Posted on by Marc O. DeGirolami

Law and Religion Events at Touro

Courtesy of CLR friend Sam Levine, here are a few events at Touro Law Center which look terrific and may be of interest to readers.

First, Nathan Lewin will be giving a lecture on March 20 entitled, “The Legal Profession and the Orthodox Jewish Lawyer — Change Over Half a Century.”  Details here.

Second, on May 2-4, Touro is hosting the biennial Conference of Religiously Affiliated Law Schools, with the theme: “The Place of Religion in the Law School, the University, and the Practice of Law.”  The full conference announcement with speakers listed is here.  My colleague, Mark, will be speaking at the conference.

Posted on by Marc O. DeGirolami

Joseph Weiler at St. John’s Law School

The Center for Law and Religion is delighted to announce that Professor Joseph Weiler (NYU) will visit us at St. John’s Law School next Monday, March 5, at 5:30 pm.  His is the third session in our ongoing seminar, Colloquium in Law: Law and Religion.  Professor Weiler will be presenting a paper dealing with the case of Lautsi v. Italy, which involved the display of the crucifix in Italian public schools and in which he was an advocate for several intervening European states.  Academics in the New York area and beyond are welcome to attend.  Please contact me if you wish to do so.

Posted on by Mark Movsesian

Liveblogging the Religious Legal Theory Conference: Congratulations and Thanks

Congratulations and thanks to Bob Cochran and Michael Helfand for hosting this weekend’s Religious Legal Theory Conference at Pepperdine. It was all an academic meeting should be: substantive and collegial, with a diversity of voices and perspectives.  For live blog posts of some of the many excellent conference panels, see below.

Posted on by Mark Movsesian

Liveblogging the Religious Legal Theory Conference: International & Comparative Perspectives, Part 2

This afternoon I participated in the second International and Comparative Perspectives panel, moderated by Colleen Graffy (Pepperdine). The panelists (left)  addressed a variety of national and regional perspectives on law and religion.

Dia Dabby (McGill) began the panel with a presentation on a Canadian child custody case that involved a conflict between the parents’ religious beliefs and their children’s best interests. In the case, a stepfather claimed that his religious tradition – “Odinism” — justified his covering his 7-year old stepdaughter’s skin with racist drawings, including swastikas. The Canadian court dismissed the stepfather’s claim, in part because there was no evidence he knew what “Odinism” was, but also because the child’s best interests had precedence over the parent’s right to religious expression. Dabby used the case to discuss the metaphor of human skin as a way of describing conflicts about law and religion.

Kuyper Lee (Handong Global University) then discussed the situation of Christian lawyers in South Korea, a situation he described as one of “struggling and loneliness.” Christian lawyers traditionally keep silent about their faith in public, he explained, largely in deference to pastors, who have a commanding role in Korean Christianity. Christian lawyers in Korea, he said, are trying to work out how best to express their faith in a society in which Christian churches are increasingly subject to public criticism.

Santiago Legarre (Universidad Catolica Argentina) then gave an talk on a religious display case from Argentina. In the case, an American-funded NGO challenged the courthouse display of an image of the Virgin Mary, using the American creche case, Lynch v. Donnelly, as persuasive authority. Read more

Posted on by Marc O. DeGirolami

Liveblogging the Religious Theory Conference — Panel: “Is Religion Special?”

The first speaker is Nathan Chapman (Stanford Constitutional Law Center), who is presenting a talk about the possibility of finding a religion-specific ground of protecting religious liberty, as opposed to a ground which applies to religious reasons and non-religious reasons alike.  That is, Chapman is trying to discern a ground to protect religious conscience which would not apply to non-religious conscience.  Setting aside the scope of the Religion Clauses of the American Constitution, the duty of those who believe in a “Higher Kingdom” — and around beliefs and practices ordered around a “Kingdom of God” — accounts historically at least for the idea of religious liberty, says Chapman.  This has historically been the justification for the protection of religious liberty — for promoting the “Kingdom of God.”  Chapman offers various explanations for the particular qualities of this justification, but makes clear that he is not advocating importing this justification directly into American law.

The second speaker is Bruce Ledewitz (Duquesne).  Ledewitz proposes that religious legal theory ought to influence law and society.  He approaches the issue from the perspective of a secularist himself.  He argues that a humanistic but also religious sensibility, but one which is not necessarily theistic, offers a fruitful way forward.  The thinness of secular discourse is incapable of dealing with the problems of concrete social practices.  If religion is unique, if ought to offer unique insights to secular society.  Religious traditions are “resources for society” and this might be what makes them special.

The third speaker is Micah Schwartzman.  Schwartzman’s asks, “What if religion isn’t special?”  One sub-question is whether religion ought to be excluded for purposes of legal decision-making.  A second sub-question deals with religious accommodation.  The aim of the paper is to show that along a number of lines, religion is actually not special, at least as a moral matter.  He attacks the views of several prominent scholars who support the view that religion is special.

The fourth speaker is Nelson Tebbe.  Tebbe’s argument deals with government endorsement of ideas.  The claim is that there are certain secular positions that the government cannot endorse.  An example is racialized speech.  Suppose a government were to say that America is a white nation.  That, says Tebbe, would be unconstitutional under the Equal Protection Clause.  He also says it would be unconstitutional based on the Free Speech Clause, at least on a certain reading which is “democratic” in nature (see Owen Fiss).  Another example he offers deals with government electioneering — suppose the government said, “Vote Democratic.”  This, too, would be unconstitutional, even if government is able to advocate for particular policy views.  The intuition is that the government cannot directly interfere in these ways with democratic processes.  The textual hook is the Free Speech Clause, again read in a certain democracy-enhancing way.  These are examples of “secular non-endorsement,” and Tebbe argues that they suggest that religion is not special per se insofar as it relates to disabilities on what the government can say.  But even under Tebbe’s approach, the rule against religious endorsement is more powerful than non-religious endorsement.

Posted on by Marc O. DeGirolami

Liveblogging the Religious Theory Conference — Panel: “Government Institutions, Religious Affairs, and the First Amendment”

This afternoon I was delighted to participate in a panel at the Religious Theory Conference dealing with various subjects involving the First Amendment.  My own talk dealt with the Free Exercise Clause, and it focused on the question whether the doctrine which has grown up around Employment Division v. Smith is as predictable (as a guide to both judges and litigants) as its rhetoric has suggested to its supporters and opponents alike.

The second speaker was Mike Helfand (Pepperdine), one of the conference’s co-organizers, who gave a very interesting talk drawn from an excellent paper titled, “Litigating Religion.”  Mike’s provocative thesis is that the current approach to the issue of whether civil courts are capable of adjudicating religious disputes — one which posits total jurisdictional incompetence — is misguided.  Instead, civil courts should be required to “defer” to religious institutions’ authoritative interpretation of their religious tenets, but where there is no such interpretation, courts should step in.  

The third speaker on our panel was Dean Raymond Pierce of North Carolina Central Law School.  Dean Pierce spoke about the coercion test sometimes mentioned as the operative test for certain Establishment Clause issues.  He focused particularly on the issue of school prayer, and offered an impassioned criticism of the ways in which current Supreme Court doctrine prohibits certain kinds of religious expressions in public fora.

The final speaker was Mark Strasser (Capital University), who discussed the endorsement test and its evolution since Justice O’Connor first formulated it.  He considered Justice Alito’s interesting twist on the test in Salazar v. Buono, where Justice Alito argued that removal of a religious symbol might convey disrespect or disparagement of religion according to the reasonable observer standard.

Posted on by Mark Movsesian

Liveblogging the Religious Legal Theory Conference – Panel: “Who Should Influence Whom?”

While my colleague Marc spoke on another panel this afternoon, I attended  a competing session, “Who Should Influence Whom?” This panel addressed a growing field in law and religious scholarship: legal discourse within religious traditions.

Perry Dane (Rutgers-Camden) began the panel by discussing the interplay between faith and law in the history of Christianity. He described different turning points in that history, including the apostolic era, the Papal Revolution of the Middle Ages, and the Protestant Reformation. Even though Christianity has expressed ambivalence towards law, he argued, legal discourse has played an important role in Christian thought.

David Flatto (Penn State) then spoke about the concept of law in the three Abrahamic faiths: Christianity, Islam, and Judaism. The Abrahamic faiths, he suggested, all share a sense that legal authority comes principally from religious sages, not political actors, that justice should be separated from power. He gave several examples from Judaism, both Biblical and post-Biblical, as well as a couple of examples from Islam and Christianity – though he also noted differences among these three religions’ approach to the question as well, particularly Christianity’s.

David Opderbeck (Seton Hall) spoke third. His paper was a theological and philosophical reflection on intellectual property. He noted that our notions of intellectual property and culture have become divorced from metaphysics, including Christian metaphysics: Both popular and academic theories of culture ignore theology in favor of pragmatic market explanations. He asked whether theology can “rescue” contemporary metaphysics and contribute to theories of culture and culture-production, and suggested that the Christian concept of grace — “the gift” can do so.

Posted on by Marc O. DeGirolami

Liveblogging the Religious Legal Theory Conference — International and Comparative Perspectives, Panel 1

I am here at this year’s Religious Legal Theory conference, The Competing Claims of Law and Religion: Who Should Influence Whom?, at Pepperdine in sunny Malibu.  The first panel on international and comparative perspectives is now going on.

The first speaker is Stijn Smet (a Ph.D. student at Ghent), who is speaking about Freedom of Religion Versus Freedom From Religion in the Jurisprudence of the European Court of Human Rights.  The first case Mr. Smet is discussing is the Dahlab v. Switzerland, involving a teacher who wanted to wear a headscarf in public school.  He criticizes this decision.

He is now talking about Lautsi v. Italy, the Italian crucifix case, where the Grand Chamber of the European Court ultimately upheld Italy’s right to display the crucifix in public schools.  He criticizes the idea that the crucifix is a “passive” symbol at least by comparison with the Dahlab decision’s description of the headscarf as an active symbol.

He explains the difference in outcome as involving the concept of margin of appreciation.  Neither case dealt with indoctrination, though he recognizes that the definition of indoctrination needs to be filled out.  Smet also notes that there is no Establishment Clause analogue in the Convention, and he notes the difference in power and jurisdiction of the European Court.  He suggests an “equal respect” argument which might have been available through Article 14.

The second speaker is Mark D. Rosen (Chicago-Kent).

Read more

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“The Competing Claims of Law and Religion” at Pepperdine School of Law

The Herbert and Elinor Nootbaar Institute on Law, Religion and Ethics  is hosting a conference entitled, “The Competing Claims of Law and Religion: Who Should Influence Whom?” this weekend at Pepperdine School of Law.  The Conference begins today and continue through Saturday. On Friday, Marc DeGirolami will be presenting a talk entitled, “The Method of Tragedy and History Applied.” On Saturday, Mark Movsesian will be presenting his talk, “Crosses and Culture: Public Religious Symbols in the U.S. and Europe.”  Both Marc and Mark will be liveblogging from the conference throughout the weekend.

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Writings from the Trento Conference

In December, 2011, Orbis Books published Catholic Theological Ethics, Past, Present, and Future: The Trento Conference.  The volume, edited by James F. Keenan, S.J.—Jesuit priest and professor in theology at Boston College—, collects works arising out of the Trento Conference, convened in Trento, Italy in July, 2010.  (Significantly, Trento was the location of the sixteenth century Council of Trent that launched the Catholic Counter-Reformation.)

The Trento Conference was a massive effort—featuring hundreds of presenters— focused on the encounter between moral theology and issues of contemporary global social policy.  The Conference took a dialogic methodological approach—that is, an approach not drawing strict lines between Catholic orthodoxy and unorthodoxy—to these contemporary social issues, which included “sexuality, authority, . . . gender, sustainability, health, econom[ics], . . . the right to food, [and] family.”  See generally James F. Keenan, S.J., What Happened at Trento 2010?, 72 Theol. Stud. 131, 140, 146 (2011) (interestingly, Theological Studies is a Jesuit journal focused on theological ethics founded in 1940 and edited by the Jesuit scholar and Catholic social thinker, Fr. John Courtney Murray, S.J., from 1942 until his death in 1967).

The contributions in Fr. Keenan’s volume aspire to develop a Catholic moral theology for the twenty first century.  They examine Catholic moral theology’s history, review theological ethics as they exist today, and propose directions Catholic theological ethics might—or should—take in the years to come.  Of particular social policy interest are its explorations of inter-religious dialogue and harmonic co-existence; perspectives from socially, economically, and globally marginalized and/or silenced communities; and ethics in politics.

For Orbis Books’ description of the volume, please follow the jump. Read more