Posted on by Mark Movsesian

Thanks to Anna Su and Welcome to Mike Helfand

Thanks very much to Anna Su, who has been blogging with us for the month of April. We enjoyed having you with us, Anna, and hope you’ll come back soon.

And welcome to our next guest blogger, Mike Helfand, who will be posting with us in May. Mike joins us from Pepperdine, where he is Associate Professor of Law and Associate Director of the Diane and Guilford Glazer Institute for Jewish Studies. He writes in law and religion, arbitration, and constitutional law; his most recent piece, Litigating Religion, will appear in the Boston University Law Review. Welcome, Mike!

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Religious Freedom Promotion and its Discontents

A month ago, the U.S. Congress appointed Prof. Robert George and Dr. Zuhdi Jasser to serve as the new commissioners on the U.S. Commission on International Religious Freedom (USCIRF). Speaker Boehner appointed George while Senator McConnell appointed Jasser. (The appointments were not without some controversy. An online petition against their appointments made the rounds accusing both of anti-Muslim bias through their organizational affiliations.) It still surprises me that the statute creating the USCIRF remains unknown to many Americans today. According to its website, the USCIRF “monitors and advocates for religious freedom abroad wherever that right is being abused. USCIRF also offers policy solutions to improve conditions at the critical juncture of foreign policy, national security and international religious freedom standards.” The Commission almost closed shop – it was given a last-minute reauthorization December 16 of last year by Congress and its mandate was extended up to 2018. Interestingly, there is a separate Office for International Religious Freedom within the State Department. The difference between the two is that the USCIRF is an independent federal government entity while the other works within the institutional framework of the State department. In any case, Canada, apparently the new constitutional powerhouse of the world, must think this office is a pretty good idea. Last January, the Conservative government announced the creation of an Office of Religious Freedom within the Canadian Foreign Ministry which would probably use its American counterpart as a model of sorts.

In this last post (thanks Mark and Marc for the guest stint!), I want to talk a bit about the history and implications of these official religious freedom promotion activities. Religious freedom has always occupied a special place in the pantheon of American freedoms. But the origins of this office are much more recent than what an ordinary observer might think. To be sure, Read more

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The limits and uses of law on religion

A few years ago, Sarah Barringer Gordon wrote a review of five books on law and religion where she argued that there was a scholarly divide between what was going on in the realm of religious studies and in the realm of legal, and particularly constitutional studies, when it comes to the field now known as “church and state.” In that piece, she wrote that much of American religious history has happened in courtrooms and because of that, religion scholars should pay attention to what lawyers are doing. While I agree that Supreme Court decisions, aside from their obvious normative effects, have largely shaped the prevailing public discourse about the proper place of religion in the public sphere (just think about the way and the frequency people brandish about the phrase “separation of church and state,” a phrase not found in the text of the Constitution)  in everyday debates involving religion, I also think that U.S. religious history has always been much bigger and broader than what the relatively modern jurisprudence on religious freedom has encapsulated.

It is bigger and broader in two dimensions: domestic and foreign. Two recent books address these. On the domestic side, an example is David Sehat’s book “The Myth of American Religious Freedom” which incidentally is the 2012 winner of the Frederick Jackson Turner award from the Organization of American Historians. In the book, Sehat argues that the Protestant moral establishment of the Founding period has never really disappeared in U.S. history, and in its contemporary incarnation, appears in the form of the Religious Right which persists in its claims for a religiously-based social order. On the foreign side, the book is Andrew Preston’s most recent work Sword of Spirit, Shield of Faith which is a grand narrative of the role of religion in the conduct of U.S. foreign relations from the Founding period to the present.  In both instances of historical work on the topic, the law, in the few instances that it appears, is at best, marginal and does not occupy center stage.

But the insights I want to draw from this goes beyond the desire to illustrate the limits of law. In fact, I want to make the opposite conclusion – law, even in the intermittent way it has regulated the exercise and practice of religious freedom throughout U.S. history, in particular – has profoundly shaped the terrain over which the political and social contestation could occur. This Read more

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Religion in U.S. Foreign Policy, pt. 2

When we look at the existing historiography of American contributions to human rights abroad, there tends to be a rather triumphalist streak to it. In some ways, there is a lot of truth to those claims. That the international human rights regime today bears a large American imprint stands in an uneasy irony with a long domestic history of aversion towards international commitments and entanglements. The saga of the Bricker amendment is the foremost example that comes to mind.

But perhaps it is not ironic at all. Even the late Louis Henkin who celebrates international human rights as projections of American constitutional rights around the world acknowledged that the U.S. tends to embrace human rights wholeheartedly if they are intended for export. In a previous post, I recounted the story of Woodrow Wilson and his efforts to promote religious freedom internationally through the League of Nations covenant. But my story/dissertation does not start with the League Covenant. It starts in 1898, when the U.S. emerged on the world stage as a recognized global power. By and large, the story resembles, in broad outline, Saba Mahmood’s articulation of the politics of religious freedom as one that is intimately tied to the history of European domination of the non-Western world. My story is only concerned with the United States, for now at least, partly because of autobiographical reasons. But in seeking to show this connection between freedom and power, of which the U.S. example seems almost perfect because of its exceptionalist tradition, I also want to look at this history and use it to move beyond debates created by this history. Even if the roots are poisoned, possibilities of redemption remain nevertheless. At least this is my hope.

What I found interesting during the course of my research is a peculiar observation. Similar to the domestic story of American religious freedom which is bigger and broader than the corpus of Religion Clause jurisprudence (a glaring contemporary example is that there is no case, at least on the Supreme Court level which tracks the rise of Islamophobia in the post-9/11 U.S.; the anti-Sharia state constitutional amendments which have been proposed since then are the best indicators, it seems but aside from the one in Oklahoma, they have never been litigated in courts), the external story of American religious freedom insofar as domestic ideas of religious freedom were projected in laws abroad does not also map neatly into any of the existing trends found in Supreme Court cases involving religious liberty, save perhaps for Reynolds. But while language found in existing cases shape, and therefore, also constrain, the way in which the domestic story unfolds, how it is discussed and debated, no such thing occurs in the foreign affairs realm. This question is at the heart of a side project I am currently working on, and which I’ll elaborate on more in a future post, but the one thing I wanted to point out is the disconnect between what happens inside and outside and more importantly, what that disconnect entails.

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The significance of internal views

As part of my Clark Byse fellowship this year, I taught a small workshop during the Fall semester on religious freedom. One of my sessions was devoted to getting a glimpse at the internal views of religions on religious freedom. In that session, I tried to examine religious freedom in two internalist intertwined senses. The first is a faith’s particular attitude to adherents of other faiths, while the second is freedom of conscience for its own adherents. Of course, these religious traditions are far from monolithic and surely there are dissensions within each faith community. There are enough similarities however to be able to paint one tradition’s views on the matter with broad brush strokes, I think. As expected with these kinds of topics, there was a lively discussion regarding the value of such viewpoint. One of the claims was that it does not matter what religions think internally because in any case they will have to conform to the overarching values of – more often than not – the liberal democratic state in which they find themselves.

The point that I was trying to make in the session of course was that it does matter what religions think. The clearest example would be the turnaround of the Catholic Church (though not all would probably agree with me that this could be considered a turnaround – some argue that it is a development in doctrine) with regard to freedom of conscience from the Syllabus of Errors to Dignitatis Humanae. For the past decade, the subject of these reconciliation efforts, that is, to recover internal resources which could be made compatible with external liberal values, and to judge a faith by its own Read more

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Religion in U.S. Foreign Policy, pt. I

As I’ve described briefly in my previous post, the project of historicizing religious freedom is necessarily allied with normative goals and carries normative implications. But before I go to that, I’d like to give a preview of one case study I look at in the dissertation. My project takes a closer look at the American official effort to promote religious freedom as law abroad, an idea historically grounded on the Protestant notion of separation of church and state. A recent book by historian Andrew Preston chronicles the role of religion in U.S. foreign policy from the Founding period to the Obama administration, and in a short companion piece at Foreign Affairs, he argues that precisely because of this history, Obama should take advantage of the fact that the U.S. can also speak in the language of faith when it deals with other countries. I have certain reservations with this general claim but more on that next time. What I do agree with Preston wholeheartedly is that religion played a significant role in U.S. foreign relations. Iraq and Bush were simply part of that ongoing American tradition.

For example, many people know that Woodrow Wilson was a thoroughly devout Presbyterian and that his religious thinking permeated his policies. But what many people don’t know is that he in fact tried to crystallize his concern for religious freedom in the League of Nations Covenant, which met strong opposition from the other Great Powers involved in the negotiations. One of the reasons that France and Britain gave was that the main offenders Russia and Germany were not going to be part of the League anyway so it did not make sense to write it into the Covenant. But while Wilson, for various other reasons, failed to incorporate it in the general Covenant, he succeeded in including it in the several Minority Treaties signed between the Great Powers and the newly-independent countries of Poland, Romania, Hungary and others in Eastern and Central Europe. Articles 2-8 of the Minority treaty with Poland (which served as a template for the others) was in fact called the “Wilsonian core.” Moreover, he was also the one who included it as a guarantee for the inhabitants of Mandate territories.

Now, a question would be why was Wilson interested in doing that? What was in it for the United States? In the same way we ask why is this American tradition present all the way up to Obama? Preston claims that one reason is an exceptionalist conceit of the U.S. as God’s chosen nation.  While that is certainly true, there were, as expected, political uses, at least insofar as lawmaking abroad was involved. But it was one that can’t also be thoroughly divorced from the personality involved or from the prevailing attitudes of the time. Woodrow Wilson, lawyer, political scientist, and the last Ph.D. degree holder to become President of this country, was a visionary when it came to foreign relations in many ways, and the League of Nations, though a catastrophic disaster as it might have been, was one big proof of that. But he was also coming from an imperial milieu. Despite the official promise of independence by the U.S. to the Philippines at that time in the form of the Jones Act of 1916 (the first such act by a colonial power in history, by the way), the U.S. was an overtly imperial power under Wilson. Together, the promise of spreading religious freedom elsewhere was in certain ways an act of humanitarian imperialism, probably not very much unlike the underlying ideals of the Covenant itself. But why law? For the longest period before the American victory over Spain in 1898, the U.S. government has been making interventions on behalf of oppressed religious minorities in the Ottoman Empire, but without the lawmaking part. What changed then?

That, and more stories for the next post.

Posted on by Kevin C. Walsh

The Catholic Bishops in the Roberts Court: Track Record as Amicus Curiae

In the first six years of the Roberts Court (OT05-OT10), the United States Conference of Catholic Bishops filed seven amicus curiae briefs. Four dealt with religious liberty  (Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, CLS v. Martinez, Arizona School Tuition Organization v. Winn, and Hosanna-Tabor v. EEOC), two addressed abortion (Ayotte v. Planned Parenthood and Gonzales v. Carhart), and one dealt with assisted suicide (Gonzales v. Oregon). The table below compares the Justices by whether they voted for the same party supported by the Bishops’ Conference as amicus curiae.

Justice Name

Agreement with Bishops’ Conference as Percentage of Cases

Agreement with Bishops’ Conference as Fraction of Cases
Chief Justice Roberts (Catholic)

100%

7/7
Justice Scalia (Catholic)

100%

7/7
Justice Thomas (Catholic)

100%

7/7
Justice Alito (Catholic)

100%

4/4
Justice Kennedy (Catholic)

71%

5/7
Justice Stevens

50%

2/4
Justice Souter

50%

2/4
Justice O’Connor

50%

1/2
Justice Ginsburg

43%

3/7
Justice Breyer

43%

3/7
Justice Sotomayor (Catholic)

33%

1/3
Justice Kagan

33%

1/3

These statistics reveal a stark division between the Catholic and the non-Catholic Justices, a division that is likely to shape up more and more as one between the Republican appointees (all Catholic) and the Democratic appointees (one of whom is Catholic). The three cases in which the party supported by the Bishops’ Conference garnered the votes of the non-Catholic Justices were all unanimous decisions (Hosanna-Tabor v. EEOC, Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, and Ayotte v. Planned Parenthood). The party supported by the Bishops’ Conference did not attract the votes of a single non-Catholic Justice in any split decision.

As noted in connection with the earlier chart showing the same measure in the Rehnquist Court, the point of this measurement is not to demonstrate influence, but rather to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.

 

Posted on by Kevin C. Walsh

The Catholic Bishops in the Rehnquist Court: Track Record as Amicus Curiae

By my count, the United States Conference of Catholic Bishops filed amicus curiae briefs in 22 cases during the Rehnquist Court. (For a spreadsheet showing USCCB amicus briefs and Justices’ votes for OT86-OT10, see here. Please let me know if the spreadsheet contains any errors.) Ten of the briefs dealt with religious liberty (encompassing statutory, Free Exercise, and Establishment Clause cases); six addressed abortion; three were about end-of-life issues; two involved the death penalty; and one addressed associational freedom. The chart below provides for crude comparisons among the Justices, placing them in an array of more or less agreement in their votes for the party (petitioner or respondent) supported by the USCCB’s amicus curiae briefs. Direct comparisons cannot be made among all the Justices due to the changing composition of the Court over this time period.

Justice Name

Agreement with Bishops’ Conference as Percentage of Cases

Agreement with Bishops’ Conference as Fraction of Cases
Justice White

100%

10/10
Justice Scalia (Catholic)

86%

19/22
Justice Kennedy (Catholic)            86%

18/21
Chief Justice Rehnquist

82%

18/22
Justice Thomas (Catholic)

79%

11/14
Justice O’Connor

77%

17/22
Justice Breyer

58%

7/12
Justice Souter

53%

8/15
Justice Brennan (Catholic)

43%

3/7
Justice Ginsburg

42%

5/12
Justice Stevens

36%

8/22
Justice Blackmun

20%

2/10
Justice Marshall

13%

1/8

The point of counting votes in this particular way is not to assess the influence of the Bishops’ Conference. It is highly doubtful that the Conference’s presence or absence as amicus curiae has had any effect on how the Justices voted. The point, instead, is to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.

Posted on by Kevin C. Walsh · 2 Comments

Justice Brennan and Justice White from the Catholic Bishops’ Point of View

During his time on the Rehnquist Court, Justice Brennan voted in seven cases in which the United States Conference of Catholic Bishops (the “USCCB” or “Bishops’ Conference”) filed an amicus curiae brief. He voted for the party supported by the Bishops’ Conference in three out of those seven cases. By contrast, during his time on the Rehnquist Court, Justice White voted in ten cases in which the USCCB filed an amicus curiae brief (the same seven as Justice Brennan, plus three more). He voted for the party support by the Bishops’ Conference in all ten of those cases.

The low level of agreement between Justice Brennan and the Bishops’ Conference is notable given that Justice Brennan was the last beneficiary of a so-called “Catholic seat” on the Supreme Court.  And Justice Brennan’s voting pattern presents an interesting contrast with Justice White’s.  The contrast is noteworthy because President Kennedy appointed White. As the country’s first (and thus far only) Catholic President, Kennedy could not politically afford to nominate a Catholic to the Supreme Court.  By contrast, Brennan’s Catholicism was an important factor in making him an attractive nominee for Eisenhower.  Thus, one reason that Brennan was appointed is that he was a Catholic, while one reason White was appointed is that he was not a Catholic.  Yet White ended up consistently voting with the Catholic bishops on the Rehnquist Court, while Justice Brennan had one of the lowest rates of agreement during the same time period.

There were five other Justices who voted in all ten cases in which the Bishops’ Conference filed an amicus curiae brief and in which Justice White voted: Chief Justice Rehnquist, Justice Blackmun, Justice Stevens, Justice O’Connor, and Justice Scalia. Rehnquist and Scalia joined White in voting for the party supported by the Bishops’ Conference in all ten of these cases. Justice O’Connor voted for that party in eight out of those ten cases, Justice Stevens in three, and Justice Blackmun in two. In the first several years of the Rehnquist Court, then, the three Justices with the best track record from the point of view of the Bishops’ Conference consisted of two Protestants (Chief Justice Rehnquist and Justice White) and one Catholic (Justice Scalia).