Posted on by Mark Movsesian

Albert on the Establishment Clause and the Separation of Powers

Richard Albert (Boston College) has posted a new article, The Separation of Higher Powers, on SSRN. The abstract follows. — MLM

The very first words of the very first amendment to the United States Constitution continue to frustrate the quest for constitutional clarity. The Bill of Right’s Establishment Clause commands in plain terms that “Congress shall make no law respecting an establishment of religion,” but the legal interpretation and political implications of the Clause remain contested today as ever before. What may government require of religion? What may religion demand of government? How much of its independence must religion cede to government? And how closely may government collaborate with religion? These enduring questions admit of no definitive answers, at least not without an organizing logic that can bring coherence and purpose to the Establishment Clause. In this Article, I suggest that the concept of the separation of powers can help do just that. Using separation of powers theory, I construct a framework for clarifying the meaning of the Establishment Clause, giving political actors guidance for crafting policy pursuant to it, and making predictable its interpretation in courts.

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Schiltz on Exposing the Cracks in the Foundations of Disability Law

Elizabeth Rose Schiltz (University of St. Thomas School of Law) has posted Exposing the Cracks in the Foundations of Disability Law. This paper was presented at the September 9, 2011 Law & Contemporary Problems symposium, “Theological Argument in Law: Engaging with Stanley Hauerwas,” held at Duke Law School. The abstract follows. – ARH

The theologian Stanley Hauerwas has described people with intellectual disabilities as “the crack I desperately needed to give concreteness to my critique of modernity. No group exposes the pretensions of the humanism that shapes the practices of modernity more thoroughly than the mentally handicapped.” Indeed, modern practices with respect to the mentally handicapped are undeniably puzzling. On the one hand, advances in the ability to prenatally diagnose genetic conditions that cause mental retardation are widely heralded and enthusiastically embraced, as evidenced by the declining numbers of children born with Down Syndrome worldwide, despite the fact that advancing maternal ages should be resulting in an increase in those numbers. On the other hand, laws that express a strong commitment to the equal treatment of our fellow citizens with disabilities continue to be enacted – from the Individuals with Disabilities Education Act in 1975, ensuring the education of children with disabilities in our public schools, to the Americans with Disabilities Act in 1990, prohibiting discrimination against people with disabilities in public accommodations and employment, to the Genetic Information Nondiscrimination Act in 2008, prohibiting employers or health insurers from discriminating based on information from genetic tests.

Hauerwas diagnoses these puzzling inconsistencies in contemporary society’s attitudes toward the disabled as evidence of the flaws of modern humanism. Humanism’s emphasis on rationality and capacity for reason is the most obvious target of any critique focused on people with intellectual disabilities, whose capacity for reason is, by definition, compromised to some degree. Read more

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Hamoudi on The Surprising Irrelevance of Islamic Bankruptcy

Haider Ala Hamoudi (University of Pittsburgh – School of Law) has posted The Surprising Irrelevance of Islamic Bankruptcy.  This paper was first presented on September 16, 2011, at the “Religion and Bankruptcy: Perspectives Thereon and Treatment Therein” Symposium, held at St. John’s School of Law, and co-hosted by the Center for Law and Religion.  The abstract follows. – ARH

By any standard of logic, the influence of the shari’a should be far more relevant in the area of bankruptcy than it is. Understanding the sources of the broad marginalization of shari’a as it relates to modern bankruptcy law in the Muslim world tells us much about the sharply limited legal scope of Islamic revivalism as concerns economic and commercial matters and perhaps even a little bit about Islamism’s limited legal ambitions more generally.

Posted on by Mark Movsesian · 1 Comment

Christianity and Capital Markets

During the financial crisis of 2008, a cartoon appeared in a British newspaper showing two bankers earnestly puzzling over something. “I know what a ‘hazard’ is,” one says to the other, “but what does ‘moral’ mean?” The idea that capital markets are amoral — indeed, that they are immoral — is a standard critique. In a recent paper for a meeting of the American Academy of Religion, Seth Payne argues that capital markets are, in fact, a force for good that Christians and other people of faith should use “to amplify their moral, ecclesiastical, humanitarian, and pastoral duties.” The abstract follows. — MLM (Hat tip: ProfessorBainbridge.com).

The financial turmoil of the past several years has caused many to question the integrity, stability, and very purpose of financial systems which, in today’s world, represent a unique blend of primarily capitalism but also aspects of socialism and collectivism as well. A key factor contributing to this sustained period of economic upheaval has been the uncertainty surrounding capital markets – the fuel that powers all modern economies. Capital markets have, in the minds of many, come to represent the embodiment of greed, unrestrained egoism, and exploitation of the vulnerable – conceptions at complete odds with the central values of social justice as set forth in both Christian and Jewish primary sources: caring for the poor, protecting the weak, and the promotion of justice.

In this paper I argue that capital markets, rather than being a means for the powerful to exploit the weak, have in fact become a force for social good in the aggregate. Indeed capital markets are, in fact, a social contract and as such must be governed by a set of normative ethical principles – both self imposed, and imposed by government regulation. I explore the ethical difficulties that have led to the systemic problems and market failures that lead to not only this current financial crisis, but literally all financial crises over the past eight hundred years. Capital markets, left to their own devices and without both self and governmental oversight, quickly become hotbeds of manipulation and exploitation. In order for markets to function properly, principles of basic fairness must become normative. It is when capital markets become unfair and unjust, that they fail. Thus, these markets must be structured in such a way as to 1) promote Rawl’s “Justice as Fairness” principle and 2) align the interests of market participants to produce universally beneficial market efficiency and stability.

Finally, I propose concrete ways in which the power of capital markets may be harnessed to promote the central moral values of Christian tradition and be used by people of faith to promote the ideals of social justice.


Posted on by Marc O. DeGirolami

Magarian on Justice Stevens’s Religion Clause Jurisprudence

Gregory P. Magarian (Wash. U. St. Louis, and a former law clerk to Justice John Paul Stevens) has posted Justice Stevens, Religion, and Civil Society.  The abstract follows.  — MOD

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his thirty-five years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he opposed exempting religious believers from laws that interfered with religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with hostility toward religion. This Article debunks that conventional analysis and offers a new explanation of Justice Stevens‘s religion jurisprudence. The Article shows that Justice Stevens took the same approach to constitutional cases about churches that he took to constitutional cases about other powerful institutions of civil society, including the major political parties and voluntary membership associations. Justice Stevens resisted these varied civil society institutions‘ demands for increased constitutional autonomy, based on two persistent concerns. First, Justice Stevens sought to constrain civil society institutions‘ coercive power over individuals. Second, he viewed civil society institutions‘ tendencies toward factionalism as a threat to national unity. Justice Stevens did not consider religion a special object of constitutional concern, let alone a special object of disdain. This descriptive insight permits a fresh normative assessment of Justice Stevens‘s religion jurisprudence. Justice Stevens‘s anti-coercion principle provided the driving force behind his Establishment Clause opinions. The Article finds the anti-coercion principle normatively compelling in the abstract and well adapted to Establishment Clause disputes. In contrast, Justice Stevens‘s anti-factionalism principle drove his opinions about free exercise accommodations. The Article finds the anti-factionalism principle normatively problematic in general and particularly ill-suited to the problem of free exercise accommodations.

Posted on by Mark Movsesian

Kahn on the Trial of Geert Wilders

In 2009, a Dutch court decided to prosecute right-wing politician Geert Wilders for hate speech. Wilders had made several highly critical comments about Islam and had produced a film, Fitna, that explored Islamist violence in a way that some people allege incites hatred against Muslims.  In June 2011, the court acquitted Wilders of all charges. Robert Kahn (St. Thomas – Minnesota)  has posted a piece, The Acquittal of Geert Wilders and Dutch Political Culture, that discusses Wilder’s case and its implications for multiculturalism. The abstract follows. — MLM

The June 23, 2011 acquittal of Geert Wilders has been viewed as a victory for freedom of speech over multiculturalism. While containing an element of truth, this framing has limitations. First, even as Wilders’ “triumphed” over multiculturalism he still cast himself as a champion of Dutch tolerance. Second, Wilders’ victory was a narrow one. The court, while acquitting, noted that Wilders went right to the line of permissible speech. Wilders acquittal does not necessarily portend an end of Dutch exceptionalism or its hate speech laws. Instead, the trial was noteworthy for (i) its obsession with the Nazi past, (ii) its debate over the rights and duties of a politician, and (iii) the conflict that arose between one of Wilders’ witnesses and an appeals court judge who in 2009 ordered the prosecutor to bring charges against Wilders.

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LDS in the USA: Its Theology of Gender and the Problem of Same-Sex Marriage

Joseph Smith (1805–1844)

Seth R. Payne has posted Mormonism and Same-Sex Marriage: Towards a Mormon Theology of Gender.  Payne’s article chronicles the theological tenets that make acceptance of same-sex marriage in the present-day Mormon Church a virtual impossibility—yet he also suggests that there is reason to believe this position, at least in theory, could change.  The piece adds additional context to my post on the recent book, LDS in the USA, which can be viewed here.

Brigham Young (1801–1877)

Most people know that Mormons and the institutionalized Church of Jesus Christ of Latter-Day Saints played an integral role in the passage of Proposition 8, which overturned the ruling of the California Supreme Court’s decision in In re Marriage Cases, 183 P.3d 384 (Cal. 2008) that prohibiting same-sex marriage was a violation of the California and United States’ constitutions.  See Jesse McKinley & Kirk Johnson, Mormons Tipped Scale in Ban on Gay Marriage, N.Y. Times, Nov. 15, 2008, at A1.  Donations by Mormons were instrumental in mobilizing the forces that supported Proposition 8’s passage.  In certain respects, Payne articulates exactly why such donations were crucial to Mormon theological integrity.

For more on Payne’s exposition of these tenets of the Mormon Church, please follow the jump.

Read more

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Pin on the Italian Separation of Church and State

Andrea Pin (University of Padua – Faculty of Law) has posted Public Schools, the Italian Crucifix, and the European Court of Human Rights: The Italian Separation of Church and State. The abstract follows.  – ARH

The recent judgments of the European Court of Human Rights (“ECHR”) with regard to the presence of the Catholic symbol of the crucifix in Italian public schools are just the latest episodes of the ongoing juridical and political struggle for the secularization of the Italian state. This debate involves the interpretation and the enactment of the Italian Constitution as well as the  political and cultural trends that shape the Italian public debate about the public role of religion.

The decisions of the ECHR, which operates in Strasbourg, pushed the debate further: from the interpretation of the Italian Constitution to the respect for international treaties. In the first degree, the Court found Italy’s policy of displaying crucifixes in public schools violated Article 9 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights”) that protects the right to freedom of religion. The popular and political criticisms of the judgment were immediate and forceful throughout Italian public discourse, because a majority in Italian society supports the presence of the crucifix in public schools. Read more

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Albert on the Constitutional Politics of the Establishment Clause

Richard Albert (Boston College Law School) has posted The Constitutional Politics of the Establishment Clause. This article is based on his remarks at “The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?” a symposium recently held at Duquesne University School of Law.  Here is an earlier post on that Symposium.   The abstract of Albert’s article follows. – ARH

In these reflections presented at a Symposium hosted by Duquesne University School of Law on “The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?” I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court’s recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts – national interdiction, congressional disability, and state sovereignty – may yet again soon hold true if the Supreme Court continues on what appears to be its current path toward de-incorporating the Establishment Clause.

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Gerhard Von Rad: State Interference and Unflappable Belief in Nazi Germany

Bernard M. Levinson, Professor and Berman Family Chair of Jewish Studies & Hebrew Bible at the University of Minnesota Law School, has recently re-posted Reading the Bible in Nazi Germany: Gerhard von Rad’s Attempt to Reclaim the Old Testament for the Church (read the full text here).  The article, which first appeared in Volume 62 of Interpretation: A Journal of Bible and Theology (2008), explores Gerhard von Rad’s (1901–71) staunch adherence to Old Testament studies despite the challenge of Nazi elements within his theological and intellectual milieu.  Levinson also draws a direct connection between von Rad’ s hermeneutic and the historical circumstances under which he worked, painting a powerful portrait of religious and intellectual conviction in defiance of a totalitarian state.

Levinson chronicles National Socialism’s grip on academia and—through control of university theological study—churches.  In 1934, just as von Rad took a post teaching theology at the Friedrich Schiller University of Jena, the Nationalsozialistische Deutsche Arbeiterpartei (“NSDAP”) was taking universities and churches into its ideological grip.  This substantial transformation coincided with—or caused—the ascendance of the Deutsche Christen (“German Christians”) and the more radically nationalist German Christian Church Movement (“KDC”) (I have already written upon the opposition of the protestant, anti-Nazification Bekennende Kirche—“Confessing Church”—here).

The University of Jena was a nucleus of this shift, and its Faculty of Theology became an organ for National Socialist, German Christian ideology.  (It is worth mentioning that, in addition to the Jena Faculty of Theology’s intellectual move toward National Socialism, the Faculty of Medicine became more concretely an NSDAP body:  It used Buchenwald to train students in pathology and its medical-clinics participated in some 14,000 forced sterilizations before 1943.  [See the New York Museum of Jewish Heritage‘s account of the unimaginable atrocities at Buchenwald here.]  The appointment of S.S. Obersturmbannführer Karl Astel as Jena’s rector in 1939 completed the university’s National Socialist transformation.)

For more on Levinson’s description of the Nazification of German protestant churches and von Rad’s resistance to Nazification through his writing and teaching, please follow the jump. Read more