Posted on by Marc O. DeGirolami

“Religious Freedom, LGBT Rights, and the Prospects for Common Ground” (Wilson & Eskridge, eds.)

I’m pleased to announce the publication of this new volume of essays, Religious Freedom, LGBT Rights, and the Prospects for Common Ground (CUP), edited by Professors RobinReligious Freedom LGBT.jpg Fretwell Wilson and William N. Eskridge, Jr. The book contains an admirably broad range of perspectives on the sundry conflicts ahead and behind involving these often clashing civil rights. I’m biased in the book’s favor, since the authors generously included me as one of the contributors. My chapter, On the Uses of Anti-Christian Identity Politics, can be read in draft here.

The rights of lesbian, gay, bisexual, and transgender persons (LGBT) are strongly contested by certain faith communities, and this confrontation has become increasingly pronounced following the adjudication of a number of legal cases. As the strident arguments of both sides enter a heated political arena, it brings forward the deeply contested question of whether there is any possibility of both communities’ contested positions being reconciled under the same law. This volume assembles impactful voices from the faith, LGBT advocacy, legal, and academic communities – from the Human Rights Campaign and ACLU to the National Association of Evangelicals and Catholic and LDS churches. The contributors offer a 360-degree view of culture-war conflicts around faith and sexuality – from Obergefell to Masterpiece Cakeshop – and explore whether communities with such profound differences in belief are able to reach mutually acceptable solutions in order to both live with integrity.

Posted on by Daniel Vitagliano

Around the Web

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

Posted on by Mark Movsesian

Sahoo, “Pentecostalism and Politics of Conversion India”

9781108416122In yesterday’s book post, I spoke about how Evangelical Christianity is not a “white” or even “American” phenomenon, but a growing worldwide movement that has experienced great success in the global South. For today’s post, here is a new book from Cambridge that discusses the growth of Evangelical Christianity in India and the resulting political conflicts: Pentecostalism and Politics of Conversion in India, by Sarbeswar Sahoo (Indian Institute of Technology, Dehli). The publisher’s description follows:

This book studies the politics of Pentecostal conversion and anti-Christian violence in India. It asks: why has India been experiencing increasing incidents of anti-Christian violence since the 1990s? Why are the Bhil Adivasis increasingly converting to Pentecostalism? And, what are the implications of conversion for religion within indigenous communities on the one hand and broader issues of secularism, religious freedom and democratic rights on the other? Drawing on extended ethnographic fieldwork amongst the Bhils of Northern India since 2006, this book asserts that ideological incompatibility and antagonism between Christian missionaries and Hindu nationalists provide only a partial explanation for anti-Christian violence in India. It unravels the complex interactions between different actors/ agents in the production of anti-Christian violence and provides detailed ethnographic narratives on Pentecostal conversion, Hindu nationalist politics and anti-Christian violence in the largest state of India that has hitherto been dominated by upper caste Rajput Hindu(tva) ideology.

Posted on by amnania

Around the Web

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

Posted on by Mark Movsesian

McAlister, “The Kingdom of God Has No Borders”

9780190213428I recently heard a scholar present a paper that discussed American Christianity as a racial phenomenon. As I understand it, the critical race school maintains that American Christianity, particularly American Evangelical Christianity, is best seen as a mark of white American status. There is something to this, I guess, but it seems to me to ignore some facts. Evangelical Christianity in America attracts many followers from racial minority communities and is increasingly popular outside America, in the Global South. Also, American Evangelical Christians have done significant mission work in the Global South and contributed substantially to the growth of the Evangelical movement there. In fact, on the occasions that I’ve visited Evangelical churches, I have been struck with how diverse they are in terms of race, culture, national origin, and socioeconomic status. The churches are, if anything, more multicultural and egalitarian than other social groups of which I am aware.

A new book from Oxford University Press, The Kingdom of God Has No Borders: A Global History of American Evangelicals, addresses the racial and national diversity that characterizes contemporary Evangelicalism. The author is Melani McAlister of George Washington University. Here’s the description from the Oxford website:

More than forty years ago, conservative Christianity emerged as a major force in American political life. Since then the movement has been analyzed and over-analyzed, declared triumphant and, more than once, given up for dead. But because outside observers have maintained a near-relentless focus on domestic politics, the most transformative development over the last several decades–the explosive growth of Christianity in the global south–has gone unrecognized by the wider public, even as it has transformed evangelical life, both in the US and abroad.

The Kingdom of God Has No Borders offers a daring new perspective on conservative Christianity by shifting the lens to focus on the world outside US borders. Melani McAlister offers a sweeping narrative of the last fifty years of evangelical history, weaving a fascinating tale that upends much of what we know–or think we know–about American evangelicals. She takes us to the Congo in the 1960s, where Christians were enmeshed in a complicated interplay of missionary zeal, Cold War politics, racial hierarchy, and anti-colonial struggle. She shows us how evangelical efforts to convert non-Christians have placed them in direct conflict with Islam at flash points across the globe. And she examines how Christian leaders have fought to stem the tide of HIV/AIDS in Africa while at the same time supporting harsh repression of LGBTQ communities.

Through these and other stories, McAlister focuses on the many ways in which looking at evangelicals abroad complicates conventional ideas about evangelicalism. We can’t truly understand how conservative Christians see themselves and their place in the world unless we look beyond our shores.

Posted on by Mark Movsesian

Saiman, “Halakhah”

9780691152110_0Ever since we started this center in 2010, one of our primary areas of focus has been comparative religious jurisprudence. It’s a fascinating subject, and one that draws little attention in the American legal academy, even in jurisprudence classes. Several years ago, a group of scholars tried to spark a Religious Legal Theory movement. Our center hosted one of the early conferences, in fact, which produced a number of excellent papers. But the movement seems to have fizzled out, sadly. The academy is a very secular place.

Still, comparative religious jurisprudence is an important object of study. Law figures, in some form, in every religion. But it plays very different roles. In Judaism and Islam, for example, law is the primary means for believers to interact with God–to learn and apply His will for humanity. In these religions, law plays the role that theology, properly understood, does in Christianity. Law is a vehicle for meditating on the divine.

I’m speaking in very broad terms; the subject is quite a bit more complicated. But I’m sure that the new book by our friend and colleague, Chaim Saiman (Villanova), will be a great and helpful addition to the literature in comparative religious jurisprudence. The book is Halakhah: The Rabbinic Idea of Law, from Princeton University Press. Here’s the description from the publisher’s website:

How the rabbis of the Talmud transformed everything into a legal question—and Jewish law into a way of thinking and talking about everything.

Though typically translated as “Jewish law,” the term halakhah is not an easy match for what is usually thought of as law. This is because the rabbinic legal system has rarely wielded the political power to enforce its many detailed rules, nor has it ever been the law of any state. Even more idiosyncratically, the talmudic rabbis claim that the study of halakhah is a holy endeavor that brings a person closer to God—a claim no country makes of its law.

In this panoramic book, Chaim Saiman traces how generations of rabbis have used concepts forged in talmudic disputation to do the work that other societies assign not only to philosophy, political theory, theology, and ethics but also to art, drama, and literature. In the multifaceted world of halakhah where everything is law, law is also everything, and even laws that serve no practical purpose can, when properly studied, provide surprising insights into timeless questions about the very nature of human existence.

What does it mean for legal analysis to connect humans to God? Can spiritual teachings remain meaningful and at the same time rigidly codified? Can a modern state be governed by such law? Guiding readers across two millennia of richly illuminating perspectives, this book shows how halakhah is not just “law” but an entire way of thinking, being, and knowing.

Posted on by Mark Movsesian

Winterer, “American Enlightenments”

f91c0ad896d2f4ffe39f2cfa7861d6ddIn yesterday’s book post, I noted that the American Revolution was more complicated and contingent an event than commonly understood. If one or two battles had gone differently, the Crown might well have prevailed, with all that implies for, among other things, church and state in America. And conventional wisdom errs in assuming that the Revolution was a straightforward project of the Enlightenment, and that the Enlightenment itself was a unified movement. A book released by Yale University Press last month, American Enlightenments: Pursuing Happiness in the Age of Reason, by Caroline Winterer (Stanford), argues that the Enlightenment had many different, competing, not always consistent streams. The author apparently thinks the Cold War is responsible for our exaggerated sense of the unity of our Revolution and its Enlightened character, which seems doubtful. But the main theme of the book looks very interesting. Here’s the description from the publisher’s website:

A provocative reassessment of the concept of an American golden age of European-born reason and intellectual curiosity in the years following the Revolutionary War

The accepted myth of the “American Enlightenment” suggests that the rejection of monarchy and establishment of a new republic in the United States in the eighteenth century was the realization of utopian philosophies born in the intellectual salons of Europe and radiating outward to the New World. In this revelatory work, Stanford historian Caroline Winterer argues that a national mythology of a unitary, patriotic era of enlightenment in America was created during the Cold War to act as a shield against the threat of totalitarianism, and that Americans followed many paths toward political, religious, scientific, and artistic enlightenment in the 1700s that were influenced by European models in more complex ways than commonly thought. Winterer’s book strips away our modern inventions of the American national past, exploring which of our ideas and ideals are truly rooted in the eighteenth century and which are inventions and mystifications of more recent times.

Posted on by Marc O. DeGirolami

First Things Supreme Court Roundup: “Kennedy’s Last Term”

Kevin Walsh and I have this year’s Supreme Court roundup at First Things: Kennedy’s Last Term. In the piece we cover some of the major decisions of the last term, including First Amendment cases (Masterpiece, NIFLA, Janus), cases concerning what we call “the influence of social, technological, and moral change on Supreme Court doctrine” (Wayfair, Carpenter, Murphy v. NCAA), and political gerrymandering/judicial limits cases (Gill, Benisek), as well as a short comment on Trump v. Hawaii. 

Something from the conclusion:

What, then, should we expect from the post-Kennedy Court? Perhaps more of the same. There was not a single 5–4 decision this term in which Justice Kennedy joined with the more liberal wing of the Court. That has never before happened on the Roberts Court. And there were fourteen 5–4 cases in which Kennedy joined with the four more conservative justices to form a majority, including First Amendment cases such as Janus and NIFLA, separation of powers cases like Trump v.Hawaii, political process cases involving political and racial gerrymandering, and a range of statutory interpretation and business cases. This record suggests that, should Judge Brett Kavanaugh be confirmed, we ought to expect a fair amount of continuity rather than radical change.

But in other major areas—areas that happen not to have been addressed this term—the change may be more substantial. Consider, for example, the constitutional law of abortion. Here, Kennedy’s replacement might make a difference, particularly if there is a possibility that a Justice Kavanaugh might join with four colleagues in ending the regime of constitutional abortion law initiated by Roe v. Wade.

Social conservatives have been disappointed before. The Court’s first major abortion case after Justice Kennedy joined the Court was the 1989 decision Webster v. Reproductive Health Services, where it seemed there might be five votes to overrule Roe. Chief Justice William Rehnquist wrote an opinion for four justices that purported to “modify and narrow” Roe, but Reagan-nominated Justice Sandra Day O’Connor went her own way, introducing the “undue burden” standard that has remained the law until today. Scalia, meanwhile, lamented that this missed opportunity to reverse Roe meant that “the mansion of constitutional abortion law, constructed overnight in Roe, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” Scalia was farseeing. Four years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Kennedy joined with O’Connor and Justice David Souter to preserve what they called “the central holding” of Roe.

We are guardedly optimistic that Kavanaugh’s confirmation will eventually result in the rejection of Roe v. Wade. But nobody should expect a quick or complete demolition of constitutional abortion rights. Caution is in order because of both internal Court dynamics and external pressure on the ­institution.

The shift on the new Court should be measured not by the distance between Kennedy and ­Kavanaugh, but between Kennedy and Roberts. On a multi-member Court, the views of the median justice matter most in the close cases implicating the culture wars. And Roberts cares deeply about public perceptions of the Court’s legitimacy. The same concerns that motivate Roberts to embrace minimalism more broadly, as in the cases this term about partisan gerry­mandering and sales taxes, will likely mean even greater caution in these hotter and angrier areas of constitutional law.

Neither should we forget that the result of overruling the Roe/Casey regime is no panacea. It would simply lift restrictions on state legislation. But that is hardly always desirable. We can surely expect some, perhaps many, states to follow the lead of Massachusetts, where legislators passed a NASTY (Negating Archaic Stereotypes Targeting Young) Women Act that repealed abortion restrictions that might in theory have come back into force if Roe/Casey were overturned. New York’s governor has made extensive abortion rights a rallying cry of his campaign for reelection.

Just as the damage done by Roe/Casey is not exclusively legal, neither will it be undone by legal means alone. The Court and dominant cultural opinion shape each other, and the arrow of influence runs in both directions. However much “the mansion of constitutional abortion law” may be dismantled, the constitutional rot at its foundation is the result of powerful cultural forces. Let us not put our trust in judges any more than princes, not only because they are fallible, but also because judges are meant to judge, not to save us from ourselves.

Posted on by Daniel Vitagliano

Around the Web

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

Posted on by Mark Movsesian

Frazer, “God against the Revolution”

9780700626960“Let tyrants shake their iron rod / And Slav’ry clank her galling chains / We fear them not, we trust in God / New England’s God Forever Reigns.” These words from a famous Revolutionary song reflect the Patriots’ belief that the Almighty was on their side in the struggle against the Crown and for independence from Great Britain. This belief carried forward after the war, so that, when Tocqueville visited in the 19th century, he observed that Americans so completely conflated Christianity and “freedom” that they could not conceive of one without the other. But there was another side in the Revolution. Like many colonial rebellions, the Revolution was in truth a civil war, and one with religious undertones. The Loyalists also thought God was on their side. But as Anglicans and conservatives, they thought He favored, not Republicanism, but Monarchy and the Established Church.

A new book from the University Press of Kansas, God against the Revolution, by historian Gregg L. Frazer (The Master’s University) evaluates the arguments of Loyalist clergy. It looks like a fascinating book. Perhaps, like Bernard Bailyn’s famous biography of Loyalist Governor Thomas Hutchinson, The Ordeal of Thomas Hutchinson, it will encourage some sympathy with the losers in our Revolution. Here’s the description from the publisher’s website:

Because, it’s said, history is written by the victors, we know plenty about the Patriots’ cause in the American Revolution. But what about the perhaps one-third of the population who opposed independence? They too were Americans who loved the land they lived in, but their position is largely missing from our understanding of Revolution-era American political thought. With God against the Revolution, the first comprehensive account of the political thought of the American Loyalists, Gregg L. Frazer seeks to close this gap.

Because the Loyalists’ position was most clearly expressed by clergymen, God against the Revolution investigates the biblical, philosophical, and legal arguments articulated in Loyalist ministers’ writings, pamphlets, and sermons. The Loyalist ministers Frazer consults were not blind apologists for Great Britain; they criticized British excesses. But they challenged the Patriots claiming rights as Englishmen to be subject to English law. This is one of the many instances identified by Frazer in which the Loyalist arguments mirrored or inverted those of the Patriots, who demanded natural and English rights while denying freedom of religion, expression, and assembly, and due process of law to those with opposing views. Similarly the Loyalist ministers’ biblical arguments against revolution and in favor of subjection to authority resonate oddly with still familiar notions of Bible-invoking patriotism.

For a revolution built on demands for liberty, equality, and fairness of representation, God against Revolution raises sobering questions—about whether the Patriots were rational, legitimate representatives of the people, working in the best interests of Americans. A critical amendment to the history of American political thought, the book also serves as a cautionary tale in the heated political atmosphere of our time.