From the files of Secretary of Transportation S. Panza

Administrative law at its best.

No Tilting

Olivier Roy on “The Closing of the Right’s Mind”

The distinguished sociologist of religion, Olivier Roy (author of a very fine book called Holy Ignorance), has an interesting op-ed in the New York Times today entitled, “The Closing of the Right’s Mind” (no citation to Alan Bloom?). The large point in the piece has to do with the secularization of certain political parties in Europe that were formerly linked to the Christian churches of Europe, principally the Catholic Church. Here’s the opening:

The longstanding link between the political right and various Christian churches is breaking down across Europe. This is largely because the right, like much of European society, has become more secular. Yet this hardly indicates progress: Animated by an anti-Islamic sentiment, the right’s position is endangering freedom of religion, as well as secularism and basic democratic traditions.

Up to the 1950s, the cultural values endorsed by the right throughout much of Europe were not so different from the traditional religious values of Catholics and Protestants. Homosexuality was criminalized in many countries. Children born out of wedlock had fewer rights than “legitimate” children. The law in most countries protected family values, censored some forms of pornography and condemned what the French call mauvaises moeurs (roughly, loose morals).

The changes brought on by the decades that followed–in which rights and values of sexual autonomy came to dominate the scene–were initially the purview of the political left but eventually, Professor Roy notes, came to be adopted by the political right as well. And that has resulted in the fracturing of connections between the political right and the traditional European churches, which largely do not subscribe to those values.

The “twist,” however, is that the political right has assumed the mantle of Christianity without claiming any of its values. It has dissociated itself from Christianity; it has secularized. But it has simultaneously maintained that Western Europe is Christian. It has done this not because it is truly Christian–“spiritually” Christian–but for political reasons, principally for the purpose of resisting a growing Islam in Europe.

The piece is very interesting, as I say, but what principally interested me is how American it sounds. The claim that religion’s true value is its “spiritual” essence, rather than any number of other values, can be found in American separationist writings dating to Roger Williams. It has deep roots in a kind of Protestantism and Evangelicalism typical of the American experience. I would not have thought that the European experience, in which the political importance of religion was always far more prominent, was the same. And the notion that the association of politics and religion exerts a corrupting influence on religion may be traced in a direct line from James Madison all the way to David Souter’s church-state dissents. But, again, I take it that has not been the European historical experience. Indeed, Professor Roy himself notes in the fragment quoted above a period in which the political right and the European churches were plausibly connected. But if the separationist corruption argument is right, then this period of association was no less corrupt than the current condition of dissociation.

Indeed, in the view of the separationist, the previous period was just as corrupting for politics and religion as the present. This may be the reason that Professor Roy raises the Lautsi case, concerning the display of crucifixes in Italian public school classrooms, a practice which preceded by many years the current difficulties faced by European political parties. The European Court of Human Rights upheld the practice based in part on the religious culture and heritage of Italy. Professor Roy criticizes the ruling on the ground that “to defend a distinct cultural Christian identity is to secularize Christianity itself.”

Again, historically that has not been true in Europe; Christendom coexisted comfortably with Christianity for centuries, well before “secularization” in its contemporary form ever came on the scene. And even if the statement were true, its truth would have little to do with the current conditions of the political right in Europe. That statement reflects a larger vision of the nature of the relationship between church and state–a distinctively American conception of that relationship principally (though not exclusively) embraced today by the political left in this country–strict separationism. Its influence in American law, however, has been steadily declining–there are no more church-state separationists on the Supreme Court. It is striking that separationism of this sort should have such contemporary purchase for the very different historical conditions of Western Europe.

UPDATE: Revised Conference Agenda– “International Religious Freedom and the Global Clash of Values”

Here is the updated schedule for our upcoming conference, International Religious Freedom and the Global Clash of Values, in Rome, Italy on June 20-21. If you happen to be in Rome, it would be great to have you!

The Center for International and Comparative Law and the Center for Law and Religion at St. John’s School of Law, and the Department of Law at the Libera Università Maria SS. Assunta, are pleased to present an academic conference:

International Religious Freedom and the Global Clash of Values

Taking place in Rome on Friday, June 20, 2014, and Saturday, June 21, 2014, the conference will bring together American and European scholars and policymakers to discuss the place of religious freedom in international law and politics. Speakers will address a variety of perspectives. Proceedings will be in English and Italian with simultaneous translation.

Revised Conference Agenda

Friday, June 20, 2014

1:30 – 2:30 p.m.
Lunch

2:30 – 2:45 p.m.
Welcome

2:45 – 4 p.m.
Keynote Panel
Religious Freedom in International Law, Yesterday and Today
Thomas Farr (Georgetown University)
John Witte, Jr. (Emory University)
Moderator: Marc DeGirolami (St. John’s University)

4:15 – 5:30 p.m.
Panel 1: The Politics of International Religious Freedom
Pasquale Annicchino (European University Institute)
Heiner Bielefeldt (UN Special Rapporteur on Freedom of Religion or Belief)
Hon. Ken Hackett (US Ambassador to the Holy See)
Moderator: Margaret E. McGuinness (St. John’s University)

Saturday, June 21, 2014

8:30 – 9 a.m.
Coffee

9 – 10:15 a.m.
Panel 2: Comparative Perspectives on International Religious Freedom
Francisca Pérez-Madrid (University of Barcelona)
Marco Ventura (Catholic University Leuven and University of Siena)
Roberto Zaccaria (University of Florence)
Moderator: Monica Lugato (LUMSA)

10:15 – 10:30 a.m.
Coffee

10:30 – 11:45 a.m.
Panel 3: Christian and Muslim Perspectives on International Religious Freedom
Abdullahi Ahmed An-Na’im (Emory University)
Olivier Roy (European University Institute)
Nina Shea (Hudson Institute)
Moderator: Mark L. Movsesian (St. John’s University)

Noon – 12:30 p.m.
Conference Conclusions
Giuseppe Dalla Torre
LUMSA

Location
LUMSA, Complesso del Giubileo
via di Porta Castello, 44 – Roma

Registration
Please register to attend the conference by June 9 at: eventi@lumsa.it

More Information
Monica Lugato | LUMSA Department of Law | monicalugato@lumsa.it
Mark L. Movsesian | St. John’s School of Law |Mark.Movsesian@stjohns.edu

Scruton, “The Soul of the World”

From the noted philosopher of aesthetics Roger Scruton comes this new volume,Soul of the World The Soul of the World, published by Princeton University Press, in which Scruton offers a philosophy and a sociology of religion as situated within various worldly, personal, and aesthetic forms and experiences. The publisher’s description follows.

In The Soul of the World, renowned philosopher Roger Scruton defends the experience of the sacred against today’s fashionable forms of atheism. He argues that our personal relationships, moral intuitions, and aesthetic judgments hint at a transcendent dimension that cannot be understood through the lens of science alone. To be fully alive–and to understand what we are–is to acknowledge the reality of sacred things. Rather than an argument for the existence of God, or a defense of the truth of religion, the book is an extended reflection on why a sense of the sacred is essential to human life–and what the final loss of the sacred would mean. In short, the book addresses the most important question of modernity: what is left of our aspirations after science has delivered its verdict about what we are?

Drawing on art, architecture, music, and literature, Scruton suggests that the highest forms of human experience and expression tell the story of our religious need, and of our quest for the being who might answer it, and that this search for the sacred endows the world with a soul. Evolution cannot explain our conception of the sacred; neuroscience is irrelevant to our interpersonal relationships, which provide a model for our posture toward God; and scientific understanding has nothing to say about the experience of beauty, which provides a God’s-eye perspective on reality.

Ultimately, a world without the sacred would be a completely different world–one in which we humans are not truly at home. Yet despite the shrinking place for the sacred in today’s world, Scruton says, the paths to transcendence remain open.

Second Circuit Holds that National Motto, “In God We Trust,” on the Currency is Constitutional

In a decision last week, the U.S. Court of Appeals for the Second Circuit joined four other circuits (the D.C. Circuit, the Tenth Circuit, the Fifth Circuit, and the Ninth Circuit) in upholding the constitutionality of two federal statutes that require that the national motto, “In God We Trust,” be placed on all coinage and paper currency. The court affirmed the dismissal of the complaint by the district court (Baer, J.).

The panel noted that there was some dispute and confusion about the proper Establishment Clause standard to apply in the case. It settled on the Lemon test, which is the “prevailing test in this circuit.” How odd that there is a “prevailing test” in a circuit that may well have been rejected by a current majority of the Supreme Court. And yet while the Second Circuit applied a test whose viability is in question, it also deferred to repeated Supreme Court dicta on the issue, indicating that the motto and its inclusion on the currency is a reference to our religious heritage and therefore satisfies the “secular purpose” and “primary secular effect” prongs of Lemon. The court then saw fit to rely on statements in several dissenting Supreme Court opinions. Even Justice Stevens in his Van Orden v. Perry dissent believed that “In God We Trust” was ok as “an appendage to a common article of commerce” (not quite sure what that means). And Justice Brennan once stated in dissent that “In God We Trust” did not violate the Constitution because the words have lost “any significant religious content” through “rote repetition.” That, too, was claimed by the panel to be persuasive.

The plaintiffs also brought free exercise and RFRA claims. These were rejected as well.

More on Christianity and the Problem of Church and State

Apropos of my earlier post on Plucknett’s fine volume and the problem of church andSanjiang Church state is this difficult story in today’s New York Times about the Chinese government’s decision to bulldoze the beautiful and imposing Sanjian Church in Wenzhou. You can see the pile of ash and rubble that remains. The ostensible secular purpose offered by the government was a violation of a zoning ordinance. But the story reports that the Chinese government has issued demolition orders and orders for the removal of crosses for dozens of other Christian churches as part of a concerted, but non-public, strategy to suppress Christianity and its “excessive religious sites” and “overly popular” religious activities.

Also of interest is that Christianity in particular seems to be a problem for the government. Government officials have been publicly praising other religions including Buddhism and Confucianism–a dramatic change in official policy–in an effort to augment the growing inter-religious tensions. But “Christianity,” the story reports, “is seen by some in the government as a colonial vestige at odds with the party’s control of political and social life.”

Christianity and the Rise of “the Problem of Church and State”

I have begun reading the British legal historian Theodore F.T. Plucknett’s massive work, A Concise History of the Common Law, a wonderful treatment of the subject written in the mid-twentieth century. Here’s something from early in the book:

While imperial Rome was slowly declining, Christianity was entering on a period of remarkable growth. At first it was hardly noticed among the numerous new cults which were fashionable importations from the Near East, some of which were extremely popular. After being ignored, it was later persecuted, then under the great Constantine it was at last tolerated (324). So far, the established “Hellenistic” religion had been considered as an official department, and its priests as civil servants. Attempts had been made to incorporate with it the religions of Isis, Mithras, Christ, and others, on a similar footing, combining all the known gods in one vast polytheism, whose cult was to be maintained and controlled by the State. It was soon evident, however, that Christianity would not accept this inferior position. Although some things were Caesar’s, others were God’s, and from this fundamental conflict arose the problem of Church and State, which has lasted from Constantine’s day to our own. The controversy took a variety of forms in the course of the succeeding sixteen centuries. Stated in its broadest and most general terms, it means that many earnest thinkers find it impossible to accept the State as the highest form of human society, and that they recognize some situations in which they would feel bound to obey some other duty than that imposed by the State. On the continent it lay at the root of the long conflict between the Empire and the papacy; in England it took such varied forms as the conflict with Thomas Becket, the discussion in Bracton as to the real position of the King (who is subject, he says, to God “and the law”), the Puritan revolution–and may even be traced in the American constitutions, for the modern attempts to curb the power of the State by means of constitutional limitations are the result of the same distrust of the State as was expressed in former days in the conflict between religion and the secular power.

It was also during the reign of Constantine that the great Council of Nicaea was held (325), attended by almost three hundred bishops from all parts of the world. Besides settling many fundamental matters of doctrine, this council gave an imposing demonstration of the world-wide organisation of the Church, and from this point onwards that organisation grew increasingly effective, and the Church became more and more a world power. As a result, the Empire had to admit the presence first of a potent ally, and soon of a vigorous rival.

The Nicene canons are the earliest code that can be called canon law of the whole Church, and at least in the West they enjoyed something like the same finality in the realm of discipline that the Nicene Creed enjoyed in the realm of doctrine. [citing C.H. Turner, Cambridge Mediaeval History]

Indeed, while the organization of the Empire was slowly breaking down, that of the Church was steadily growing, with the result that the Church soon offered a career comparable to, if not better than, that afforded by the State to men of ability who felt called to public life. Some specialised in the study of theology; others took up the work of creating the great body of canon law which for a long time was to perpetuate the old Roman ideal of universal law. With all this, the growth of the episcopate, and particularly of the papacy, was to give a new aspect to the ancient city of Rome, and slowly, but certainly, the Empire ruled from Rome was being replaced for many purposes by Christendom ruled by the papacy. [4-5]

The Weekly Five

This week’s selections include a pair of reviews of two recent books, a piece on implementing religious law, an overview of the law of religious freedom in China, and a discussion of European anti-ritual-slaughtering laws.

1. Frederick Schauer (UVA Law), On the Utility of Religious Toleration: This review of Brian Leiter’s Why Tolerate Religion? accepts Professor Leiter’s deontically-grounded claims for religion’s non-specialness but challenges the claims grounded in utilitarianism, arguing that a stronger version of utilitarianism would accept unprincipled and even irrational distinctions as potentially welfare-maximizing.

2. Paul Horwitz (Alabama Law), ‘A Troublesome Right’: The ‘Law’ in Dworkin’s Treatment of Religion: A review of the late Ronald Dworkin’s Religion Without God, in which Professor Horwitz takes special aim at Professor Dworkin’s legal demotion of the right of religious freedom. He writes that the “gloss of abstraction” in Dworkin’s arguments results in substantial overstatements of the problems that Dworkin identifies.

3. Patrick McKinley Brennan (Villanova Law), Implementing Religious Law in Modern Nation-States: Reflections from the Catholic Tradition: Professor Brennan describes the Catholic natural law view of law, religion, and justice, and explores some of the incompatibilities of that view with the American constitutional framework.

4. Ping Xiong (University of South Australia), Freedom of Religion in China Under the Current Legal Framework and Foreign Religious Bodies: A very helpful introduction to the landscape of religious freedom in China. The regime of religious freedom is explored from the perspective of the major religions practiced in China–Taoism, Buddhism, Christianity, Islam, and Confucianism–as well as smaller religious groups.

5. Robert J. Delahunty (University of St. Thomas School of Law), Does Animal Welfare Trump Religious Liberty? The Danish Ban on Kosher and Halal Butchering: Professor Delahunty explores the history of European “hygienic” and “humane” laws that ban ritual slaughtering practices. He concludes that these laws do little or nothing to promote animal welfare and probably are motivated by European unease with the growing Muslim population.

Dane on Legislative Prayer

Former CLR Forum guest Perry Dane has a typically thoughtful post about the legislative prayer decision. The post offers a distinctively Brennan-esque, separationist perspective, with two moving parts: legislative prayer should be unconstitutional for separationist reasons; but if it is to be constitutional, legislative prayer should not be policed by the Court for ecumenical sufficiency. A bit from the second half of the argument:

To forcefully strip legislative prayer of its rootedness in particular faith traditions or to demand a compulsive even-handedness in rotations of chaplains would only further trivialize and politicize the act.

That’s not to say that public prayers should be “sectarian.”  Quite the contrary.  Religious (and even sympathetic non-religious) folk can find ways to pray together. And the wisest religious traditions demand sensitivity to other faiths (and persons of no faith) in the public arena. But if the Constitution is to allow official public prayer (which, as I’ve said, it shouldn’t), then it has no business demanding such wisdom as the price of admission to the halls of government.

Berger on Town of Greece and Praying While Smoking

The inimitable Peter Berger has this column on Town of Greece v. Galloway. Here’s the cleverly charming beginning:

In a Benedictine monastery there is a chain smoker. He smokes all the time. He smokes during work, during meals, even during communal prayers. He says that he would become seriously ill if he stopped. The abbot is solicitous about the smoker’s addiction, but this has become such a scandal that he feels constrained to consult the relevant authorities in Rome. He asks, “May one smoke while one prays?” Rome doesn’t act quickly, but after a few months the answer comes back –“No, one may not.” It so happens that a Jesuit is visiting on the day the reply from Rome arrives and the abbot tells him the story. The Jesuit thinks for a moment, and says: “You asked Rome the wrong question. What you should have asked—May one pray while one smokes?”

One could say that, in a decision of May 5, 2014, the Supreme Court of the United States was guided by Jesuit logic.