Movsesian at William & Mary Law Last Week

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Thanks to Alan Meese and Nate Oman for hosting me last week at a symposium on Nate’s important new book, “The Dignity of Commerce.” (That’s me, above, interacting with the author). I learned a great deal. Nate has been a guest blogger here at the Law and Religion Forum, and it was good to catch up with him and with Alan, and to make some new friends. The symposium will appear later this year.

Blasphemy in Denmark

At the First Things site today, I have a post on the current blasphemy controversy in Denmark, which Marc discussed here last week. Prosecutors have brought a blasphemy charge against a man who posted a video of himself burning a copy of the Quran. I don’t favor Quran burning, of course. But I ask why a secular, progressive country like Denmark would bring a blasphemy prosecution in 2017:

The ironies abound. Blasphemy prosecutions are not so unusual in Muslim-majority countries, where they often serve as pretexts for the persecution of Christians and other religious minorities. In fact, this month marks the sixth anniversary of the murder of Shahbaz Bhatti, a Christian Pakistani politician who had criticized that country’s blasphemy laws; his murderers called Bhatti “a known blasphemer.” But blasphemy prosecutions are vanishingly rare in the West. In America, the Supreme Court ruled blasphemy laws unconstitutional in 1952. Most European countries have abolished their blasphemy laws; where such laws continue to exist, they are dead letters.

Moreover, Western countries have made opposing blasphemy laws a major international human rights cause. At the U.N. Human Rights Council, America and its European allies have objected strenuously to so-called “Defamation of Religion” resolutions introduced in recent years by Muslim-majority countries, on the ground that such resolutions encourage local blasphemy laws and stifle free expression. Since 2011, American and European diplomats have convinced proponents to accept a compromise resolution, one that condemns discrimination and the incitement of violence against persons on the basis of religion—a resolution protecting believers, rather than beliefs as such.

For a European government to bring a blasphemy prosecution in 2017, therefore, is incongruous, to say the least. And Denmark is one of the least religious places on the planet. True, it has a state church, to which the large majority of Danes belong. But that is mostly a formal thing. Religious belief and observance are quite low. Fewer than a third of Danes say they believe in God; only about 2 percent go to church each Sunday. And Danish authorities have turned a blind eye to blasphemy in the past. In 1997, for example, someone burned a copy of the Bible on a news broadcast on state television. The government did not file charges.

Why is it legal in Denmark to burn the Bible but not the Quran? You can read the whole post here.

My Take on Gorsuch: A Solid Conservative

At the First Things site today, I reflect on this week’s nomination of Judge Neil Gorsuch to serve on the Supreme Court. In my opinion, he’s likely to be a solid conservative–the sort of judge that any Republican administration in the last generation could have nominated. Here’s an excerpt:

He holds to originalism in constitutional interpretation and textualism in statutory interpretation—two positions that have been the foundation for judicial conservatism since the 1980s. His record in religion cases is reassuring. On the free exercise side, he has shown sensitivity to the right of believers to claim exemptions from laws that substantially burden their religious exercise. And he has done so not only in the famous Hobby Lobby case, in which the claimants were conservative Christians, but in a case involving a Native American prisoner. In fact, his opinion in the latter case, Youngbear v. Lambert, is a sophisticated, engaging essay on the law of religious exemptions generally. Gorsuch is a clear and accessible writer—something one cannot say for many judges.

His opinions on the Establishment Clause side, less well known, are also encouraging. Judge Gorsuch has signaled his opposition to the thirty-year-old “endorsement test,” which forbids state-sponsored displays that a reasonable observer would understand as an endorsement of religion. The test is famously malleable, and Judge Gorsuch has criticized the way his own circuit, in particular, has misinterpreted it to forbid some traditional public displays—including, notably, a Ten Commandments monument. His apparent dissatisfaction with the endorsement test bodes well for restoring a more sane Establishment Clause jurisprudence that honors American traditions.

You can read the whole post here.

 

It’s Not a Muslim Ban

This morning at the Law and Liberty site, I have a post on the controversy surrounding President Trump’s executive order on immigration. I criticize the way the order was prepared and released, but also the unhinged reaction to it.

Here’s an excerpt:

And yet, the unhinged reaction to the order also doesn’t help. Don’t believe the hashtags: the order does not ban Muslim immigration to the US or impose a religious test for admission. The language is quite technical, and there are complications I lack space to address here. But, basically, the order does two things. First, it places a temporary ban on the admission of refugees from anywhere in the world, for 120 days, while officials review our current procedures to determine whether further security measures are necessary. After this 120-day period, the government will resume admitting refugees, up to 50,000 this year, under whatever new procedures officials devise.

The government will also be authorized, after 120 days, to give priority to refugees who are religious minorities and subject to persecution in their home countries. In an interview, President Trump indicated that he had Christians in mind. But by its terms the order extends to other religious minorities as well. In other words, it could cover Yazidi refugees from Iraq and Ahmadi Muslim refugees from Pakistan. It is not a unique preference for Christians—an issue I will address more in a moment.

You can read the whole post here.

 

On the Virginia Statute for Religious Freedom

At the Library of Law and Liberty this morning, I have a post on the Virginia Statute of Religious Freedom of 1786, the anniversary of which America marked last week. Among other things, I describe how Jefferson deftly combines Enlightenment and Evangelical Christian arguments to support religious freedom. Here’s a sample:

It’s fascinating, therefore, to go back and read the statute in its entirety. Three things stand out. First is the skillful way Jefferson combines two dramatically different strands of thought to justify religious freedom—Enlightenment Liberalism and Evangelical Christianity. (As a good lawyer, Jefferson knew how to make an argument in the alternative). “Truth is great and will prevail if left to herself,” the preamble declares; “she is the proper and sufficient antagonist to error.” Through free debate, people could reason their way to truth, in religion as in other matters. No justification existed, therefore, for prohibiting people from expressing their religious opinions and trying to persuade others.

This Enlightenment defense of free inquiry was not likely to convince everyone, though, so Jefferson added an argument from Evangelical Christianity as well. Religious freedom was the plan of “the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.” Establishments had resulted in “false religions over the greatest part of the world,” including, presumably, Catholicism and Islam. The point was clear: a good Evangelical Christian should support religious freedom, for Christianity’s sake. This combination of Evangelical and Enlightenment reasoning is a major theme in American church-state law, and it’s interesting to see how far back it goes.

That Jefferson, he was one shrewd lawyer. You can read the whole post here.

Luther’s Endurance

This morning at the Library of Law and Liberty site, I review the Morgan Library’s recent exhibit on the 500th anniversary of the 95 Theses, Martin Luther’s questions about Church teaching that sparked the Protestant Reformation. Although the exhibition doesn’t take sides, expressly, it’s pretty clear that Luther is the hero of their story — and I explain why:

Why does the Morgan favor Luther in his debate with the Church? It’s not because the management is Lutheran. It’s because, whatever the debate within Christianity on Faith versus Works—and both Lutheran and Catholic theology show more nuance than people typically understand—in the secular world, Luther has come to stand for the overthrow of traditional authority in favor of individual subjectivity. We typically mean something very different by “conscience” than he did in that statement at Worms, but his emphasis on individual conviction rather than received wisdom anticipates the preeminence of personal authenticity as a social and political value. That’s why Luther continues to appeal to our wider culture today.

You can read the whole post here.

How the US Hurt Mideast Christians

This month, I’m guest blogging at the Library of Law and Liberty. I’ve begun with a series of posts on the persecution of Christians in the Mideast. This persecution has many causes, including social attitudes formed by centuries of existence as dhimmis. In today’s post, though, I argue that the West bears some responsibility as well, including the US. Here’s a sample:

Finally, there are the recent actions of the United States. The Bush Administration’s invasion of Iraq in 2003, coupled with the precipitous withdrawal of American troops under the Obama Administration, has been a disaster for local Christians. The invasion exposed Christians to reprisals from Islamists; the withdrawal of troops allowed the reprisals to take place on a wide scale. In Syria, the Obama Administration’s signal that it would support the overthrow of Assad—recall the red line in the summer of 2013—encouraged a rebellion; its failure to back up its words with action has led to slaughter. This is not to say the US should have intervened militarily in Syria. But it shouldn’t have encouraged a rebellion it was not prepared to back, either.

You can read the whole post here.

France: Guerres de Noel

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A Municipal  Christmas Creche in Nantes (Guardian)

 

At the First Things site, I have an essay (“Crèche Clash“) on the continuing Christmas Wars in France. The Conseil d’Etat, France’s highest administrative court, recently ruled on the legality of the Nativity scenes that many French municipalities display every December. Although it didn’t cite any American cases, the French court relied on the same test American courts have developed to determine the constitutionality of Christmas displays in this country, the so-called endorsement test:

The Conseil begins by stating that laïcité forbids “any display by public authorities of signs and symbols showing a public recognition or a preference for a given religion.” A Christmas crèche poses a difficult case. Although a crèche can convey a religious message, it also has a non-religious meaning as a familiar seasonal decoration. One message is forbidden for the state, the other acceptable. Display of a crèche by a public authority is therefore legal, the Conseil declares, “only” where the crèche “has a cultural, artistic or festive purpose, but not if it expresses” recognition of or preference for a religion. To determine the meaning of a display, one must consider the particular circumstances, “including the existence or the absence of local traditions and the location of the display.”

Readers familiar with the American case law will recognize this as a version of the “endorsement test” our own courts use to evaluate the constitutionality of public nativity scenes. Under the test, first proposed by Supreme Court Justice Sandra O’Connor in a 1984 case from Pawtucket, Rhode Island, a display violates the Establishment Clause if it amounts to an official endorsement of religion, that is, if it suggests that the government approves a particular religious message (or disapproves such a message, though that issue does not regularly arise). Official endorsements make non-adherents feel like second-class citizens, the reasoning goes—like less than full participants in the political community. As a consequence, such endorsements violate the Constitution.

In the essay, I argue that the French version of the endorsement test turns out to be just as confusing as the American, with many of the same deficiencies–including its tendency to outlaw traditional features of public life. You can read the essay here.

The Revival of Nationalism in 2016

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At the Library of Law and Liberty site this morning, I have a post on the elections of 2016. Across the West this year, the unthinkable has occurred again and again: Brexit; the election of Donald Trump; the popularity of the National Front in France and Euroskeptic parties like Lega Nord and the Five Star Movement in Italy. What explains these developments?

Although traditional conservatism, including religious conservatism, has had a role, I argue that the most important factor has been the revival of nationalism across the West:

In short, although traditional conservatism has been on the winning side in recent political contests, it has been a junior partner in a larger project: the revival of nationalism. Nationalism is a complicated phenomenon that takes different forms. A good working definition is the following: a political program that unites a people with a common ancestry or culture together with a sovereign state. Nationalism rejects attempts to subordinate the state to outside governance. Often, it seeks to protect local traditions from being diluted by an aggressive global culture. In its present iteration, it sets the nation-state against supranational, liberal regimes like the EU or NAFTA, and local customs and traditions, including religious traditions, against alien, outside trends….

One can easily perceive nationalism’s role in the politics of 2016. Repeatedly, the side advocating a recovery of sovereignty from supranational bodies and a limit on immigration prevailed. In the Brexit campaign, the “Leave” supporters argued that Britain must take back control from EU bureaucrats and assert authority over its borders. Here, Trump famously called for withdrawal from the proposed Trans-Pacific Partnership treaty and for renegotiation of other free-trade agreements, including NAFTA; for a wall to keep out Mexican immigrants; and for a temporary ban on Muslims entering the country.

In France, the National Front’s Marine Le Pen has proudly declared that “the time of the nation state is back” and calls for restrictions on immigration and an end to multiculturalism. She maintains that the EU should be reconceived as a loose collection of sovereign states and that France should withdraw from the common currency. The ideology of Italy’s Euroskeptics is more fluid; nationalism is weaker in Italy, too. But important elements within Lega Nord and the Five Star Movement express skepticism about the EU and seek to withdraw from the euro, and also disfavor allowing large numbers of immigrants into the country.

The rise of nationalism upsets the conventional wisdom, which for some time has been predicting its demise. But, in times of crisis, people return to the nation state. I explain more here.

No Protestants on the Court

At the Liberty Law site this morning, I have a post on the absence of Protestant Christians on the Supreme Court. In historical terms, the lack of Protestants is a striking anomaly–the large majority of the 112 men and women who have sat as Justices over time has been Protestant. What explains the current situation, and might it have an effect on American law?

With regard to the first question, I argue that the absence of Protestants as to to with larger social and cultural questions. With respect to the second question, I argue, it depends on what sort of Protestant, and what sort of legal issues, one has in mind:

If Reno is right about the transformation of Mainline Protestantism into a post-Protestant WASP ethos, then it shouldn’t matter whether actual Mainline Protestants are on the Court. Given the composition of the legal profession, most people likely to be appointed to the Court will have post-Protestant WASP values, whatever their particular faith tradition. Recall my example of the Catholic or Orthodox 1L at Harvard. Post-Protestant WASP values, in other words, will be represented even without actual Mainline Protestants.

On the other hand, the absence of Evangelicals might make a difference to the Court’s decisions, at least with regard to some issues—for example, questions regarding religious liberty. Notwithstanding the Supreme Court’s 1990 decision in Employment Division v. Smith, which abandoned the test for constitutional purposes, most hot-button religious liberty cases nowadays turn on some version of the “compelling interest” test. This test holds that the government cannot substantially burden a person’s exercise of religion unless it has a compelling interest for doing so and has chosen the least restrictive means. This is the test contained in the Religious Freedom Restoration Act (RFRA), for example—the statute at issue in the Court’s recent decisions regarding the contraception mandate in Obamacare.

The compelling interest test requires many judgment calls: What is a “substantial burden” on religious exercise? What is a “compelling interest”? Is there a “less restrictive means” available? (In fact, it was the necessity of such intuitive judgments that led the Smith Court to abandon the compelling interest test in the constitutional context). And judgment calls depend on the intuitions of the people doing the judging. An Evangelical Christian likely would have different intuitions about these matters than a post-Protestant WASP who views religions as more or less interchangeable, and anyway not all that important. Someone who views religion as a vital guide to behavior might be more skeptical of claims that a rule does not “substantially burden” religious exercise, or that the government has offered a “compelling” interest to justify the intrusion.

In short, on at least some questions, the religious background of the justices could well make a difference, and the absence of Evangelicals on the Court affect the course of the law. You can read the whole post here.

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