For all who celebrate today, a very Happy Easter. Qom mašiḥo! Šariro’ith qom!
Even in regular times, religion, law, and state coexist in tense and complex relations. Crises exacerbate the tensions and conflicts, as we saw recently, during the global COVID-19 pandemic. Various religious groups that usually comply with state law disregarded safety rules to conduct religious rituals, endangering adherents and others. Religions and states found themselves in multiple, continuous conflictual situations.
The Journal of Law, Religion and State recently published a special issue tackling such topics on law, religion and COVID-19. All articles are open access till the end of 2021 and can be found here.
At the Liberty Fund site this morning, I have an essay on the scarcity of religious belief among American law professors. I explore the reasons for the scarcity and the effect the scarcity has on American legal education. And I reflect a bit on my own career choices. Here’s an excerpt:
This leads to the third question: what, if anything, should be done? Law schools could do more to seek out and promote candidates who bring religious perspectives to their work and teaching—something that would be entirely consistent with the laudable goal of increasing the representation of ethnic and racial minorities on law school faculties. I doubt such an effort will be forthcoming, though. For the reasons I’ve explained, most law professors see religious perspectives as irrelevant to their work and don’t perceive their absence as a serious problem. This is true even at law schools with religious affiliations—again, with some notable exceptions. Besides, increasing ideological diversity and inclusiveness is not a priority for most law faculties.
This is a pity, because religious perspectives on law would offer much to our students. It is not simply a matter of knowing the historical foundations of our laws or appreciating the critiques of the past. Religious perspectives would offer students insights into current legal controversies. For example, in America today, we are debating whether the state may constitutionally order churches to close during an epidemic. In legal terms, the cases often turn on a balancing test, in which courts weigh the government’s interest in curtailing an epidemic against the burden that closure imposes on the practice of religion. To understand the cases, students need to hear, not only the secular perspectives of most law professors, but the perspectives of people inside faith communities, who can explain why believers find orders to close such an imposition. The comparative absence of religious law professors makes it less likely students will hear both sides.
You can read the whole essay here.
Here are some important law-and-religion news stories from around the web:
- The Third Circuit held that a Pennsylvania prisoner’s free exercise rights were not violated when he was deprived of chaplain visits for ten days, since the prisoner failed to file a request slip in accordance with procedures and did not explain how the lack of visits adversely impacted his practice of religion.
- The U.S. District Court for the District of Maryland issued a preliminary injunction blocking President Trump’s executive order permitting state and local governments to turn away refugees; the suit was filed by the religious non-profit organizations that claim the order violates the Refugee Act of 1980.
- The Eleventh Circuit affirmed the dismissal of a juror in a federal fraud case who stated the Holy Spirit told him the defendant was not guilty; the opinion noted that the juror based his decision on a “perceived divine intervention.”
- Tennessee Governor Bill Lee indicated he would sign a bill to protect adoption agencies that refuse to place a child for foster care or adoption in a home that is in “violation of the agency’s religious convictions or policies.”
- Pope Francis named Francesca Di Giovanni as Secretariat of State, making her the first woman to hold a managerial position in the Vatican.
- The U.S. District Court for the Southern District of Texas held that an attorney has standing to challenge the practice of Texas judge who invites chaplains to hold a prayer service in the courtroom before calling his docket for the day.
- Air Force General John “Jay” Raymond was sworn in by Vice President Mike Pence using a Bible, drawing criticism from the Military Religious Freedom Foundation, which called it a “repulsive display. . .of Christian supremacy.”
- The U.K. Minister of Defense issued an apology to service members whose sexual orientation was outed by military chaplains; the chaplains violated the seal of confession and informed military superiors that military members were lesbian, gay, or bisexual.
Here are some important law-and-religion news stories from around the web:
- The Montana Supreme Court unanimously reversed a $35 million judgment against the Jehovah’s Witnesses, holding that the group’s authorities are not mandatory reporters of child abuse under Montana law.
- A Pennsylvania state court allowed a public nuisance suit alleging that the Roman Catholic Diocese of Pittsburgh failed to report allegations of child abuse to move forward.
- The United States District Court for the Northern District of Indiana denied a motion for summary judgment on a First Amendment retaliation claim brought by an associate professor at Indiana University against the school’s hiring committee, which asserted she was not hired full-time because of her pro-life views.
- The United States District Court for the Eastern District of Virginia declined to dismiss a Title VII claim by a former Director in the United Methodist Church, which maintained she was fired after complaining that she was given more work than her Caucasian co-workers.
- The International Consortium of Investigative Journalists reported that as many as one million Muslims are currently imprisoned in “re-education camps” in China.
- The United States Court of Appeals for the Fifth Circuit affirmed the dismissal of a suit by a Texas firefighter who lost his job in 2016 after refusing to be vaccinated for religious reasons.
- The Brazil Supreme Court overturned a lower court ruling and held that Netflix can continue streaming a comedy depicting Jesus as a homosexual.
I first read some of Charles Péguy’s work in college, in a course taught by the great Rimbaud translator and Proust scholar, Wallace Fowlie. The course considered the thought of several important Catholic intellectuals of the late 19th and early 20th century pre- and inter-War period, focusing on French writers including Belloc, Bernanos, Maurras, and Mauriac (with a little Chesterton thrown in too for some national variety). What we read of Péguy’s writing at the time struck me as having a lot to say about law and politics–particularly on the difference between “mystique” and “politique” and the need for the unifying political leader (like a President, for example) to set himself apart from the ordinary machinations of party politics–and so it’s good to see this new volume to devoted to him. The book is Carnal Spirit: The Revolutions of Charles Péguy (University of Pennsylvania Press), by Matthew W. Maguire.
“It is rare for a thinker of Charles Péguy’s considerable stature and influence to be so neglected in Anglophone scholarship. The neglect may be in part because so much about Péguy is contestable and paradoxical. He strongly opposed the modern historicist drive to reduce writers to their times, yet he was very much a product of philosophical currents swirling through French intellectual life at the turn of the twentieth century. He was a passionate Dreyfusard who converted to Catholicism but was a consistent anticlerical. He was a socialist and an anti-Marxist, and at once a poet, journalist, and philosopher.
Péguy (1873-1914) rose from a modest childhood in provincial France to a position of remarkable prominence in European intellectual life. Before his death in battle in World War I, he founded his own journal in order to publish what he thought most honestly, and urgently, needed to be said about politics, history, philosophy, literature, art, and religion. His writing and life were animated by such questions as: Is it possible to affirm universal human rights and individual freedom and find meaning in a national identity? How should different philosophies and religions relate to one another? What does it mean to be modern?
A voice like Péguy’s, according to Matthew Maguire, reveals the power of the individual to work creatively with the diverse possibilities of a given historical moment. Carnal Spiritexpertly delineates the historical origins of Péguy’s thinking, its unique trajectory, and its unusual position in his own time, and shows the ways in which Péguy anticipated the divisions that continue to trouble us.”
To close out the week’s books, here is a new collection from Routledge on early modern Europe, A Sourcebook of Early Modern European History, edited by Ute Lotz-Heumann (University of Arizona). Many foundational concepts in American church-state relations date from this period, and the book addresses a number of subjects that law and religion scholars will find interesting. Here’s the publisher’s description:
A Sourcebook of Early Modern European History not only provides instructors with primary sources of a manageable length and translated into English, it also offers students a concise explanation of their context and meaning.
By covering different areas of early modern life through the lens of contemporaries’ experiences, this book serves as an introduction to the early modern European world in a way that a narrative history of the period cannot. It is divided into six subject areas, each comprising between twelve and fourteen explicated sources: I. The fabric of communities: Social interaction and social control; II. Social spaces: Experiencing and negotiating encounters; III. Propriety, legitimacy, fidelity: Gender, marriage, and the family; IV. Expressions of faith: Official and popular religion; V. Realms intertwined: Religion and politics; and, VI. Defining the religious other: Identities and conflicts.
Spanning the period from c. 1450 to c. 1750 and including primary sources from across early modern Europe, from Spain to Transylvania, Italy to Iceland, and the European colonies, this book provides an excellent sense of the diversity and complexity of human experience during this time whilst drawing attention to key themes and events of the period. It is ideal for students of early modern history, and of early modern Europe in particular.
To start this week’s books, here is a new biography of Ronald Reagan from the University of Nebraska Press, Ronald Reagan: An Intellectual Biography, by David Byrne (California Baptist University). The book highlights the role that Christianity played in Reagan’s worldview, particularly, the author says, the Christian concept of “a universal kingdom of God.” This puzzles me: Christianity and universalism don’t really go together. I wonder if what the author means is the American tendency, which Tocqueville recognized, to downplay religious difference in the name of equality. The “Kingdom of Freedom” the author describes, in other words, might be a bit more American than Christian. But then, again to cite Tocqueville, Americans have always conflated Christianity and liberty. Readers can judge for themselves. Here’s the description of the book from the publisher’s website:
In this ambitious work David T. Byrne analyzes the ideas that informed Ronald Reagan’s political philosophy and policies. Rather than appraising Reagan’s personal and emotional life, Byrne’s intellectual biography goes one step further; it establishes a rationale for the former president’s motives, discussing how thinkers such as Plato and Adam Smith influenced him. Byrne points to three historical forces that shaped Reagan’s political philosophy: Christian values, particularly the concept of a universal kingdom of God; America’s firm belief in freedom as the greatest political value and its aversion to strong centralized government; and the appeasement era of World War II, which stimulated Reagan’s aggressive and confrontational foreign policy.
Byrne’s account of the fortieth president augments previous work on Reagan with a new model for understanding him. Byrne shows how Reagan took conservatism and the Republican Party in a new direction, departing from the traditional conservatism of Edmund Burke and Russell Kirk. His desire to spread a “Kingdom of Freedom” both at home and abroad changed America’s political landscape forever and inspired a new conservatism that persists to this day.
Here at the Center, we’re very interested in the relationship among law, religion, and tradition. In fact, exploring that relationship is the mission of the Tradition Project, which we started three years ago. So it’s good to see others writing in the area as well. A new collection of essays from Springer, Law, Religion and Tradition (Giles et al., eds) looks very interesting. One of the book’s editors is Tradition Project member Andrea Pin. Here’s the description from the Springer website:
This book explores different theories of law, religion, and tradition, from both a secular and a religious perspective. It reflects on how tradition and change can affect religious and secular legal reasoning, identifying the patterns of legal evolution within religious and secular traditions. It is often taken for granted that, even in law, change corresponds and correlates to progress – that things ought to be changed and they will necessarily get better. There is no doubt that legal changes over the centuries have made it possible to enhance the protection of individual rights and to somewhat contain the possibility of tyranny and despotism. But progress is not everything in law: stability and certainty lie at the core of the rule of law. Similarly, religions and religious laws could not survive without traditions; and yet, they still evolve, and their evolution is often intermingled with secular law. The book asks (and in some ways answers) the questions: What is the role of tradition within religions and religious laws? What is the impact of religious traditions on secular laws, and vice-versa? How are the elements of tradition to be identified? Are they the same within the secular and the religious realm? Do secular law and religious law follow comparable patterns of change? Do their levels of resilience differ significantly? How does the history of religion and law affect changes within religious traditions and legal systems? The overall focus of the book addresses the extent to which tradition plays a role in shaping and re-shaping secular and religious laws, as well as their mutual boundaries.