The Australia School and Politico-Theological Inquiry: Joel Harrison Responds

[In response to some thoughts I had posted about interesting developments in law and religion in Australia, Professor Joel Harrison had these illuminating observations, which he has given me permission to post. MOD]

In his blog post, Professor DeGirolami raises a possible emerging ‘Australian School’ – Australian-based scholars who are interested in Christian theological concerns and justifying religious freedom in light of this. Professor DeGirolami’s post spurred a few initial thoughts in response; I’m grateful he invited me to share them here.

First, although developing a theological jurisprudence is certainly not something unique to scholars in one place, is there something about Australia that may allow this to grow? One possible angle for reflection is on a ‘trans-Atlantic’ difference, and its continuing relevance to Australia. 

The trans-Atlantic difference puts me in mind of the theologians Stanley Hauerwas and John Milbank. Hauerwas the American is anti-Constantinian and sees the violence of the State as the primary thing to resist. Separation is necessary to maintain a prophetic difference – or even just survival of the Church as the Church. Although much indebted to Hauerwas, Milbank the Brit understands Christendom and Christianity as coterminous – Christianity means (complexly) instantiating a political-spiritual project. More broadly, and as generalisation, the boundaries of church and State discourse or what is a matter for theology and what is a matter for law are more blurred on one side of the Atlantic.       

Of course, Australia is not either country. It is a former colony and still part of the Commonwealth, but it also has a strong United States-flavour. Constitutionally it is sometimes described as having a ‘Washminster’ system, with its blending of federalism and responsible government. Culturally and politically, it can swing between looking to one country or the other.  

That said, I wonder whether it is still possible to have more of a ‘British’ sensibility in Australia and talk about cooperative arrangements between church and State, or even develop public debate in theological terms. We can add to this an ongoing relationship to First Peoples, who are partly recognised at State and federal level as maintaining a spiritual or metaphysical connection with the land, as judges of the High Court of Australia recently stated. Although Australia was not permitted to have an established church, this requirement was not opposed to a religiously infused culture and politics. That is not entirely dissimilar from the United States, but Australia perhaps historically went further – maintaining something of that British inheritance in a colonial context. To this day, for example, despite some voices in Australia saying otherwise, it is very difficult to claim a ‘Rawlsian consensus’ of public reason or even that this is something of significant debate.  

Second, this growth in theological concern takes place against an emerging culture war dynamic. Recent years in Australia have seen a remarkable shift. Matters that were previously uncontroversial – like a Catholic, Jewish, or Muslim school’s liberty to hire only members of the religious tradition – are now challenged. It is not difficult to find outright hostility to religious groups or at least non-comprehension. (In one example, an Australian rights group argued the State needed to protect nuns from the Catholic Church, which was infringing their right to private and family life.) This takes place against the backdrop of numerous parliamentary inquiries into religious liberty. Different lobby groups on both sides have sprung-up. With each new inquiry they have escalated their rhetoric, stating the opposing side poses an existential threat that demands immediate action (and presumably more funding and support). In this context, the turn to theological frames (often a version of postliberalism) can reflect an interest in finding resources beyond the culture war. 

It serves a critical function and a productive function. 

Critically, the turn to theology helps to unmask any continuing claims to neutrality. Most notably in the context of religious liberty debates, it helps us to understand how the appeal to autonomy as promoted within liberal frames is not divorced from a theological view – what it means to be free and how this understanding came to be, what the role of civil authority is in relation to this. A theological turn offers insight into our current context: different groups engaging in an agonistic discourse of incommensurable claims to liberty. 

Productively then, the turn to theology looks for an alternative. Thus, we see language of the common good, duty, virtue, solidarity, peace, and charity developed in aid of asking what the shape of a complex, good society should be. 

This raises a final important point that I think should shape any apparent ‘school’ interested in theological jurisprudence. Often religious liberty claims are framed as simply protecting a particular community’s own backyard: my liberty, my autonomy, my freedom from x. However, this turn to theology aims at something more – contemplating the future of our shared life. This is not a question simply for Australian-based scholars, of course.  But I’m certainly glad we splendidly named ‘young upstarts’ can make a contribution (and await criticism).

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.

* * *

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.

* * *

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.

Drakeman, “An Establishment Clause Miracle Story”

Don Drakeman, Distinguished Research Professor at Notre Dame and a member of our Board of Advisors here at the Center for Law and Religion, wrote us recently to pass along this wonderful story about an obscure Christmas carol and our current, perhaps even more obscure, Establishment Clause jurisprudence. We take great pleasure in posting Don’s essay below, and in wishing all our readers a very Merry Christmas, a peaceful holiday season, and a Happy New Year!

* * *

The holidays are a time for inspiring stories, and where better for Law and Religion Forum readers to turn than the Establishment Clause?

            During some family caroling, my daughter Cindy and her husband Richard introduced me to Franz Biebl’s Ave Maria, a breathtakingly beautiful choral work.  This isn’t the famous version by Schubert you hear this time of year.  It’s the one by an obscure 20th century German composer, who spent most of WWII as a POW in Michigan.  The composition is completely different from the Schubert piece, and you’ll only recognize it if you get your music via NPR.

            Herr Biebl’s Ave Maria has become our inspirational story thanks to the 9th Circuit’s 2009 decision in Nurre v. Whitehead.  The seniors in the Jackson High School band were asked to choose what they wanted to play at graduation, and they picked an instrumental version of Biebl’s piece because they thought it would “showcase their talent.”  But the Biebl was nixed by the school administrators on the grounds that “the title and meaning…had religious connotations and would be easily identified as such by attendees.”  The 9th circuit backed them up, saying that the school’s action was an appropriate way to avoid an Establishment Clause problem. 

As far as I can see, the court’s decision required a series of miracles, each involving a degree of faith in the education of America’s youth that, as the KJV might say, “passeth all understanding.”

            The First Miracle:   That anyone was listening.  As a veteran high school band member, I can testify that the one thing the senior class is not doing when the band is playing is paying attention to the music.  The chance that any of them would think, “Wow, what a great piece!  I’ll check the program to see what it’s called” rounds to zero.  But, in this season of miracles, let’s say they did, and learned that it was named Ave Maria.

            The Second Miracle:  That the seniors had any idea what “Ave Maria” means.  I would like to share the judges’ faith that the seniors were well versed in Latin.  Yet, even if they were, Biebl’s effect would more likely be something like this:

            Football Captain:  Are you waving at the band?

Head Cheerleader:  Yes, they are playing that for me.  It’s called, “Hey, Mary.”  Didn’t you pay attention in AP Latin?

            Football Captain:  You have to stop skipping Latin Club meetings.  The Romans didn’t say “Hey,” they said, “Hail.”   This song is in honor of my “Hail Mary” touchdown pass in the championships.

High School football may inspire religious-like devotion, but at least so far, not enough to violate the Establishment Clause.

            The Third Miracle:  That there could possibly be a “primary effect” of advancing religion under the 9th Circuit’s use of the Lemon Test.  In other words, someone had to pay attention to the band, consult the program to learn the title, understand its meaning and religious significance, and then have a sufficiently religious experience that the instrumental rendition of the piece during graduation had a primary effect of advancing religion.  But, if you think about it, we don’t see people falling to their knees in prayer when they hear Josh Groban’s Ave Maria at the mall, and his version actually has words.  Besides, the students most likely to manifest this third miracle involving a traditional Catholic prayer are the Catholic ones, and they were more likely to be graduating from the large Catholic high school just five minutes away.

            Justice Alito called this decision “troubling” in his cert. denial dissent, but I prefer to see it as an inspiring story of faith in our educational system, where classically educated seniors listen to the wind ensemble with rapt attention, and find their religious beliefs profoundly deepened by the simple trigger words, Ave Maria.

            On that inspirational note, if you are seeking to brighten your Christmas season, look no further than Chanticleer’s rendition of Biebl’s Ave Maria on YouTube.  We have it on good authority that it will be a religious experience.


Don would like to thank Cindy Drakeman and Richard Wanerman, who not only introduced him to Biebl, but who also appear on this year’s Grammy-nominated recording of the world premier of Kastalsky’s Requiem.  Since the Requiem includes the hymn Rock of Ages, he hopes the Grammys do not get any federal funding because the awards are being given in the 9th Circuit.

“Law, Religion, and Coronavirus in the United States”: Zachary B. Pohlman

On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Zachary B. Pohlman, Editor-in-Chief of the Notre Dame Law Review, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’sInternational Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.

“Churches” in a Time of Coronavirus

By Zachary B. Pohlman

Regular in-person gatherings at churches, synagogues, mosques, and other places of worship came to a grinding halt in mid-March.  Six months later, religious attendees are returning to the pews—but in significantly fewer numbers.  Whether churchgoers ultimately return to their pre-pandemic levels of in-person worship remains to be seen.  Regardless of whether they do, the coronavirus-induced, steep decline in church attendance—even if only for the short term—could have lasting effects for how we conceive of “churches” from both external and internal perspectives.  That is, how we understand churches as both a legal and religious matter could be shaped by the unique challenges presented by the pandemic.  (For purposes of this blog post, “churches” refers to houses of worship of all types, including churches, synagogues, mosques, and temples.)

As a legal matter, it has never been easy to pin down what exactly should count as a “religion” or “church.”  Coronavirus only complicates things further.  Despite the prominence of the First Amendment’s religion clauses in law and society, definitional disputes over these terms have not been litigated first and foremost as a matter of constitutional law.  As former IRS Commissioner Jerome Kurtz noted, “Our tax law places the I.R.S. near the forefront in making delicate decisions involving the definitions of ‘religion’ and ‘church’ . . . .”  That’s because churches enjoy a number of tax benefits beyond those enjoyed by all other 501(c)(3)’s.  The IRS is thus left with the task of deciding what counts as a church for tax-benefit purposes—decisions it makes using a flexible fourteen-factor test.

see more

“Law, Religion, and Coronavirus in the United States”: Adelaide Madera

On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Adelaide Madera, Professor at Università degli Studi di Messina, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’sInternational Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.

The Impact of Coronavirus on Public Funding of Religious Organizations

By Adelaide Madera

Since Everson v. Board of Education, access to public  funding for religious organizations has been a controversial issue and fiercely litigated. During the pandemic crisis lockdown, the enactment of the CARE Act that established the Paycheck Protection Program, raised new challenges for religious charities.

The PPP appeared attractive to many organizations and businesses, both religious and secular, which  needed to maintain their employees on their payroll. However, many concerns arose as to whether religious nonprofits were eligible for government funding, whether accepting PPP loans implied that religious organizations were federal contractors, and to what extent access to public funding could affect their religious identity. On April 3, the SBA issued guidelines to clarify some key points. First, receiving the loan has no implications on church autonomy, religious identity, internal governance, or on the exercise of rights guaranteed by federal statutes (RFRA, section 702 of Title VII, First Amendment). Accepting a PPP loan “constitutes Federal financial assistance” and implies “certain nondiscrimination obligations,” even though they “are not permanent.” The only limitation applies to all beneficiaries: 75% of the loan must be used to cover payroll costs. The SBA’s frequently asked questions underlined that the SBA’s nondiscrimination rules, as Title VII provisions, include an exemption allowing religious organizations to employ staff sharing their religious beliefs “to perform work connected with [the organization’s] religious activities.” The crucial question is whether this exemption allows religious organizations to select employees who also share their standards of behavior. Certain academics incline toward a narrow reading of this provision,[1] and a textualist reading of the expression “because of sex” of Title VII resulted in the Supreme Court’s inclusion of gender identity and sexual orientation under  the protection offered by Title VII.

see more

“Law, Religion, and Coronavirus in the United States”: Christopher Lund

On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Christopher Lund, Professor of Law at Wayne State University Law School, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’sInternational Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.

Quarantines, Religious Groups, and Some Questions About Equality

By Christopher Lund

When the government imposes quarantine orders for public safety, shutting some places down and leaving other places open, how should it treat religious organizations and religious services?  A natural answer is that religious organizations should be treated equally.  And that makes sense.  Equality is a solid moral principle, with wide-ranging appeal and deep roots in history and in law.

But equality is not self-executing.  And the deeper one goes into these quarantine orders, the more that becomes apparent.  We are trying to treat religion equally, but we don’t quite know how.  I’m planning a longer piece that will go into more details.  But for this blog post, let me simply try to demonstrate two things to you.  First, quarantine schemes require judgments about the value of religious exercise—which is uncomfortable in a system like ours, which tries to keep the government out of such questions.  And second, by insisting that all gatherings of all religious organizations be treated the same way, quarantine schemes become blind to genuine religious differences.  We are deciding how much to restrict religious organizations in general by imagining what happens in a religious service, but our imagined religious service ends up looking a lot like a Sunday morning Christian worship service. 

See more

“Law, Religion, and Coronavirus in the United States”: Mary Anne Case

On October 2, 2020, the Center co-hosted a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” Center Co-Director Mark Movsesian moderated one of the webinar’s panels, “Religious Organizations.” The following post, by Mary Ann Case, the Arnold I. Shure Professor of Law at University of Chicago Law School, was one of the panel presentations. For other Webinar presentations, please check out the websites of BYU’s International Center for Law & Religion Studies and Emory’s Center for the Study of Law and Religion.

Covid and Egalitarian Catholic Women’s Movements

By Mary Anne Case

In his March 27, 2020 extraordinary message Urbi et Orbi, Pope Francis insisted that the time of coronavirus was “not the time of [God’s] judgement, but of our judgement: a time to choose what matters and what passes away, a time to separate what is necessary from what is not.” The injunction “to seize this time of trial as a time of choosing” offered by the Pope came at what may have been a providential time for egalitarian Catholic women’s movements.  As the pandemic closed church buildings worldwide, and both the women and the priests went home and on line, the effect was to energize and unite the former while isolating the latter.  As priests celebrated mass alone, women organized worldwide mixed sex, women-centered participatory Zoom liturgies, and worshipped in house churches and in communities of nuns without benefit of clergy.   The choices made during the pandemic may have lasting consequences for both the clergy, who may find it increasingly difficult to overcome their isolation and reconnect with their flock, and the women and their supporters, who seem increasingly disinclined to go back rather than forward.

Two video images capture for me the stark choice offered to Catholic feminists in this time of choosing.  The first is of Pope Francis, alone in the middle of a vast, fenced-off, rain-drenched St. Peter’s Square delivering the afore-mentioned Urbi et Orbi blessing to the city of Rome and to the world.  He is flanked by a holy icon of the Virgin and a crucifix, and accompanied only by a handful of male clergy. The singing that accompanies him consists exclusively of male voices, reminding the listener of longstanding bans on women’s singing in church.  Visible in the distance, pressed up against the gates, are a small number of the faithful (or merely curious) sheltering under umbrellas.  This brought back the memory of other occasions when women were literally as well as figuratively fenced out.  For example, in 2018, during the Synod on Young People, the Faith and Vocational Discernment, several dozen women and men protesting the failure to grant voting rights to any woman at the synod stood outside the gates that led to the synod hall, chanting  “Knock, knock.” “Who’s there?” “More than half the church.”  Their protests attracted the direct attention of more police than synod fathers.

see more