Around the Web this Week

Here is a look at some interesting law and religion items from around the web this week:

Around the Web This Week

Some interesting law and religion news stories from around the web this week:

Loewe, “Of Sacred Lands and Strip Malls”

In September, Rowman & Littlefield released “Of Sacred Lands and Strip Malls: The Battle for Puvungna,” by Ronald Loewe (California State University).  The publisher’s description follows:

A twenty-two acre strip of land—known as Puvungna—lies at the edge of 9780759121607California State University’s Long Beach campus. The land, indisputably owned by California, is also sacred to several Native American tribes. And these twenty-two acres have been the nexus for an acrimonious and costly conflict over control of the land. Of Sacred Lands and Strip Malls tells the story of Puvungna, from the region’s deep history, through years of struggle between activists and campus administration, and ongoing reverberations from the conflict.

As Loewe makes clear, this is a case study with implications beyond a single controversy; at stake in the legal battle is the constitutionality of state codes meant to protect sacred sites from commercial development, and the right of individuals to participate in public hearings. The case also raises questions about the nature of contract archaeology, applied anthropology, and the relative status of ethnography and ethnohistorical research. It is a compelling snapshot of issues surrounding contemporary Native American landscapes.

Thomas: Religious Liberty and Jurisdictional Separation

All this month, we are hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, George Thomas (Claremont McKenna) responds to Muñoz. For other posts in this series, please click here

Phillip Muñoz’s jurisdictional understanding of religious liberty is a powerful and persuasive challenge to the idea that religious liberty demands exemptions from otherwise valid laws. Yet I want to start with an area of agreement between Muñoz’s jurisdictional understanding and Michael McConnell’s exemptionist understanding. Both Muñoz and McConnell begin with religious liberty as a natural right that circumscribes state authority. This is altogether fitting. But it is only half the story. While civil power was a threat to religious liberty, religion itself was the source of civil disorder and religious oppression. Religious liberty was also then, particularly in the hands of James Madison, a way to limit theological authority and bring about civil peace by making religion a matter of individual choice.

Madison wrote to William Bradford, a friend from his days at Princeton, of the “diabolical, hell conceived principle of persecution” that drove those—including the clergy— who used government to enforce religious orthodoxy. Madison’s inalienable right to religious liberty, with its attendant separation of religion from civil government by way of the social compact, would keep the government out of theological disputes; yet it would just as surely prevent religious sects from using the government to enforce their beliefs. Muñoz is thus right to argue that a jurisdictional understanding of religious liberty is no small achievement. While he nods to the Middle East to make this point, he could just as easily turn to America’s history.

As America was debating the religion clauses of the Constitution, England was debating repeal of the Test Acts, which required those who held public office to take communion according to the rites of the Church of England. This was the very sort of religious test for public office that the American Constitution rejected in Article VI. The Test Acts stood alongside the Act of Toleration, so while religious dissenters were tolerated their religious liberty was conditional. They were not able to hold public office until the acts’ repeal in 1828 or to attend Oxford and Cambridge until the Universities Tests Act of 1871. Back when the free exercise clause was being framed, defenders of religious tests saw them as an essential part of having an established church (and included the likes of William Blackstone and Edmund Burke). Madison worried that such “zealous adherents” to religious hierarchy persisted in America. And they did.

A number of state constitutions required religious tests for office and otherwise favored established churches. Indeed, we might best understand the “peace and safety provisions” of state constitutions at issue between Muñoz and McConnell as remnants of Continue reading

Around the Web This Week

Here is a look at some law and religion news stories from around the web this week:

Munoz: Justice Scalia was Right about Religious Free Exercise

All this month, the Law and Religion Forum hosts an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this leadoff post, Muñoz summarizes his argument. For other posts in the series, please click here

“[I]t is proper to keep in mind, that all power in just & free Govts. is derived from Compact . . .”

– James Madison, “On Sovereignty,” (1835)

In the wake of Antonin Scalia’s untimely passing earlier this year, originalists and conservatives praised the Justice’s legacy with one notable exception—his majority opinion in the Free Exercise Clause case, Employment Division of Oregon v. Smith (1990). Stanford Law Professor Michael McConnell identified Smith as his least favorite Scalia opinion. Michael Stokes Paulsen went even further, writing an entire essay about Smith titled, “Justice Scalia’s Worst Opinion.” Calling it a “constitutional disaster,” Paulsen, who holds a Distinguished University Chair at the University of St. Thomas, claimed that Scalia overturned the only interpretation “that makes sense of the decision to have a free exercise clause in the first place” and overthrew the “understanding [that] accords with the founding generation’s understanding of religious freedom as a ‘natural right.’” Even for a “fainthearted” originalist, as Scalia once labeled himself, that is harsh criticism.

I certainly agree that Scalia’s Smith opinion has significant shortcomings (including everything about “hybrid rights”), but from an originalist perspective, its basic conclusion is correct. I’ll go even further: Justice Scalia’s non-exemptionist reading of the Free Exercise Clause is the only construction consistent with the American founders’ natural rights political philosophy and their attendant social compact constitutionalism. As much as I admire the scholarship of McConnell, Paulsen, and other originalist defenders of the Sherbert approach, they are simply wrong when they claim the founders’ natural rights constitutionalism supports a constitutional right to exemptions.

Let me start, however, with a point of agreement. I applaud Professors McConnell and Paulsen for emphasizing the founders’ understanding of religious liberty as a natural right. Recovering the idea of natural rights is essential to contest the idea that the state grants religious liberty and can limit it according to its own interests and preferences.

The founders rejected the language of toleration, because toleration presumes that the state possesses legitimate authority over religious exercises. Instead, the founders recognized that the right of religious liberty inheres in the individual prior to state recognition. Individuals possess a right of Continue reading

Divine Rights and Human Rights

That’s the title of a short piece I have over at Law and Liberty, concerning the transformation of the concept of religious freedom from a hybrid divine/human right to an entirely human right. From the beginning (and do see the Mansfield essay, which is about a good deal more than my own):

The eminent political theorist Harvey Mansfield once wrote that the “religious question” is the crucial one for the modern age, because it concerns the ultimate repository of authority and control. Is it human or is it divine?

“All pre-modern regimes,” said Mansfield, “are more or less based on divine right, on appeal to a principle that says men do not control themselves, that they are controlled by a higher power.”

The modern project, by contrast, is centrally concerned with liberation from that higher power:

“For if men cannot act effectively on their own, they will have to return to divine right, notwithstanding the objections that philosophers might propose. Liberation leads to reform. Liberation is not merely skeptical or negative; it is positive and progressive.”

One of the ways that modernity has answered this challenge is by appropriating “religion” and transforming it from a duty that one owes a creator to a duty that one owes to oneself. In law, one sees this transformation clearly in the standard that is conventionally applied by American courts to requests for religious exemptions from general laws, in which sincerity, individual commitment, or personal conviction are alone sufficient to bring a claim (though they are not sufficient to prevail).

That way of perceiving and understanding religion certainly mitigates certain dangers. It locates authority when it comes to religion solely in the individual, thereby removing all authority from the state. The state is disabled from judging in matters of religion both for epistemic and non-establishment reasons.

Furthermore, religion, as a legal category, becomes accessible to more and more Americans, irrespective of what they may believe. That is precisely what happened in the mid-20th century, as the “duty to the Creator” conception of religion was relaxed in favor of a conception locating all authority over religious questions in the individual conscience.

But this revision may also lead to problems, as religion steadily becomes dissociated from any power external to the individual believer. Law, of course, is responsive to and reflective of more general cultural movements, understandings, and programs, and a short post of this kind is no place to document those changes. But the transformation of religion from a divine phenomenon to a human one was brought home to me in reading the “Religion” section of the New York Times Book Review a few weeks ago. Four books about “religion” were reviewed—all favorably. Every one of them reflected this transformation.

Happy Easter


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To those who celebrate today, a very Happy Easter. Christus resurrexit!

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To all who celebrate, best wishes for a joyful holiday.

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A Happy Easter to all who celebrate. Christ is Risen.

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