On the Religious Liberty Order

At the First Things site, I have a post on last week’s executive order on religious liberty. I argue that the order doesn’t do very much about religious accommodation, but that doing little may be a strategic choice by the Trump administration. I also argue that weakening the Johnson Amendment, which prohibits tax exempt religious organizations from electioneering, would be a bad thing, and inconsistent with American tradition.

Here’s a sample:

[A]voiding partisan political contests is a longstanding tradition for American churches, and a very beneficial one. In the nineteenth century, Tocqueville observed that Christianity had a powerful influence in American politics; religion was, he famously said, “the first” of our “political institutions.” But Christianity’s influence on politics was an indirect one, and powerful precisely because it was indirect. Churches shaped Americans’ attitudes and morals, and Americans’ attitudes and morals shaped our politics. But churches studiously avoided party contests as such, and clergy “maintained a sort of professional pride in remaining outside of” them. As a result, Tocqueville observed, churches were never mixed up in the public mind with the vicissitudes of electoral campaigns, and maintained people’s confidence and respect.

This practice has served us very well. This is not to say that churches should avoid commenting on public questions, only that churches should refrain from endorsing or opposing particular candidates and parties, and avoid electioneering as such. In fact, I’ve never known a member of the clergy, liberal or conservative, who said he wanted to endorse or oppose a particular candidate from the pulpit. I suspect that, deep down, they all understood that mixing to that extent in partisan contests would interfere with their mission of preaching the Gospel and administering the sacraments. If last week’s order signals a change in our longstanding American tradition, it’s not a change conservatives should celebrate.

You can read the post here.

Fake Law

Though that could well describe President Trump’s “Executive Order on Religious Liberty” issued yesterday, I have something different in mind in this article. A bit:

Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law’s legitimacy and the warping of judges’ self-understanding of their constitutional role.

The Boy Who Cried Wolf Hypothesis (Further Thoughts in Response to Rob)

A couple of further thought in response to Rob Vischer, with whom I am greatly enjoying an exchange concerning perceptions of discrimination against Christians.

First, Rob writes that Christians are “lead[ing] the charge” against Muslims in some communities, citing conservative Christian support for so-called anti-Sharia laws and for the denial of zoning permits for the construction of mosques. I wonder if this is true. No doubt some conservative Christians do support these policies. But some say that those leading the charge today against immigrants, and those most hostile toward Muslims (and African Americans, and others, too), from the right tend to be non-Christians, not Christians. Rob suggests that the failure of some conservative Christians to advocate against, e.g., anti-Sharia laws might “smooth the way for the demonization of conservative Christians.” Perhaps that is true, but the point assumes that politics rewards a kind of principled, rational consistency (I have disagreed with Tom Berg in a similar way before, regarding his view that politics rewards reciprocality and consistency). Conservative Christians, the argument seems to say, are likelier to be rewarded with non-demonization if they support the non-demonization of another group. But it seems to me that the real reasons for Christian demonization are located in very different places than these, and that the question of whether Christians will or will not be demonized as a political and/or cultural matter depends on much more powerful political and cultural forces. To name two: the cultural desires and aspirations of the secular left and of religiously disengaged conservatism.

Second, Rob says that Christians should be “specific and restrained” in pointing out discrimination against Christians. The reason is that “our too-easy embrace of that narrative [of discrimination and/or persecution]…can limit its power when we need it most.” I don’t think I agree with this point, but whether I could agree with it or not would depend upon facts I don’t presently possess. The point being pressed by Rob could be called “the boy who cried wolf” hypothesis–the more frequently Christians point out episodes of discrimination and/or persecution against themselves, the more likely they are to be labeled “whiners” or some similarly dismissive appellation by their cultural and political opponents, and the less likely they will be to succeed when they invoke the charge of discrimination and/or persecution when it “really” happens. But why should one think that invoking discrimination is like this? To the contrary, why should one not think that the more one invokes the discrimination/persecution charge, the more powerful it becomes. And the less frequently one invokes it, the less plausible it seems (as, indeed, it seemed very implausible to the Washington State Supreme Court in the example Rob cites, notwithstanding what are to me the entirely persuasive arguments that Rob himself makes). You could call it the muscle hypothesis–the more you exercise, the stronger you get. There are many other examples of the power that the charge of discrimination can generate on behalf of a cause as a legal and political matter. Indeed, constitutional law (among other areas) is absolutely stuffed to the gills with them. If the objective is legal or political success, I’m not sure that I would accept the boy who cried wolf hypothesis as just self-evidently true, at least not without further evidence that this is, in fact, the likely outcome of “too many” claims of discrimination/persecution. In this instance, less may not be more. More may be more.

Dean Rob Vischer and I on Discrimination Against Christians

Dean Rob Vischer (U. St. Thomas) has a comment over at the Mirror of Justice site concerning discrimination against Christians, in which he concludes by arguing that:

religious liberty is only as strong as the degree to which it protects the most vulnerable among us.  If millions of Americans who (should) care deeply about religious liberty fundamentally misperceive where the most potent threats are aimed, religious liberty for all is on shaky ground.  This is an argument that some conservative Christians are championing — Robby George and Russell Moore are two leading examples — but it faces an uphill climb, in part because Christians have been hearing about our own persecution for a very long time.

Christian leaders and scholars need to cultivate a new commitment to discernment: distinguishing between the discomfort of holding increasingly unpopular beliefs and the real persecution that — thus far, at least — been far more prevalent in our lyrics than in our legal system.

I responded to Rob as follows:

I see things a little differently than Rob does in his latest post concerning discrimination against Christians. I hasten to add that I am neither an Evangelical conservative Christian nor have I ever listened to Christian rock. I also have not read the original piece to which Rob links. The disagreements run to a number of issues, and as to some I am not sure they are disagreements at all. But for purposes of this post, let me point out three:

Objection from demandingness: Rob says that “[i]f millions of Americans who (should) care deeply about religious liberty fundamentally misperceive where the most potent threats are aimed, religious liberty for all is on shaky ground.” I am not sure this argument is correct. A person could perceive certain threats to religious liberty and not others, and still make contributions to the protection of religious liberty. He or she could defend certain principles in certain contexts and not in others, and still help toward the defense of those principles. That person need not have to perceive all threats, as well as the relative strength of those threats, and make all possible defenses. But Rob seems to say that if one does not do this, then one is contributing to the weakening of religious liberty. That imposes a very high standard on people to perceive accurately the quality of all threats and defend religious liberty accordingly. Otherwise they are weakening religious freedom.

Global context: Rob may not have been saying this, but I also do not agree that Americans should recognize that discrimination and persecution of Christians is, at least as a global phenomenon, of lesser importance or significance or urgency than discrimination against other religious groups. In fact, if anything it is secular Americans, not Evangelical Christians, who fundamentally misperceive where the most potent threats to religious freedom are aimed. Those threats are aimed at Christians in the Mideast. The American political regime that preceded this one consistently, almost willfully, misperceived that threat to religious freedom. Many American Christians seem not to perceive the atrocities that have been and are occurring to their co-religionists, and that my colleague, Mark Movsesian (among others), has documented. But I am not sure that I blame them for this. Here again, I revert to the first point of disagreement. It will be very difficult to protect religious freedom if every person has to accurately assess the relative strength of various threats to religious freedom and protect them in corresponding proportion. Whose metrics will be used? What happens when we disagree about the relative power of the threats? Is it not better to allow for different constituencies to emphasize and advocate for different problem issues? Is it not a more realistic approach that might result in the collective strengthening of religious freedom?

Just Wait Until It’s Worse!: Finally, I disagree with an implication of Rob’s post: that until Christians in this country have it as bad as other constituencies, they need to recognize their own relatively insignificant lot and wait for things to get worse before they can really start to complain. Rob almost certainly did not mean to say this, but the argument he makes reminds me very much of the ‘now that’s real persecution‘ style of argument. It is of course true that people ought to be concerned with severe violations of religious freedom. But I do not think it is true that people ought to measure or evaluate the state of their own religious freedom only by comparison with its worst violations. There is inevitably a kind of recursion to the lowest common denominator in these kinds of arguments, a suggestion that until American Christians endure the same sorts of threats as others, they are just “whining.” I must say that this argument (as I’ve written before) has always been mysterious and borderline perverse to me. Assuming the threats to religious liberty (as in point 1) to be of differential urgency, why is it necessary for those threats to become much, much worse before we will acknowledge their legitimacy?

Rob has responded to me, in part agreeing, in part disagreeing. I’ll try to put up another post on two specific questions raised in his responsive post: (1) Does it in fact follow that advocating for religious freedom in one context but not in another makes it more likely that religious freedom in the first context is threatened?; and (2) Is the “boy who cried wolf” phenomenon described by Rob in fact an accurate description of the way in which claims for religious freedom succeed or fail. That is, is Rob right that Christians ought to save their complaints for really bad sorts of discrimination, lest they be ignored when those really bad sorts of discrimination arise? Suffice it to say for now that I am skeptical on both counts, but particularly the second.

Blasphemy in Denmark

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.

Danish Blasphemy Prosecution for Koran Burning

Here’s a fascinating story in the New York Times about a prosecution in Denmark for blasphemy, against a man who burned a Koran and posted his burning to Facebook. It seems that blasphemy laws remain on the Danish books, notwithstanding that the country is, by all accounts, very secular. Though the decision to charge was made at the local level, it has been ratified by Denmark’s attorney general.

No one has been convicted under the Danish blasphemy laws since 1946, when the law was used to prosecute a man who dressed up as a priest and mock “baptized” a doll.

A few thoughts:

1. Apparently the defendant had been charged initially with a “hate speech” crime, but the charge was subsequently changed to blasphemy. Perhaps hate speech is a lesser included offense? The linear continuity of hate speech with blasphemy is itself worthy of a separate article. Indeed, as I have argued at length, but as Tocqueville said more pithily, freedom never governs without faith. The only real question for a society that enjoys some speech protections is for what ends speech will be restricted, not whether it will restrict it at all. Of course, it will. And it seems altogether natural that the proscription on hate speech would in the end find its fullest and most complete expression in the zealotry (I use the term neutrally) of an anti-blasphemy law. (Parenthetically, the man also stated that he hated children. That seems rather sweeping, and perhaps worthy of its own hate speech prosecution. Perhaps if he had said, “I hate some children,” one might be more sympathetic.)

2. Denmark of course has a recent history of conflict with Islam, as in the infamous Mohammed cartoon incident about 10 years ago that resulted in no charges, and, as the story says, “deadly riots, attacks on Danish embassies in the Middle East and a trade boycott against Denmark.” Perhaps, for these and other reasons, Denmark has come to a different conclusion today. Still, it’s clear from the story that the burning of a Bible is legal, since in 1997 a Danish artist burned a copy of the Bible on television and nobody batted an eye. Perhaps what Denmark really needs is to refine its blasphemy laws–to give more detailed guidance about which religious texts may be defiled with impunity and which must be let alone. One thing that Denmark should not do: abandon blasphemy laws. It will only send such laws underground, and similar policies will be enforced through other means without the honesty of calling them what they are (vide, e.g., hate speech).

3.  The defendant’s lawyer seems to be making the utterly bizarre claim that the man acted in “self-defense” in burning the Koran, because the Koran contains language about how Mohammed’s followers “must kill the infidel.” I don’t know the Danish law of self-defense, but this strikes me as a highly unusual principle of proportionality. But I suppose we need to know about the physical assaults committed by the Koran on this poor man in order properly to judge the self-defense claim.

4. Don’t miss the wonderful comments of Professor Per Mouritsen, who with one side of his mouth tells us that “blasphemy law is a thing of the past” and with the other tells the Times that in Denmark, “the very idea that religion is taken seriously is the antithesis of being a good citizen.” Perhaps Denmark should adopt laws authorizing the state-enforced (but nondiscriminatory, of course) burning of all holy books. It could be done on a state holiday. Call it “Conflagration Sunday.”

My Take on Gorsuch: A Solid Conservative

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.


It’s Not a Muslim Ban

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.


On the Virginia Statute for Religious Freedom

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.

Luther’s Endurance

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.

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