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DeGroff on Parental Rights and Public Education

The article, Parental Rights and Public School Curricula: Revisiting Mozert after 20 years, by Professor Eric A. DeGroff of Regent University School of Law, has been reposted to SSRN.  Originally published in 2009, Prof. DeGroff’s article revisits the jurisprudence of balancing parents’ recognized right to direct their childrens’ education and upbringing under the Due Process and Free Exercise clauses against states’ interest in compelling school attendance and determining their own curricula.  See Mozert v. Hawkins County Bd. Educ., 827 F.2d 1058 (6th Cir. 1987).  See also Wisconsin v. Yoder, 406 U.S. 205 (1972).  Detailing recent circuit inconsistency on the issue, DeGroff argues that courts should exercise heightened judicial scrutiny when state curricular requirements conflict with parental rights.

Please see the abstract after the jump. Read more

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Mormons, Evangelicals, and the Republican Primaries

The New York Times reported recently that the budding Republican primaries have sparked Evangelical unease toward Mormonism (an unease reminiscent of the 2008 Republican primary fight).  According to Correspondent Laurie Goodstein, Mitt Romney’s lead after the New Hampshire Primary might flag as the primaries move from the Northeast into South Carolina and Florida—favoring, possibly, Rick Santorum, who is popular among Evangelicals.  Ms. Goodstein cites the anti-Mormon preaching of the Rev. R. Philip Roberts, president of Midwestern Baptist Theological Seminary.  Rev. Roberts advances a view apparently shared by a certain coterie of Evangelicals that Mormonism is a threatening, apostatical religion.  According to Rev. Roberts, a Romney presidency would legitimize Mormonism and pave the way for an increase in Mormon proselytism, something he and like-minded believers fear.

The term “Evangelical” encompasses a broad range of beliefs and attitudes, so any generalization about them is suspect.  But the Pew Forum reports that 15% of white Evangelical Republicans would not vote for Romney simply because of Romney’s Mormonism—a relatively small proportion  in a general election but one more decisive in a primary.  Thus, Ms. Goodstein’s article illustrates just how much a candidate’s religion alone may deter voters, notwithstanding the candidate’s political views.

Update (Jan. 20):  HarperCollins recently released a new biography of Mitt Romney, The Real Romney, by Boston Globe reporters Michael Kranish and Scott Helman that explores the Romney family’s ties to the early Latter Day Saints Movement.

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Writings from the Trento Conference

In December, 2011, Orbis Books published Catholic Theological Ethics, Past, Present, and Future: The Trento Conference.  The volume, edited by James F. Keenan, S.J.—Jesuit priest and professor in theology at Boston College—, collects works arising out of the Trento Conference, convened in Trento, Italy in July, 2010.  (Significantly, Trento was the location of the sixteenth century Council of Trent that launched the Catholic Counter-Reformation.)

The Trento Conference was a massive effort—featuring hundreds of presenters— focused on the encounter between moral theology and issues of contemporary global social policy.  The Conference took a dialogic methodological approach—that is, an approach not drawing strict lines between Catholic orthodoxy and unorthodoxy—to these contemporary social issues, which included “sexuality, authority, . . . gender, sustainability, health, econom[ics], . . . the right to food, [and] family.”  See generally James F. Keenan, S.J., What Happened at Trento 2010?, 72 Theol. Stud. 131, 140, 146 (2011) (interestingly, Theological Studies is a Jesuit journal focused on theological ethics founded in 1940 and edited by the Jesuit scholar and Catholic social thinker, Fr. John Courtney Murray, S.J., from 1942 until his death in 1967).

The contributions in Fr. Keenan’s volume aspire to develop a Catholic moral theology for the twenty first century.  They examine Catholic moral theology’s history, review theological ethics as they exist today, and propose directions Catholic theological ethics might—or should—take in the years to come.  Of particular social policy interest are its explorations of inter-religious dialogue and harmonic co-existence; perspectives from socially, economically, and globally marginalized and/or silenced communities; and ethics in politics.

For Orbis Books’ description of the volume, please follow the jump. Read more

Posted on by Marc O. DeGirolami

Mazzacano on Puritanism and Godliness in the 17th Century

Peter Mazzacano (Osgoode Hall Law School — York University) has posted, “Puritanism, Godliness, and Political Development in Boston and the General Court (1630-1640).”  The abstract follows.

The goal of this article is to examine the degree to which Puritanism influenced early American political culture. That is, how did Puritan values and practices facilitate the development of an exceptional political culture during the formative years of Massachusetts Bay? Utilizing a case-study method of analysis, this article examines the political developments in the General Court and the town of Boston during the decade 1630 to 1640. The research methods used are primarily the writings of leading Puritans, and concomitant town, church, and colonial records. The main finding is that the Puritans paid little heed to notions of democracy, theocracy, oligarchy, or British political traditions; instead, Puritan institutions and practices were based on the primary Puritan ideal of godliness. However, the formative influence of the godly ideal inadvertently reinforced democratic and republican ideals. The conclusion is that the focus on godliness provides a comprehensive and multiple explanations for the course of political developments in early Massachusetts Bay.

Posted on by Marc O. DeGirolami

New Content at the Oxford Journal of Law and Religion

The recently created Oxford Journal of Law and Religion has published a number of brand new pieces, all of which are available for free for a time.  Among these are articles by John Milbank, Javier Martínez-Torrón, Julian Rivers, Christopher McCrudden, Michael Wiener, Nazila Ghanea, Heiner Bielefeldt, Peter Edge, and Jonathan Caplin.  Read them all! 

Here is the description of Milbank’s extremely interesting looking piece, Against Human Rights: Liberty in the Western Tradition.

There is a now longstanding debate concerning the origin of the notion of subjective rights and their definition. Subjective rights as ‘possessive individualism’ should be distinguished from active and claim rights nonetheless objectively grounded. The latter gain ground in the Middle Ages in essential continuity with classical objectivist notions of justice as ‘right order’ that remained influential in practice into the 18th century. The former represents a serious rupture promoted largely in the first place by Franciscan theology well before early modernity. This model is dangerous because it seeks to evade the fundamental question of distribution and does not truly uphold personal dignity. Notions of ‘right order’ and distributive justice safeguard the values of the West, whereas foundational ‘human rights’ tend to erode them.

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An-Na’im on Religious Norms and Family Law

Abdullahi Ahmed An-Na’im (Emory U. School of Law) has posted Religious Norms and Family Law: Is it Legal or Normative Pluralism? The abstract follows.

The core question for this Symposium issue of the Emory International
Law Review is how to mediate the tension between democratic demands for the application of religious norms and human rights concerns, especially
regarding the rights of women and children. Such demands tend to be more
intensely asserted in family matters, perhaps because of the intimacy of family relations and the central role of the family as a marker of identity and agent of children’s socialization. Tensions among the competing bases of public policy and legislation tend to come in sharper focus in pluralistic societies because of the multiplicity of exclusive claims of religious truth and visions of the public good. While using the topic of Sharia in Nigeria as a primary case study, this Symposium also includes discussions of broader theoretical and globally comparative perspectives on the mediation of competing normative claims.

The mediation of such controversies and tensions will continue to be the
primary function of politics in every society, where disputes are routinely
mediated through compromise and accommodation. That politics of mediation includes the possibility of coercive adjudication before state courts when voluntary compliance fails to work. Indeed, the peace, stability, and well-being of every society depend on its ability to mediate and adjudicate such disputes in a peaceful and orderly manner. The more the proponents of each side in a dispute perceive their position as open to negotiation and compromise, the better the prospects for political stability and social justice. This is unlikely to be the case, however, where people believe their positions to be immutable because they are ordained or mandated by God or, in the case of a customary norm, because they are part of the irreducible core of their culture. Read more

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Skeel on Hauerwasian Christian Legal Theory

David A. Skeel Jr. (U. of Penn. Law School) has posted Hauerwasian Christian Legal Theory. The abstract follows.

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like.

After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy.

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Hill on Religious Speech

Jessie Hill (Case Western Reserve University School of Law) has posted (Dis)Owning Religious Speech. The abstract follows.

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality.

The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its own speech a facially religious monument of the Ten Commandments. The second, Salazar v. Buono, which dealt with an establishment clause challenge to a Latin cross in the middle of the Mojave Desert National Preserve, was resolved primarily on the basis of the literal ownership of the religious speech at issue in the case. What both cases have in common is a claim, on one side, that the government has improperly and unconstitutionally excluded one religious group, both literally and metaphorically, and a response, on the other side, that is formulated in the language of ownership, property, and sovereignty.

This Article explores the possible causes and implications of the Court’s recent embrace of property concepts and property rhetoric. It argues that the Court has turned to the language and even the law of property partly as a way of avoiding knotty First Amendment questions. But the rhetoric of property functions on another level, as well. Property rhetoric legitimates and naturalizes the acts of exclusion and subordination inherent in the Court’s decisions. It also gives the appearance of a concrete stake held by some in the religious majority – and a material loss that is incurred – when dominant religious symbols are removed. Ultimately, this article concludes that, for all their flaws, the endorsement test and public forum doctrine, which the Court appears to have temporarily marginalized, are superior approaches to the problem of public displays of religious symbolism.

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Koppelman on Justice Stevens’s Treatment of Religion

Andrew Koppelman (Northwestern University School of Law) has posted an interesting piece, Justice Stevens, Religious Enthusiast. The abstract follows.

It is sometimes alleged that Justice John Paul Stevens is hostile to religion. In fact, however, Justice Stevens espouses a position with religious roots and enthusiastically embraces a distinct conception of religion. This casts doubt on the claim, made in different ways by Eduardo Peñalver and Christopher Eisgruber, that the fundamental concern of his religion clause jurisprudence is equality. At least as important to him is protecting religion from corruption by the state.

Stevens’s position, in order to be consistent, ought to acknowledge, more forthrightly than he does, that it treats religion as a distinctive human good. Any notion of corruption implies a norm or ideal state from which the corruption is a falling off. An invocation of the corruption rationale presupposes that religion is a good thing deserving of protection. To call this view hostile to religion is confused to the point of perversity.

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Circuit Upholds Injunction Against Oklahoma Anti-Sharia Amendment

The United States Court of Appeals for the Tenth Circuit recently affirmed a preliminary injunction against an Oklahoma constitutional amendment forbidding consideration of Sharia by its state courts.  The amendment forbade Oklahoma courts from considering international law, the legal precepts of other nations and cultures, and, expressly, Islamic Sharia.  The amendment did not expressly forbid consideration of any other religion’s legal precepts and, thus, the Tenth Circuit determined it violated the First Amendment’s Establishment Clause because it constituted a government’s disfavoring one religion against others.  See Larson v. Valente, 456 U.S. 228 (1982).  The plaintiff had directed in his will that his estate be probated according to Sharia, a directive that would be unenforceable under the amendment.  The Tenth Circuit did not credit Oklahoma’s argument that the amendment forbade considering all religious law:  Based on the amendment’s text, the court determined that it singled out Islam because, again, the amendment expressly mentioned Sharia only.  On remand, the district court must consider whether to make its preliminary injunction permanent.  Read the case, Awad v. Ziriax, No. 10-6273, 2012 WL 50636 (10th Cir. Jan. 10, 2012), here.  (Note that the provision was jingoistically entitled the “Save our State” amendment.)