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 Marc O. DeGirolami

My Remarks on Prof. Robert George’s “Making Men Moral” at 30 Years

I was delighted and honored to participate in a two-day conference marking the 30th anniversary of Professor Robert George’s deeply important book, Making Men Moral: Civil Liberties and Public Morality, organized by the Project on Constitutional Originalism and the Catholic Intellectual Tradition at The Catholic University of America, Columbus School of Law, Pepperdine University’s School of Public Policy, and the American Enterprise Institute.

I was joined by my friends, Professors Joel Alicea and Steven Smith, with Judge Thomas Griffith moderating, on the final panel concerning constitutional theory. The recording, which I’ve posted below, begins at 6:49:29 and my own presentation starts at 7:06:35. But I highly recommend all of the panel presentations and discussions.

Posted on by Mark Movsesian · 1 Comment

The Best Thanksgiving Film

Happy Thanksgiving, everybody! It’s not the usual Forum fare, but over at First Things, I’ve written a little essay on one of my favorite films, Woody Allen’s “Broadway Danny Rose”:

Thanksgiving doesn’t inspire many movies. Yet it has a central role in one of the best movies ever made, about Thanksgiving or any other holiday: Woody Allen’s Broadway Danny Rose (1984). I make a point of watching it every November—and so should you. 

True, the film trades in broad, ethnic stereotypes: It features a fast-talking, nebbishy Jewish talent agent and a crass Italian mob widow with big sunglasses. Not everyone will appreciate its Runyonesque sentimentality about New York in the early ’80s. But Broadway Danny Rose manages to be both funny and sweet. Americans nowadays don’t think of Thanksgiving as a religious holiday, but Allen foregrounds religious themes, including the need to show gratitude to God by reaching out to others. For a film by a self-consciously Jewish atheist who famously rejects religion, its meditations on God, humility, guilt, and forgiveness make Broadway Danny Rose one of the most Christian films I know. 

You can read the whole essay here.

Posted on by Mark Movsesian

Movsesian on RFRA and the Rise of the Nones

The Emory Center for the Study of Law and Religion has published my essay, “RFRA and the New Thoreaus,” which I presented in last week’s online symposium. Here’s an excerpt:

In short, the question whether RFRA’s definition of “religion” includes idiosyncratic, personal beliefs is not entirely clear. To be fair, when Congress enacted RFRA in 1993, one could dismiss the question as peripheral. As I have explained, at the time, more than 90% of Americans claimed a religious affiliation, and the question of idiosyncratic convictions did not have great legal significance. The Rise of the Nones has changed things. As Nones become more established in our religious culture, one can imagine many claims for exemptions based on idiosyncratic spiritual commitments: a vegetarian diet in prison, for example, or the right to wear certain clothing or insignia in the military–or, as has already occurred, an exemption from public health requirements, like vaccination and mask mandates. 

The rise of the Nones thus makes it likely that courts will have to grapple seriously with the definition of religion for purposes of RFRA–as well as the Free Exercise Clause and other laws. As I have argued elsewhere, the best approach would be a flexible one. At its core, religion means a collective phenomenon, a community of believers that exists through time, not a solitary spiritual quest. In common understanding, religion has always suggested a group of people linked together in worship. As sociologist Christian Smith writes, “religions are almost invariably social activities—communities of memory engaged in carrying on particular traditions.” Without a communal structure to give them meaning, religious practices such as prayer, fasting, and so on are incoherent, “simply the strange doings of odd people.” 

You can read the whole essay here.

Posted on by Mark Movsesian

On Human Rights Hypocrisies

In a new podcast from Parallax Views, I discuss the situation in Karabakh right now. Not for the first time, great power rivalries and human rights hypocrisy have led to the destruction of a vulnerable religious minority–this time, Armenian Christians. The host, J.G. Michaels, and I spend a lot of time on Western hypocrisy, in particular, and how Mideast Christians fail to gain much traction in Western politics. Mideast Christians are too Mideast for the Right and too Christian for the Left. Listen in: https://www.podbean.com/ew/pb-vdntv-14ba395

Posted on by Mark Movsesian

Ethnic Cleansing and the Rule of Law

In COMPACT Magazine today, I write about the ethnic cleansing of Armenian Christians now underway in Karabakh. Largely, what’s happening is the result of great powers looking the other way. Here’s an excerpt:

In fact, the ethnic cleansing of Karabakh probably serves many interests. For the Russians, it’s a way of pressuring Armenia to overthrow its pro-Western government. For the United States and Europe, it ends an embarrassing moral quandary and allows them to continue to curry favor with Azerbaijan and Turkey. Just as Moscow tries to pull Ankara to its side, Washington wants very much to keep Ankara in the NATO tent.

And for Turkey and Azerbaijan, it’s another victory in a plan to eliminate the Armenian Christian presence in the South Caucasus and create a pan-Turkic empire stretching from Istanbul to Central Asia, a dream that goes back to the time of the First Armenian Genocide a century ago, during which the Ottoman Empire killed up to 1.5 million Armenians in mass deportations. In fact, Baku already claims Armenia proper as “Western Azerbaijan”—a country that has never existed—and both it and Turkey insist on a sovereign corridor across Armenia to link Azerbaijan and Nakhichevan. Erdogan promises to “fulfill the mission of our grandfathers in the Caucasus.” Will the United States stop him? Will Russia?

Posted on by Mark Movsesian

The First Amendment and the Supreme Court

I was delighted to appear this week as a guest on Pastor Haig Kherlopian’s podcast to discuss the history of the First Amendment, recent Supreme Court decisions on church and state, and other matters. Listen in!

Posted on by Mark Movsesian

On Why the West Should Not Abandon Armenia

In First Things today, I have an essay on the continuing crisis in Karabakh, where 120,000 Armenians face a real threat of ethnic cleansing by the Aliyev regime in Baku. I argue that Baku has so far played a double game, cozying up to Moscow while avoiding sanctions by hinting at potential benefits to the West. It’s time for that to stop. The West needs to do more to encourage Baku to negotiate about resolving the Karabakh crisis in good faith. Here’s a sample:

But without sanctions or other serious action, Aliyev will continue to treat Armenian concessions as invitations to engage in further aggression. For example, in negotiations in Brussels last month, both Armenia and Azerbaijan agreed to recognize each other’s territorial integrity and discussed reopening railway connections based on mutual reciprocity. Pashinyan subsequently confirmed that Armenia was ready to recognize Azeri sovereignty over Karabakh (provided arrangements could be made to guarantee Armenians’ security there)—a painful public concession, apparently made at the urging of the U.S., which caused anger in Karabakh itself.

How did Aliyev respond? After Pashinyan’s statement, Aliyev again threatened Karabakh Armenians with ethnic cleansing and, for good measure, threatened Armenia as well. Armenia would have to agree to Azerbaijan’s demands with respect to border demarcation, he announced, or face further aggression. “The border will pass where we say,” Aliyev crowed. “They know that we can do it. No one will help them.” A bewildered Pashinyan asked whether Aliyev was already abandoning the position he had taken in Brussels and demanded clarification. The U.S. has not yet responded.

Since Russia invaded Ukraine, American and European leaders have spoken of the need to defend democracy and self-determination against authoritarian aggression. That is precisely what is needed in the South Caucasus now. At the very least, Western sanctions against the Aliyev regime should be on the table. Even in realist terms, it would not be in the West’s interest to abandon Armenia, which is looking to reorient itself and which can serve, in time, as an important bridge between the West, the South Caucasus, and beyond. Unless the West creates greater incentives for Azerbaijan to negotiate in good faith, however, a humanitarian crisis looks about to unfold.

Posted on by Mark Movsesian

Movsesian on Defining Religion

In First Things this month, I have an essay arguing that religion, for legal purposes, presumptively means a collective rather than a purely personal pursuit. It’s a question that already has perplexed courts in the context of COVID-19, and is likely to become more pressing with the rise of the Nones.

Here’s an excerpt:

It’s time for the Court to establish that religion, at its core, denotes communal beliefs and practices rather than idiosyncratic personal commitments. A communal definition makes sense for several reasons. First, the existence of a community captures something important about the social reality of religion. In lived experience, religion suggests a group of people linked with one another, through time, in worship. As sociologist Christian Smith writes, “religions are almost invariably social activities—communities of memory engaged in carrying on particular traditions.” Without a communal structure to give them meaning, religious practices such as prayer, fasting, and so on are incoherent, “simply the strange doings of odd people.”

Second, a focus on community accords with an important goal of religious freedom: the promotion of private associations that encourage cooperative projects and check state power. As Tocqueville explained, the despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to others, so that it can divide and dominate them all. By encouraging people to identify with and look out for one another, private associations militate against self-centeredness and social isolation and help keep the state in check. Religious groups perform this function especially well. No associations have been better, historically, at promoting cooperative social projects and defying state oppression—as dictators down the centuries have learned.

Third, the existence of a religious community reduces the possibility of fraud. Everyone agrees that courts need not honor a religious claim that a litigant does not genuinely hold or raises merely as a pretext. But sincerity, which depends on a claimant’s subjective state of mind, is notoriously difficult for courts to evaluate. The existence of a religious community to which the claimant belongs can provide objective evidence of the claimant’s good faith. A continuous tradition of teaching and worship, and an organized body that enforces discipline, can go a long way toward demonstrating the claimant’s genuineness about his religious convictions.

Fourth, the existence of a community helps ensure that religious commitments are not frivolous and fleeting, but serious and lasting. It is one thing for the state to accommodate a citizen’s profoundly held beliefs. To do so honors the citizen’s dignity and accords him respect. It is another thing to defer to commitments that may be temporary and superficial. Not all idiosyncratic commitments fit that description, of course, and beliefs can be religious even if novel. But the existence of an established religious community can screen out passing whims that the state need not honor.

Finally, making the definition of religion turn at least in part on the existence of a religious community reduces the potential for administrative disorder. Long ago, the Supreme Court warned that if personal spiritual convictions were sufficient to override legal obligations, “every citizen [would] become a law unto himself.” One should not overstate this concern, but the rise of the Nones makes it important today. Requiring a claimant to show that his or her objections are not merely personal but derive from the teachings of an organized body of believers can reduce the potential for conflict with state laws—especially in a society in which very large numbers claim to follow their own spiritual paths.

You can find the rest of the First Things essay here. A much longer version of the essay will appear in a forthcoming symposium issue of the Loyola University Chicago Law Journal.

Posted on by Mark Movsesian · 1 Comment

Tocqueville Was Right

At Law & Liberty today, I have an essay on that recent Wall Street Journal poll on American values. The poll suggests that Americans are checking out in large numbers. Compared to 25 years ago, many fewer of us today claim that “patriotism,” “community involvement,” even “tolerance” are very important to us.

There are some methodological questions about the poll–including a very low response rate. But the poll tacks with oft-observed trends in American life, especially the decline of civic associations. In my essay, I argue that all this shows that Tocqueville was right in predicting what would happen if America ever lost its mediating institutions:

The shift in values that the Journal survey reflects will not surprise anyone who has read Tocqueville. In Democracy in America, he described the propensity democratic societies have to “individualism,” which he defined as the tendency to detach oneself from the affairs of the wider society. Unlike aristocracies, he argued, which have status hierarchies that naturally encourage deference, democracies accustom each person to think of himself as the equal of everyone else—not only in terms of political citizenship, but moral judgment as well. Because everyone is equal, there is no reason to defer to received wisdom or traditional communal values. In deciding how to live, each person believes he must rely on his own judgment and look out for his own interests. Over time, Tocqueville wrote, this “sentiment disposes each citizen to isolate himself from the mass of those like him and to withdraw to one side with his family and his friends, so that after having thus created a little society for his own use, he willingly abandons society at large to itself.”

Tocqueville believed that the tendency to individualism created the potential for two sorts of tyranny. The first was state oppression. The despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to the concerns of others, so that the state can easily divide and dominate them all. The second was the tyranny of public opinion. Socially isolated individuals are no match for the pressure of majority viewpoints, which, like state oppression, can squelch free thought. Indeed, he observed that egalitarian and individualistic America was, paradoxically, rather conformist: “I do not know of any country, where, in general, less independence of mind and genuine freedom of discussion reign than in America.”

Tocqueville famously argued that the United States overcame the dangers of destructive individualism through voluntary associations, including churches, which encouraged Americans to look beyond themselves and cooperate in common enterprises. They taught habits of fellowship and reciprocity. Importantly, they worked to check the tyranny of the majority by giving people a sense of shared identity beyond citizenship. Collections of like-minded people stand a much better chance than isolated individuals of resisting both state oppression and the pressure of public opinion.

Last week’s poll suggests what happens when mediating institutions weaken and disappear. As Tocqueville predicted, people lose interest in the wider community and focus more and more on their own projects. They “withdraw to one side” and “willingly abandon society at large to itself.” This can help explain why Americans decreasingly value tolerance and increasingly value money. Working in a joint enterprise teaches people to overlook personal differences to achieve a common goal; it trains us to forbear and forgive. Tolerance is unnecessary in a society in which everyone bowls alone. And money allows one to fulfill one’s desires without relying on the cooperation and approval of others.

You can read the whole essay here.