Posted on by Marc O. DeGirolami

Strasser, “Religion, Education and the State”

If there is one thing that religion clause scholars generally agree on (in fact, there may be only one thing), it is the unsatisfactory quality of religion clause doctrine, and especially Establishment Clause jurisprudence.  Mark Strasser’s (Capital University) new book, Religion, Education and the State: An Unprincipled Doctrine in Search of Moorings (Ashgate 2011), appears to fit squarely within the genre.  The publisher’s description follows.

In the context of education, Church and State issues are of growing importance and appear to be increasingly divisive. This volume critically examines the developing jurisprudence relating to religion in the schools beginning with Everson v. Board of Education, where the US Supreme Court discussed the wall of separation between Church and State. The study traces both how the Court’s views have evolved during this period and how, through recharacterizations of past opinions and the facts underlying them, the Court has appeared to interpret Establishment Clause guarantees in light of the past jurisprudence when in reality that jurisprudence has been turned on its head. The Court not only offers an unstable jurisprudence that is more likely to promote than avoid the problems that the Establishment Clause was designed to prevent, but approaches Establishment Clause issues in a way that decreases the likelihood that an acceptable compromise on these important issues can be reached.

The study focuses on the situation in the US but the important issue of religion, education and the state has great relevance in many jurisdictions.

Posted on by Mark Movsesian

Military Allows Chaplain to Keep Beard

This morning, Rabbi Menachem Stern, a Chabad Lubavitch rabbi, will join the U.S. Army Chaplain Corps. It wasn’t always clear he could. Like other Hasidic Jews, Rabbi Stern interprets a passage from Leviticus to require men to wear beards. Army regulations generally forbid beards. Rabbi Stern sued, arguing that the no-beards rule, as applied to a Hasidic Jew like him, violated the Free Exercise Clause. The Army settled the case and granted Stern a waiver, as it has done for Sikh and Muslim soldiers whose religious beliefs also require them to wear beards.

I haven’t seen Rabbi Stern’s complaint, but I imagine he relied heavily on then-Judge Alito’s famous decision in Fraternal Order of Police v. City of Newark (3d Cir. 1999), which struck down a police department’s no-beards rule. The rule exempted police officers who grew beards for medical reasons, but not those who grew beards for religious reasons. Alito concluded that denying an exemption for religious reasons, while allowing an exemption for secular reasons, violated the Free Exercise Clause. Like the police department regulations in Fraternal Order of Police, Army regulations appear to allow soldiers to wear beards if a medical condition requires it.

Posted on by Marc O. DeGirolami

Paulsen on “The Most Important Religious Liberty Case of the Last 30 Years”

Constitutional scholar Michael Stokes Paulsen has an interesting piece about Widmar v. Vincent, which he describes as just that important.  In Widmar, the issue was whether UMKC, a state school, could exclude a Christian group from using its facilities to engage in religious worship on the same terms that other groups used them.  As Professor Paulsen notes, by an 8-1 vote, the Court said that it could not exclude the religious group.

An important piece of that case, which Paulsen notes and which was regrettably ignored and/or marginalized by the Second Circuit in its Bronx Household of Faith decision by drawing an irrelevant distinction between worship services and religious expression, was that there simply is no establishment concern that is activated by permitting religious groups to use public facilities for religious purposes on equal terms with others.  It is regrettable that the Supreme Court has denied cert. in Bronx Household, since it would have represented an occasion to reaffirm that principle.  Moreover, while state use of religious facilities may have been an establishment concern, the reverse was certainly not of concern as an original matter.  (See Donald Drakeman’s book)

Posted on by Marc O. DeGirolami

Grote & Roder eds., “Constitutionalism in Islamic Countries”

Here is a very substantial and extremely timely book edited by Rainer Grote and Tilmann Röder (both of the Max Planck Institute), Constitutionalism in Islamic Countries: Between Upheaval and Continuity (OUP 2011).  The publisher’s description follows.

Constitutionalism in Islamic Countries: Between Upheaval and Continuity examines the question of whether something similar to an “Islamic constitutionalism” has emerged out of the political and constitutional upheaval witnessed in many parts of North Africa, the Middle East, and Central and Southern Asia. In order to identify its defining features and to assess the challenges that Islamic constitutionalism poses to established concepts of constitutionalism, this book offers an integrated analysis of the complex frameworks in Islamic countries, drawing on the methods and insights of comparative constitutional law, Islamic law, international law and legal history. European and North American experiences are used as points of reference against which the peculiar challenges, and the specific answers given to those challenges in the countries surveyed, can be assessed. The book also examines ways in which the key concepts of constitutionalism, including fundamental rights, separation of powers, democracy and rule of law, may be adapted to an Islamic context, thus providing valuable new insights on the prospects for a genuine renaissance of constitutionalism in the Islamic world in the wake of the “Arab spring.”

Posted on by Mark Movsesian

Tillman on the Religious Test Clause

Seth Tillman (National University of Ireland, Maynooth) has posted Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal and Disqualification Clause, and the Religious Test Clause — A Response to Professor Josh Chafetz’s “Impeachment and Assassination”, on SSRN. The abstract follows.

This article is a response to Professor Josh Chafetz’s Impeachment & Assassination, Minnesota Law Review, Vol. 95, p. 347, 2010. According to Professor Josh Chafetz, “impeachment maintains the link between removal and death, but attenuates it…. Impeachment is … a political death – a President who is impeached and convicted is deprived of his continued existence as a political officeholder. And, like death, impeachment and conviction may be permanent.” In this response, it is my purpose to show that Chafetz’s proposed metaphor does not work and, indeed, that inferences drawn from this metaphor lead Chafetz far afield from the Constitution’s original public meaning.

This paper is largely a response to Professor Chafetz’s Minnesota Law Read more

Posted on by Mark Movsesian

Albert on the Establishment Clause and the Separation of Powers

Richard Albert (Boston College) has posted a new article, The Separation of Higher Powers, on SSRN. The abstract follows. — MLM

The very first words of the very first amendment to the United States Constitution continue to frustrate the quest for constitutional clarity. The Bill of Right’s Establishment Clause commands in plain terms that “Congress shall make no law respecting an establishment of religion,” but the legal interpretation and political implications of the Clause remain contested today as ever before. What may government require of religion? What may religion demand of government? How much of its independence must religion cede to government? And how closely may government collaborate with religion? These enduring questions admit of no definitive answers, at least not without an organizing logic that can bring coherence and purpose to the Establishment Clause. In this Article, I suggest that the concept of the separation of powers can help do just that. Using separation of powers theory, I construct a framework for clarifying the meaning of the Establishment Clause, giving political actors guidance for crafting policy pursuant to it, and making predictable its interpretation in courts.

Posted on by Marc O. DeGirolami

Magarian on Justice Stevens’s Religion Clause Jurisprudence

Gregory P. Magarian (Wash. U. St. Louis, and a former law clerk to Justice John Paul Stevens) has posted Justice Stevens, Religion, and Civil Society.  The abstract follows.  — MOD

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his thirty-five years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he opposed exempting religious believers from laws that interfered with religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with hostility toward religion. This Article debunks that conventional analysis and offers a new explanation of Justice Stevens‘s religion jurisprudence. The Article shows that Justice Stevens took the same approach to constitutional cases about churches that he took to constitutional cases about other powerful institutions of civil society, including the major political parties and voluntary membership associations. Justice Stevens resisted these varied civil society institutions‘ demands for increased constitutional autonomy, based on two persistent concerns. First, Justice Stevens sought to constrain civil society institutions‘ coercive power over individuals. Second, he viewed civil society institutions‘ tendencies toward factionalism as a threat to national unity. Justice Stevens did not consider religion a special object of constitutional concern, let alone a special object of disdain. This descriptive insight permits a fresh normative assessment of Justice Stevens‘s religion jurisprudence. Justice Stevens‘s anti-coercion principle provided the driving force behind his Establishment Clause opinions. The Article finds the anti-coercion principle normatively compelling in the abstract and well adapted to Establishment Clause disputes. In contrast, Justice Stevens‘s anti-factionalism principle drove his opinions about free exercise accommodations. The Article finds the anti-factionalism principle normatively problematic in general and particularly ill-suited to the problem of free exercise accommodations.

Posted on by Mark Movsesian

Personhood Amendment Fails in Mississippi

An update on the proposed Personhood Amendment on the ballot in Mississippi, about which I posted last month. The measure, which would have amended the state constitution to define life as beginning at  the moment of conception, failed yesterday. The defeat was surprising, given earlier opinion surveys in this socially conservative state, but the Personhood Amendment had divided abortion opponents, including the Catholic Church, which declined to endorse the measure for pragmatic reasons. — MLM

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Pin on the Italian Separation of Church and State

Andrea Pin (University of Padua – Faculty of Law) has posted Public Schools, the Italian Crucifix, and the European Court of Human Rights: The Italian Separation of Church and State. The abstract follows.  – ARH

The recent judgments of the European Court of Human Rights (“ECHR”) with regard to the presence of the Catholic symbol of the crucifix in Italian public schools are just the latest episodes of the ongoing juridical and political struggle for the secularization of the Italian state. This debate involves the interpretation and the enactment of the Italian Constitution as well as the  political and cultural trends that shape the Italian public debate about the public role of religion.

The decisions of the ECHR, which operates in Strasbourg, pushed the debate further: from the interpretation of the Italian Constitution to the respect for international treaties. In the first degree, the Court found Italy’s policy of displaying crucifixes in public schools violated Article 9 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights”) that protects the right to freedom of religion. The popular and political criticisms of the judgment were immediate and forceful throughout Italian public discourse, because a majority in Italian society supports the presence of the crucifix in public schools. Read more

Posted on by Marc O. DeGirolami

Constitutional Pressure Points

Here’s a series of events I found interesting.  This story reports that in 2006, the United States Conference of Catholic Bishops had been awarded a government contract for the provision of assistance to victims of human trafficking.  These contracts are awarded pursuant to the William Wilberforce Trafficking Victims Protection Act of 2000.  Earlier this October, the contract with the USCCB was not renewed by the government and it was awarded to three other non-profit organizations.  There is some speculation in the story that the reason the contract was not extended was the USCCB’s unwillingness to refer victims to abortion providers or supply birth control, but the government did not explain its decision.

In related news, in 2009, the ACLU of Massachusetts filed a federal action in the District of Massachusetts against the federal government alleging that its decision to award this contract to the USCCB violated the Establishment Clause.  Read more