Welcome Back to Dan Crane (left), who will be guest posting with CLR Forum this month and next. Dan is the Frederick Paul Furth, Sr. Professor of Law at Michigan. He joined us last fall for an online debate with Barak Richman on antitrust and the clergy employment. Great to have you back, Dan!
Enforcing the “Jewish Prenup”
Thanks to Mark for the invitation back to the CLR Forum for a guest post. Yesterday, a couple of law blogs (see here and here) picked up a story in the Jewish Daily Forward about an important Connecticut state court decision that enforced what is often referred to as the “Jewish Prenup” (“In Victory for ‘Chained’ Wives, Court Upholds Orthodox Prenuptial Agreement“). I’ve written a bit about the decision previously, but wanted to explain a little bit more about what is at stake. [UPDATE: Here’s a copy of the decision Light v. Light reprinted from Westlaw with permission of Thomson Reuters. If you wish to check the currency of this case by using KeyCite on Westlaw, then you may do so by visiting www.westlaw.com.”]
Under Jewish law, only a husband can initiate a Jewish divorce. Moreover, if a husband is “coerced” into granting a divorce, then the divorce is considered invalid. This combination of rules has caused some significant problems for Orthodox Jewish women seeking to end their marriage where their husband refuses to grant them a Jewish divorce document. In order to address this growing problem, a number of Jewish organizations – most prominently, the Beth Din of America – created a prenuptial agreement, which is now signed by a growing number of Orthodox Jewish couples. This agreement’s most salient feature is a provision where the husband agrees to provide his wife with financial support in the amount of $150 per day “so long as the two . . . remain married according to Jewish law.” The purpose of this provision is to walk a fine line between placing financial pressure on the husband to ensure he grants the divorce without placing so much pressure so as to render any subsequent divorce granted by the husband “coerced” (for a recent article exploring various considerations on this and related points, see here starting on page 12).
It was this support provision that was enforced by the Connecticut Superior Court in its recent decision in the case of Light v. Light. In so doing, the court considered the husband’s claim that enforcing the prenuptial agreement would violate the First Amendment by requiring the court to “consider[] religious doctrines and ceremonies.” However, the court rejected this argument, holding that the prenuptial agreement could be interpreted and enforced in accordance with “neutral principles of law”:
In the present case, a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.
It is important to note here that the prenuptial agreement does not require the husband to grant his wife a Jewish divorce. Indeed, courts have differed as to whether a contract in which a husband agrees to grant his wife a religious divorce is enforceable; the issue raised in such cases is whether or not civil enforcement of a contract that requires a husband to grant a religious divorce violates the religion clauses of the First Amendment (for contrasting views, see here and here). By contrast, the prenuptial agreement simply requires the husband to make support payments, thereby avoiding these potential First Amendment problems.
This decision – which is in my view both correctly decided and well reasoned – is likely to have significant impact on any future cases involving this increasingly popular prenuptial agreement. The “Jewish prenup” has done an impressive job of avoiding a variety of both constitutional objections and Jewish Law conundrums. And as a result, this prenuptial agreement is likely to go quite far in protecting Orthodox Jewish women by providing them with the financial leverage necessary to ensure that they receive their religious divorces from otherwise reluctant husbands.
Mario Draghi, Catholic Social Doctrine, and the Euro Crisis
The European sovereign debt crisis is far from over and it is, as recent Italian elections have shown, at the center of European political debates. One of the main actors in the crisis has been the European Central Bank under the leadership of the Italian President Mario Draghi.
On February 27, Draghi gave an important speech at the Katholische Akademie in Bayern (Germany). The speech may be interesting for those studying the relationships among Catholic Social Doctrine, economics, and public policy. In the speech, Draghi reminds listeners how important it is not to separate economic from moral concerns and stresses that: “Ultimately, we must be guided by a higher moral standard and a profound belief in creating an economic order that serves every person.” He quotes Cardinal Reinhard Marx: “the economy is not an end in itself, but is in the service of all mankind”. According to Draghi, one of the central mechanisms to manage the current crisis is subsidiarity: the shared responsibility and mutual support between the EU supranational level and the different member states. For Draghi: “Catholic Social doctrine makes absolutely clear that subsidiarity has to be paired with support. But what binds these together is trust.” In sum, it is a speech worth reading to understand the euro-crisis from a Catholic Social Doctrine perspective.
The speech is available here.
Welcome to Pasquale Annicchino
This month, CLR Forum is delighted to welcome guest blogger Pasquale Annicchino. Pasquale is a Research Fellow at the Robert Schuman Center for Advanced Studies at the European University Institute in Florence and the book review editor for Religion and Human Rights. He has his doctorate in law from the University of Siena, as well as degrees from the European Academy of Legal Theory in Brussels and University College London. This semester, he’s teaching at the law school at BYU. Welcome, Pasquale!
Politics and Religious Freedom Theory
In a forthcoming book, which has already transformed the field and is available for preorder now, Marc DeGirolami divides theoretical work on religious freedom into three schools or camps: monist, pluralist, and skeptical. That typology is accepted by many scholars. Monists are thought to believe that law in the area can be attractively explained by a single value or principle, pluralists are seen to argue that only multiple concerns can account for the full range of religious freedom outcomes, and skeptics reportedly contend that a coherent theory of religious freedom doctrine is impossible. DeGirolami takes a new cut at this typology, noticing that some writers approach the task with a sense of tragedy, whereas others have a more sanguine disposition.
Here, I want to explore a different feature of this threefold scheme—its intersection with politics. A notable feature of the typology is that it has been understood to cut across political affiliations. (When I use the term politics here, I mean to refer to the recognized affinities that characterize wider policy conversations nationally.) Each of the three schools has been thought to contain both political liberals and political conservatives. Often, methodology and party politics have intersected in unusual and interesting ways, on this way of thinking. Monism is perhaps the least politically diverse, but if Justice Scalia counts as a member of that school, then it too spans the aisle.
Two questions come to mind about this familiar understanding of the interactions between methodology and politics among religious freedom theorists. First, has this conceptualization of the field ever been correct? Has the role of politics been as complicated and unpredictable as it suggests?
If it has captured a measure of the truth, a second question is whether it still usefully describes the literature, or whether we are witnessing a realignment. Certain debates have moved to the foreground — such as the conversation over whether religion deserves special constitutional protection as compared to deep secular commitments of conscience — and positions within those debates do not seem to be easily captured by the old typology. Yet those positions do seem to track wider political affinities more readily than did the customary choice among monism, pluralism, and skepticism. For example, liberals tend to think that religion is not special, conservatives usually argue that it is, and moderates believe that it only sometimes should be protected like secular conscience. Does this shift, if it is happening at all, suggest a different kind or degree of politicization within the field of religious freedom theory? Is any such shift clarifying or obfuscatory?
Things I Haven’t Figured Out — Part 3: Where’d the Framers Go?
Over the last couple of years, I’ve had the chance to talk about my church-state book at a few law schools. At least twice, a distinguished Con Law professor responded along the lines of, “Sure, that may be what the establishment clause meant to the people who adopted it, but that’s not what we mean by ‘original meaning.’”
Around many law schools these days, “original meaning” has nothing to do with the people we often call the Framers. Rather, the core of modern originalism is the search for “objective public meaning” – that is, what an average or reasonable person at the time would have understood the text to mean. Some even point to a hypothetical ratifier with full knowledge of all the circumstances (essentially, in my view, a time-traveling law professor).
So what happened to the Framers? Basically, they’ve been expelled along with all forms of “intentionalism,” now known as the Old Originalism of the “undertheorized” past. Too many Framers for one intent, it seems. And, besides, as Justice Scalia often points out, it’s often easy to find some Framer whose policy choices are the same as yours, thus allowing too much results-driven analysis.
These are good criticisms. Just look at how the Supreme Court latched onto Madison and Jefferson to build its wall of separation jurisprudence without considering what anyone else might have thought.
What I find perplexing is that people believe that the hunt for objective public meaning avoids these problems. Let’s look, for example, at the system of town-based taxes for Read more
Things I Haven’t Figured Out — Part 1: Delayed Reactions
Patrick Dineen has an excellent article, “Cities of Man on a Hill” in the inaugural issue of an important new journal, American Political Thought. His take on the various types of American exceptionalism is definitely worth reading. But, for today’s purpose, it provides a chance to think briefly about John Winthrop’s iconic sermon that gave us the oft-quoted concept of a “city on a hill.”
A couple of years ago, the Witherspoon Institute sponsored a church-state seminar, and we were reading Winthrop’s “Modell of Christian Charitie.” Called the greatest sermon of the millennium by Harvard’s University Preacher, it is one of the most anthologized works of American literature. All of us who went to school in the U.S. undoubtedly had to read it, and we learned that Winthrop delivered it on the Arabella, the ship bringing the early Puritans to the New World.
What I found amazing, when I looked in to it, was that Winthrop’s sermon has had enduring effects on presidents and preachers, but it doesn’t appear to have moved his listeners. Winthrop’s most recent biographer tells us that, despite the Puritans’ penchant for leaving an impressively abundant documentary record, “not a single individual recorded in a letter, diary, or other source having heard Winthrop deliver the sermon.” In fact, early Puritan historians, including one who sailed on the Arabella with Winthrop, never mentioned the sermon. (See Francis Bremer, John Winthrop: America’s Forgotten Founding Father (2005).)
I’m not sure what that tells us other than, perhaps, it takes a while to find out what will stand the test of time, much as Roger Williams’ religious liberty writings were virtually unheard of in America until they were discovered a century later and used to great effect by Isaac Backus and other Baptists.
One final thought: at the end of Winthrop’s sermon, he talks about a covenant (i.e., essentially a contract) between the Massachusetts Bay Company and God. What do you think the terms were?
Don Drakeman
Things I Thought I Knew — Part 3: The Antifederalists and Religion
In the last few decades, the Antifederalists have surged, partially because they look like the patron saints of small government, and, for our purposes, because they have been held up as recognizing the importance of religion for the health of a republic.
“[M]any Antifederalists,” according to Herbert Storing, “were concerned with the maintenance of religious conviction as a support of republican government.” And he should know. Storing was not only the dean of Antifederalist scholars, he created a 7 volume canon called (perhaps over-optimistically), The Complete Antifederalist. Since Storing’s book is all about the constitutional debates, it’s hard not to assume that he meant that they were looking for ways for the federal government to support religion.
But, what I found perplexing, when I looked into it, is that even he has trouble documenting his statement about “many Antifederalists.” In all 7 volumes, he only has one Antifederalist, Charles Turner of Massachusetts,” talk about the importance of “Christian piety and morals” to the country. Storing bolsters this statement with a letter by another Massachusetts writer who wasn’t an Antifederalist, and a Virginia writer who wasn’t talking about the Constitution.
To be sure, many Antifederalists did think religion was important to republican government; they shared that belief with many Federalists. The point is that very few Feds or Antifeds thought it was a federal issue. At the state level, there had been – and would continue to be – battles over just how much the government needed religion. But what is most impressive about looking for religion in Storing’s Complete Antifederalist is that it’s rarely there – just an occasional comment about protecting religious freedom, and a few statements both for and against a religious test for public office.
In short, the Antifederalists – in their discussions of the federal Constitution – really didn’t have much to say about religion. If they had thought it was an issue, they probably would have had a lot to say. But it wasn’t, and they didn’t. So anyone who wants to enlist them in a push for more recognition of the importance of religion at the national level must first remember what is abundantly clear from Storing’s collection — that the Antifederalists didn’t want a “national” (a word they hated) government to have power over anything.
Don Drakeman
Things I Thought I Knew — Part 2: The Simple Cobbler from Connecticut
American statesman Roger Sherman is best known to us for not being very well known. We find him mostly in collections of works by “Forgotten Framers.” Or, for those of us raised in the era of the Broadway play and film, 1776, he is “just a simple cobbler from Connecticut,” whose intellect isn’t up to helping draft the Declaration of Independence.
Mark David Hall’s excellent new book, Roger Sherman and the Creation of the American Republic (2012), shows us what we’ve been missing by focusing too much attention on the more famous founders. Hardly just a simple merchant, Sherman was smart, articulate and thoughtful, and he was a deeply religious and intellectually engaged Calvinist in the New England tradition. Sherman’s Reformed Protestant faith was not only important to him, but, thanks to Sherman and his New England colleagues, it ended up contributing as much to American nation-building as the much more commonly credited Enlightenment.
Meanwhile, the original “simple cobbler” from New England is always worth revisiting. Nathaniel Ward was a Puritan minister who wrote, under a pseudonym, a satiric 1646 essay titled, “The Simple Cobbler of Aggawam in America.” The Simple Cobbler sets out a New England view of religious toleration not long after Roger Williams was banished, as follows: “Antinomians, Anabaptists, and other Enthusiasts shall have free Liberty to keep away from us, and such as will come to be gone as fast as they can, the sooner the better.”
Don Drakeman
Things I Thought I Knew — Part 1: Supreme Court Facts
When I was teaching an undergraduate research class on the Constitution, I would sometimes give the students this assignment: Find a Supreme Court opinion making a constitutional argument that relies on a factual statement. Then go do the research and see if the facts that are necessary to the argument are accurately stated. At the outset, I thought the Court’s batting average would be pretty high, but that wasn’t necessarily the case.
Take, for example, the Everson case where Justice Rutledge read the establishment clause in light of James Madison’s Memorial and Remonstrance because of Madison’s “authorship” of the religion clauses and the fact that the First Amendment was the “direct culmination” of the struggle for religious freedom in Virginia.
Does the documentary record support Rutledge’s factual claims about the religion clauses? The answer, at least in my view, is somewhere between “no” and “not really.” But this isn’t just an academic research exercise or a chance to say, “Gotcha.” It’s a question about what makes a persuasive constitutional argument.
This what-are-the-real-facts issue might seem to be narrowly focused on originalist arguments, since they need to cite the historical record showing the Constitution’s original meaning (whether they are “Old” Originalist arguments focused on the framers or “New” Originalist ones about the “public meaning” of the text). But even non-originalist justices sometimes rely on economics, sociology, psychology and other academic fields. In those cases, we can ask whether the justices are fairly representing the state of scholarship, or are they engaging in a bit of “law office social science.”
So what if the Court is wrong, or if, perhaps, it over-interprets a bit? That’s a deeper question, but I tend to side with the distinguished Princeton professor, Edward Corwin, who said (in 1951) in connection with the Supreme Court’s landmark church-state cases, “the Court has the right to make history [but] it has no right to make it up.
Don Drakeman