Posted on by L&R Forum

Legal Spirits 064: A City Upon a Hill

Ever since President Ronald Reagan popularized the phrase in the 1980s, American leaders have referred to the United States as the “shining city on a hill.” Reagan adapted the phrase from John Winthrop, the 17th century governor of the Massachusetts Bay Colony, who himself took it from the Gospel of Matthew. But the message has changed down the centuries. What began as a warning to carry out faithfully a mission from God became a boast about the United States and the benefits of human freedom. In this episode, Notre Dame historian Don Drakeman explores the original meaning of Winthrop’s text (Don argues it was in part a sales pitch to Puritan investors!) and its meaning today. Both are part of the American tradition: which meaning is the “real” one? Listen in!

Podcast: Play in new window | Download

Subscribe: RSS

Posted on by L&R Forum · 1 Comment

Around the Web

Here are some important law-and-religion stories from around the web:

  • In Roake v. Brumley, a Louisiana federal district court found that Louisiana violated the Free Exercise and Establishment Clauses when it passed a law that required a copy of the Ten Commandments to be posted in every public school classroom in the state. The court reasoned that the Louisiana statute burdened plaintiffs’ sincere religious practices and beliefs and was not neutral toward religion.
  • Oklahoma Governor Kevin Stitt announced the launch of the Oklahoma Office of Faith-Based and Community Initiatives. The new division of state government is meant to act as a point of contact for faith-based and nonprofit organizations, facilitating connections with state services, including creating a repository of state agency programs and recognizing impactful faith-based organizations through partnerships with state agencies.
  • Justin Welby, the Archbishop of Canterbury, announced he would resign after a report revealed that he failed to launch a proper investigation into claims of widespread abuse of boys and young men that occurred decades ago at Christian summer camps.
  • In Bird v DP (a pseudonym), the High Court of Australia found that a Catholic diocese was not vicariously liable for sexual abuse of a young child by a priest from a parish church. The High Court determined that the priest was not employed by the Diocese or engaged by the Diocese as an independent contractor and, therefore, was not an agent of the Diocese.
Posted on by Mark Movsesian

The Lubavitcher Rebbe

Many years ago, I asked a Hasidic Jewish colleague what prevented a mystical movement like his, devoted to ecstatic religious experience, from going off the rails. “Law,” he quickly responded, as someone who had heard the question before, and then he quickly clarified, “Jewish Law.” In my limited experience, Hasidic Jews do indeed view law as important, even for non-Jews like me. I’ve been approached once or twice on the street in New York City by Lubavitcher Jews who, when they learn I’m not Jewish, give me a card with the seven Noahide Laws I am supposed to follow. Had I been Jewish, I think they’d have given me a rather longer list!

A new biography of Menachem Schneerson, the rabbi who led Lubavitcher Hasidism to its greatest successes, no doubt discusses the relationship between law and ecstatic faith in Hasidism. The title (intended provocatively, I assume) is Menachem Mendel Schneerson: Becoming the Messiah, and the publisher is Yale University Press. The author is Ezra Glinter of the Yiddish Book Center. Here’s the description from Yale’s website:

The life and thought of Menachem Mendel Schneerson, one of the most influential—and controversial—rabbis in modern Judaism

The Chabad-Lubavitch movement, one of the world’s best-known Hasidic groups, is driven by the belief that we are on the verge of the messianic age. The man most recognized for the movement’s success is the seventh and last Lubavitcher rebbe, Menachem Mendel Schneerson (1902–1994), believed by many of his followers to be the Messiah.

While hope of redemption has sustained the Jewish people through exile and persecution, it has also upended Jewish society with its apocalyptic and anarchic tendencies. So it is not surprising that Schneerson’s messianic fervor made him one of the most controversial rabbinic leaders of the twentieth century. How did he go from being an ordinary rabbi’s son in the Russian Empire to achieving status as a mystical sage? How did he revitalize a centuries-old Hasidic movement, construct an outreach empire of unprecedented scope, and earn the admiration and condemnation of political, communal, and religious leaders in America and abroad?

Ezra Glinter’s deeply researched account is the first biography of Schneerson to combine a nonpartisan view of his life, work, and impact with an insider’s understanding of the ideology that drove him and that continues to inspire the Chabad-Lubavitch movement today.

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion stories from around the web:

  • An insurance worker from Michigan was awarded a twelve-million dollar judgment against her former employer after she was terminated for refusing to adhere to a private mandatory-vaccination requirement on religious grounds. It seems likely that the insurance company will appeal the judgment, considering the jury’s proportionately-large award of ten-million dollars in punitive damages.
  • In Ex parte Halprin, a Texas appellate court granted a new trial to a Jewish inmate who was sentenced to death following the murder of a police officer responding to the robbery of a Dick’s Sporting Goods. The Court found that the trial judge’s decision was based in large part on antisemetism, citing various out-of-court statements brought by witnesses that showed a clear animus against the defendant’s Jewish heritage.
  • In Union Gospel Mission of Yakima, Wash. v. Ferguson, a Washington federal district court granted a preliminary injunction preventing the state of Washington from applying its antidiscrimination laws to homeless shelters run by a Christian organization. The organization sought to limit its hiring to coreligionists, while the government of Washington claims religious exemptions to antidiscrimination statutes only apply in the context of ministerial hirings.
  • In Wexler v. City of San Diego, a California federal district court rejected the claim of an Orthodox Jewish man that the City of San Diego discriminated against his exercise of religion by allowing his eviction on the Sabbath. The Court found that because the evictors were not state actors, and because state laws in place facilitating the eviction process were neutral and generally applicable, the Plaintiff’s Religious Exercise Claim must fail.
  • In Furqua v. Raak, the Ninth Circuit reinstated the free exericse and equal protection claims of a self-described Christian Israelite who was refused Kosher meals for Passover after the prison chaplain claimed that any such religious requirement for a Christian was erroneous. The Court held that because the Plaintiff was denied an accomodation based on the subjective theological assessment of the chaplain, as opposed to a neutral and valid procedural rule, a reasonable trier of fact might find that he was refused an accomodation on account of religious discrimination.
Posted on by Mark Movsesian

On Wokism and Cultural Contradictions

For about 10 years now, US institutions have aggressively advocated for social justice. As many have observed, the “wokism” behind these efforts is itself a new civil religion, one that promises to succeed in promoting equality where the old civil religion of Americanism failed. A new book from Princeton University Press argues, though, that wokism has actually worked against the socially disadvantaged and marginalized and, ironically, has aided in the rise of a new elite of symbolic capitalists. The book is We Have Never Been Woke: The Cultural Contradictions of a New Elite, by sociologist Musa al-Gharbi (Stony Brook). Looks interesting. Here’s the publisher’s description:

Society has never been more egalitarian—in theory. Prejudice is taboo, and diversity is strongly valued. At the same time, social and economic inequality have exploded. In We Have Never Been Woke, Musa al-Gharbi argues that these trends are closely related, each tied to the rise of a new elite—the symbolic capitalists. In education, media, nonprofits, and beyond, members of this elite work primarily with words, ideas, images, and data, and are very likely to identify as allies of antiracist, feminist, LGBTQ, and other progressive causes. Their dominant ideology is “wokeness” and, while their commitment to equality is sincere, they actively benefit from and perpetuate the inequalities they decry. Indeed, their egalitarian credentials help them gain more power and status, often at the expense of the marginalized and disadvantaged.

We Have Never Been Woke details how the language of social justice is increasingly used to justify this elite—and to portray the losers in the knowledge economy as deserving their lot because they think or say the “wrong” things about race, gender, and sexuality. Al-Gharbi’s point is not to accuse symbolic capitalists of hypocrisy or cynicism. Rather, he examines how their genuine beliefs prevent them from recognizing how they contribute to social problems—or how their actions regularly provoke backlash against the social justice causes they champion.

A powerful critique, We Have Never Been Woke reveals that only by challenging this elite’s self-serving narratives can we hope to address social and economic inequality effectively.

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Loffman v. California, the Ninth Circuit held that California’s exclusion of Jewish schools from special-education programs violates the Constitution’s neutrality requirement. The court found that California’s policy discriminates against religious parents and schools.
  • In Tanvir v. Tanzin, on remand from the Supreme Court, the Second Circuit held that FBI agents were entitled to qualified immunity against RFRA damages claims because the Muslim plaintiffs who were put on a no-fly list had not disclosed their religious objections to serving as informants. The court found that, since the agents had no reason to know their actions violated the plaintiffs’ religious beliefs, they could not be personally liable for damages.
  • Luther Rice College and Seminary filed a complaint saying that Georgia officials are violating the Constitution by excluding its students from state financial aid programs solely because of the college’s religious mission. The lawsuit argues that this exclusion from public benefits violates the Free Exercise Clause by discriminating against religious institutions based on their religious character.
  • President Biden formally apologized for the U.S. Federal Indian Boarding School Policies (1819–1969), which aimed to assimilate Native American children. He acknowledged that over half of these schools were associated with religious organizations, and many of them subjected Native children to severe mistreatment, leaving lasting trauma across generations.
  • The Vatican and China have agreed to extend their Provisional Agreement on the Appointment of Bishops for another four years, marking the third renewal since its initial signing in 2018. This agreement has allowed bishops in China to be appointed with papal consent, fostering full communion with the Pope and resulting in about ten new bishop appointments and formal recognition of previously unrecognized bishops.
Posted on by Mark Movsesian

On Christian Institutionalism in the Early Republic

The proper role of Christianity in American public life has sparked controversy from the beginning. Is the US a Christian nation, and what does that mean, exactly? Or is the US a secular republic? Like France, perhaps? Historian Miles Smith has written a new book, Religion & Republic: Christian America from the Founding to the Civil War, that argues that the true role of Christianity in the early Republic is captured by the phrase “Christian Institutionalism,” in which a public, Protestant Christianity coexisted with official disestablishment. Looks interesting. Here’s the description from the publisher’s website (Davenant):

In recent years, America’s status as a “Christian nation” has become an incredibly vexed question. This is not simply a debate about America’s present, or even its future–it has become a debate about its past. Some want to rewrite America’s history as having always been highly secular in order to ensure a similar future; others seek to reframe the American founding as a continuation of medieval Christendom in the hopes of reviving America’s religious identity today.

In this book, Miles Smith offers a fresh historical reading of America’s status as a Christian nation in the Early Republic era. Defined neither by secularism nor Christendom, America was instead marked by “Christian institutionalism.” Christianity–and Protestantism specifically–was always baked into the American republic’s diplomatic, educational, judicial, and legislative regimes and institutional Christianity in state apparatuses coexisted comfortably with disestablishment from the American Revolution until the beginning of the twenty-first century. 

Any productive discussion about America’s religious present or future must first reckon accurately with its past. With close attention to a wide range of sermons, letters, laws, court cases and more, Religion & Republic offers just such a reckoning

Posted on by Mark Movsesian

A City on a Hill

I’d like to thank the members of our Law & Religion Reading Group who turned out last night for a wonderful discussion of John Winthrop’s famous essay, “A Model of Christian Charity” (1630), the source of the oft-repeated saying that America is “a city on a hill.” A 400-year old Puritan text came to life. Look for a new Legal Spirits podcast on the subject soon!

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • German airline company Lufthansa has been fined $4 million for religious discrimination against a group of Jewish passengers. The incident occurred in 2022, when the passengers were refused boarding because of their failure to wear masks in compliance with the airline’s policy.
  • A Trial Court in Pakistan has granted bail to a Christian woman who was arrested on blasphemy charges brought by her Muslim neighbor.
  • The Texas Supreme Court will soon determine whether Southern Methodist University can cut its ties with the United Methodist Church due to theological differences.
  • A lawsuit has been filed in the Oklahoma Supreme Court challenging the recent requirement to incorporate the Bible into public school curricula.
  • A Washington District Court sentenced a defendant to 11 years in prison because of multiple arson attacks on Jehovah’s Witness institutions.
  • In Pennsylvania, Governor Shapiro signed a new law recognizing Diwali as a state holiday. Diwali is a holiday celebrated by Buddhists, Sikhs, and Hindus and takes place at the end of October.

Posted on by Mark Movsesian · 1 Comment

Constitutional Intolerance

Religious freedom begins with tolerance, but aspirationally goes beyond it, to the full participation of religious minorities in political and legal life. Lately, some European observers think that even tolerance for religious and other minorities is lacking. A book out from Cambridge next month, Constitutional Intolerance: The Fashioning of the Other in Europe’s Constitutional Repertoires, explores the phenomenon. The author is Marietta van der Tol (above), the Alfred Landecker Postdoctoral Fellow at Oxford’s Blavatnik School of Government. Here’s the publisher’s description:

Constitutional Intolerance offers a deeper reflection on intolerance in politics and society today, explaining why minorities face the contestation of their public visibility, and how the law could protect them. Van der Tol refers to historical practices of toleration, distilling from it the category of ‘the other’ to the political community, whose presence, representation, and visibility is not self-evident and is often subject to regulation. The book considers ‘the other’ in the context of modern constitutions, with reference to (ethno)religious, ethnic, and sexual groups. Theoretical chapters engage questions about the time and temporality of otherness, and their ambivalent relationship with (public) space. It offers examples from across the liberal-illiberal divide: France, the Netherlands, Hungary, and Poland. It highlights that vulnerability towards intolerance is inscribed in the structures of the law, and is not merely inherent to either liberalism or illiberalism, as is often inferred.