Is it permissible, in a religiously pluralistic society, to use a cross as a symbol to honor veterans and remember war dead?  The question is a recurring one.  Many people (and some judges) say “no”: it is not permissible to use a “sectarian” Christian symbol for this purpose.  Others say “yes,” and they will often argue that the cross need not be viewed as a sectarian or exclusively Christian symbol; it can convey other meanings as well.

Here is a different rationale, which I quote from one of the exam answers in a course I taught recently in Lisbon: “[T]he cross can’t exclude anyone without denying itself, for Christianity . . . views non-believers as their brothers and sisters, putting love and understanding towards them on a first place.  It is a core of Christianity to be for all, not excluding anybody, but of course, only on their voluntary acceptance.”  (Please excuse the sketchy syntax, etc., which are no worse than what I often see on timed exams– or even first drafts– from native English-speakers.)  The student goes on to conclude that the cross is an ideal symbol for a war memorial.

I haven’t heard this sort of rationale offered in this country.  Someone making this contention for this purpose could expect to be criticized for a kind of religious bigotry.  Still, I found the answer intriguing.  Might it be defended?

The intention, it seems, is good: the idea is to include others– to include everyone, in fact, not just Christians, not just “reasonable” people.  Doesn’t that intention deserve some commendation?

Still, good intentions only take one so far.  The most obvious objection, I imagine, is that even if Christians view their faith as in some sense universally inclusive, and even if the cross symbolizes this aspiration, this is still a specifically Christian expression of a specifically Christian inclusiveness.  Everyone is being “included” by being viewed as a brother or sister in Christ.  And if the government is associated with that kind of specifically Christian inclusiveness, then it is understandable that non-Christians would object.  They presumably don’t want to be “included” in that Christian way.

Thus, even in its professed (and presumably sincere) inclusiveness, the cross– and the rationale supporting it– are sectarian.  The point seems cogent enough.  So I don’t expect to be making this student’s argument anytime soon.

Still, I wonder.  Won’t every offer of inclusiveness be grounded in some underlying position that not everyone accepts?  Will all forms of inclusion thus be partisan, or if you like sectarian, in the way this student’s rationale is?  We can say why the rationale is problematic in a pluralistic society.  But is there any other position that escapes the problem?  True, the rationale is inclusive on its own terms.  Can any position do better than that?

(Enter at this point Rawls et al.  Repeat questions.)

— Steve Smith

In May I taught a short course at the University of Lisbon – five consecutive days, two hours per day– on “Government-Sponsored Religious Symbols and Expressions.” After the usual adding and dropping, there were twenty students in the class, about half from Portugal and the other half from countries throughout Europe, including France, Belgium, Germany, and Poland. I don’t know whether the students were anything like a representative cross-section, but in any case it was interesting to see how their perspectives differed from those I encounter in classes here.

I had written up a hypothetical case based on the Mt. Soledad cross case that the Supreme Court declined to review (for now anyway) last week. On the first day, one of the students “stated the case”– quite capably– and ended with “So the challengers are suing to have the cross removed . . . . I’m really not sure why.”

At one point in the discussion, I took a “straw poll,” as I sometimes do. The vote was 18-2 for letting the cross stay. I rephrased the question: How many think the court should order the cross removed. Now the vote was 19-1 against judicially-ordered removal. And the lone dissenter changed his vote when reminded that the cross had ostensibly been erected as a war memorial.

This consensus surprised me, considering Europe’s legendary secularity; and it also worried me, not because I disapproved, exactly– given my views, this was an unusually sensible bunch– but because it looked to make for a boring (and maybe very short) class. So of course I started to argue the other way. I told them about my lunch with Mike Newdow, an intelligent and sincere and generally reasonable fellow. I asked how they’d feel if they were atheists (which some of them were, not surprisingly, and said so). No one budged.

When we discussed the Lautsi v. Italy case a couple of days later, opinion was much more mixed. Some students felt strongly that a cross on the wall of a classroom was inappropriate. But on public property on a high hill overlooking the city? Just not a problem.

I told them that my students in the US would be much more divided in their views; many would find the cross quite offensive– and unconstitutional. I wondered out loud why attitudes would be so different. Someone blurted out, half-seriously, “That’s because Americans are paranoid.” I think that was the word, anyway; it was something to that effect.

So I wonder. Was he right? Is there something excessive, maybe a little unmoored, about American attitudes in these matters?

— Steve Smith

I am in the middle of reading Robert Hugh Benson’s historical novel “Come Rack! Come Rope!” which chronicles the lives of English Catholics under Queen Elizabeth.  Prominently featured in the book’s early going are the various fees and fines imposed upon those Catholics who failed to abide by the government’s bidding and attend Anglican church services.

As I read today’s Supreme Court decision regarding the “Patient Protection and Affordable Care Act”, I am struck by a certain parallel.

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According to a news report from today’s Times of Israel, a German court has held that the circumcision of children constitutes “severe and irreversible interference into physical integrity” and is as such prohibited unless medically necessary.

Could Americans be confronted by a similar decision someday?

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Today is the feast of St. Thomas More, patron Saint of lawyers.

Although the quotation above does not capture his final words with complete accuracy, it raises an issue that I have often pondered as a corporate law scholar.

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As Mark mentioned back in April, yesterday kicked off the U.S. Catholic Bishops Conference’s “Fortnight for Freedom.”  As per the USCCB’s website, this is:

“special period of prayer, study catechesis, and public action [that] will emphasize both our  Christian and American heritage of liberty. Dioceses and parishes around the country have scheduled special events that support a great national campaign of teaching and witness for  religious liberty.”

This is truly an unprecedented development on a variety of levels (at least in terms of recent American history), which makes media’s silence and scant coverage deafening.

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A phenomenon I’ve noticed increasingly of late is the tendency of individuals to opine on particularly weighty religious matters despite their rather extreme ignorance regarding these very same matters.  I’ve seen this regularly on Facebook, but even on more formal occasions – such as commencement addresses.

Indeed, the phenomenon extends to (and, in fact, is commonly manifested by) statements made by non-Christians regarding questions of Christian belief and practice.

As I would not opine seriously on the best procedures to follow with respect to open-heart surgery (as I have absolutely no medical training), why are so many others who have never had anything to do with religion so quick to comment on serious matters of religion?

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Mark has written about the SSPX (the Priestly Fraternity of St. Pius X) here and here.  As Mark mentioned, the SSPX is a canonically irregular Catholic group with a traditionalist orientation (in terms of liturgy, discipline, and doctrinal interpretation).  I had hoped to report upon the group’s full re-integration into the Catholic Church this month – which is something that well-founded rumours had predicted.  Alas, the latest indication is that if such a re-integration occurs, it will occur in July at the earliest.  As this is a story that I’ve been following closely for some years now, I thought I’d spend a post laying the situation out and offering a few observations.

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I have long pondered the question of whether a for-profit business corporation ought to be afforded standing under the Free Exercise Clause.  The issue has not been addressed at length in the case law – in fact, those rare courts to have been presented with it have usually found a way to side-step the issue and resolve the matter on other grounds.

I certainly believe the argument for such standing is stronger than ever in the wake of Citizens United, which afforded for-profit corporations the full protections of the First Amendment’s free speech rights.

If the Supreme Court fails to strike down ObamaCare (a decision which should be arriving any day now), it may have to address this question.  For a handful of plaintiffs in the lawsuits against ObamaCare’s contraceptive / sterilization / abortiofacient mandate consist of for-profit business corporations that are pressing free-exercise claims.

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