brennan, Jr. when the Supreme Court decided Marsh v. Chambers, the case that first upheld the practice of legislative prayer on essentially historical grounds, and worked on Justice Brennan’s dissent.  The dissent argued, compellingly I think, that official legislative prayers violated the Establishment Clause despite their long history in both Congress and state legislatures.  But my favorite passage in the dissent, and the one possibly most relevant to the Town of Greece case, is this:

[L]egislative prayer, unlike mottos with fixed wordings, can easily turn narrowly and obviously sectarian.  I agree with the Court that the federal judiciary should not sit as a board of censors on individual prayers, but, to my mind, the better way of avoiding that task is by striking down all official legislative invocations.

More fundamentally, however, any practice of legislative prayer, even if it might look “nonsectarian” to nine Justices of the Supreme Court, will inevitably and continuously involve the State in one or another religious debate.  Prayer is serious business — serious theological business — and it is not a mere “acknowledgment of beliefs widely held among the people of this country” for the State to immerse itself in that business. Continue reading

The Parsonage Exemption and Constitutional Glare

The organizers of this blog were kind enough to ask me to do some guest-blogging here last month.  They’ve now been even kinder in letting me post some more over the next couple of weeks.

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A few days ago, a federal district court judge in Wisconsin struck down the so-called “parsonage exemption,” under which practicing clergy get to exclude many of their housing expenses from taxable income.  Judge Barbara Crabb held that the exemption, included in § 107 of the Internal Revenue Code, violated the Establishment Clause as, among other things, an unjustified special favor to organized religion.  Now, I’m generally a “strict separationist” on Establishment Clause questions.  But this decision is quite wrong.  And it misunderstands an important piece of our church-state dispensation. Continue reading

Prophets in the Public Square – Part III

Final thoughts from an unpublished talk I presented at the 19th Annual Journal of Law and Religion Symposium at Hamline Law School in 2009.

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As I emphasized in Part I and Part II, religious voices in the public square need to speak authentically.  They also need to find a way to speak universally without losing sight of their own necessary particularity.  These are important religious challenges.

But how should political theory look at all this? Many political and legal philosophers, following John Rawls, have argued that religious voices in the public square need to frame their arguments in terms that are intelligible to the larger overlapping consensus of diverse communities and radically different religious convictions that participate in that conversation. Critics have suggested that this requirement of self-censorship is unnecessary, and unfair and untrue to religious faith. I want to go a step further, and argue that it can also be affirmatively bad for public discourse, and in some ways more dangerous to the secular polity.

To make my point, I want to look briefly, not at the classic works in this ongoing debate, but at a more obscure source, Rawls’s own rediscovered religious writings. Continue reading

Prophets in the Public Square – Part II

More from an unpublished talk I presented at the 19th Annual Journal of Law and Religion Symposium at Hamline Law School in 2009.

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In Part I, I talked about the importance of “authenticity” and the risk of succumbing to “cheap prooftexting” when Jews bring their religious values to bear in public debate.  While the general notion of “authenticity” is obviously also relevant to Christian interventions in public debate, it might seem at first glance that Christians need not worry about the more specific challenges facing Jews — especially the need to distinguish between religious law and religious exhortation and also between intra-group and universal norms.  After all, most Christians, unlike Jews, do not treat law, with its rigor and limitations, as central to religious life. Nor do Christians, at first glance, seem to be caught up as Jews are in a tense polarity between particularism and universalism.

But I want to sketch an argument that, to the contrary, there is a lot of resonance between the two cases. Continue reading

Prophets in the Public Square — Part I

I want, in three posts adapted from an unpublished talk I presented at the 19th Annual Journal of Law and Religion Symposium at Hamline Law School in 2009, to add a bit to the possibly already-stale conversation over the role of religious voices in the public square.  If I can add anything, it will be to focus on the distinctive challenges, both internal and external, that confront those religious voices as they try to translate theology into policy.

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Years ago, I attended a panel discussion on Jewish views of the American welfare state. My memory of the event is hazy, but I do recall that several speakers discussed strands in Jewish law that might support income redistribution, national healthcare reform, or the like. Finally, the last panelist got up and argued that Judaism actually had little to say about the American welfare state, and that most of the textual sources from which the other speakers drew conclusions about contested matters of American policy were, as a matter of Jewish law, only relevant to the internal life of Jewish communities or to a Jewish polity.

What should we make of this critique?  This isn’t the place to review the legal analysis. So I will, on the one hand, just assume, for the sake of argument, that it was correct. But there’s another hand: Though law is at the heart of Judaism, not all Jewish religious discourse is legal. There are other registers through which Jewish tradition speaks, including Biblical narrative and poetry, rabbinic homiletics, systematic moral philosophy, mysticism, and more. And even the law has a vision – attitudes and aspirations and ideals – beyond its strict four corners.

There is also a third hand, however. For if religious arguments do get made in different registers, it is important to get the discourse right. Continue reading

“The Son You Love”

Yesterday, during Shabbat services, Jews read Vayera (Genesis 18:1 – 22:24), the portion of the Torah (the first five books of the Hebrew Bible) whose narrative includes the destruction of Sodom and Gomorrah, Abraham’s expulsion of Hagar and Ishamel, and then as its climax, the Akedah — the binding of Isaac.

During yesterday’s service at the Havurah in my synagogue, I gave a d’var Torah (homily) on Vayera.  Here’s a lightly edited version:

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The typical question we’re moved to ask about the Akedah is whether, in Abraham’s willingness to sacrifice his son Isaac at God’s command, he passed God’s test of faith, or spectacularly failed it. That is a big question, but it is too big for me this morning. It might also not be the right question. Because, actually, Abraham failed his test long before the Akedah, long before God called him to sacrifice Isaac on Mount Moriah. Continue reading

Religious Division and Identity – Richard III and the Rest of Us – Part IV

I’ve been writing about theological and historical perspectives on religious identity, continuity, and division.  See here and here and here.  But what about the law? The problem of competing claims to what I’ve called the “religious DNA” of a faith tradition typically comes up during battles over church property arising out of divisions and schisms of one sort or another, within congregations or between congregations and larger church bodies.  (I’m not going to talk here about the “personnel” issues that have given risen to the “ministerial exception” doctrine

These sorts of conflicts arise frequently in a country such as ours where religious life and ecclesiastical identities have often been in flux, and have always raised fascinating and difficult questions.  An important recent example has been the effort to adjudicate the property of several Episcopal parish churches in Virginia whose congregations voted to break away from the Diocese of Virginia, and affiliate with the new “Anglican Church in North America” in reaction to the national Episcopal Church’s policies regarding homosexuality.  Nobody, of course, disputes the right of a group of persons to worship as they please and affiliate with whatever religious group they please.  The real question, put bluntly, is who gets to keep the church building, the bank accounts, the chalices and crosses and books and all the other material stuff of religious life.  This past April, the Virginia Supreme Court ruled largely in favor of the Diocese and the national Episcopal Church and against the breakaway congregations.

The issues raised by these and similar cases are much too involved and messy for one blog post.  But here are a few thoughts, connecting the legal questions to the other perspectives I’ve written about in this little series of posts.

Continue reading

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