Around the Web

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

Around the Web

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

Around the Web

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

Around the Web

Some important law-and-religion stories from around the web:

Stahl, “Enlisting Faith”

If one adheres to the endorsement test, or even Justice Kennedy’s psychological coercion test, military chaplains present serious constitutional problems. Taxpayer-funded clergy surely count as an endorsement of religion over non-religion, and what could be more psychologically coercive than a superior officer? Yet we have had military chaplains for centuries and no one seriously thinks our Supreme Court would hold them unconstitutional. Perhaps, as the Court itself has suggested, the unusual context of the military, which places great restrictions on normal religious exercise, requires an exception from normal establishment clause principles. Or perhaps American tradition itself requires accommodating practices which, although theoretically problematic, so pervade our history that ending them would be illegitimate.

Later this year, Harvard will release Enlisting Faith: How the Military Chaplaincy Shaped Religion and State in Modern America, by University of Pennsylvania Professor Ronit Stahl. Here’s the description from the Harvard website:

9780674972155A century ago, as the United States prepared to enter World War I, the military chaplaincy included only mainline Protestants and Catholics. Today it counts Jews, Mormons, Muslims, Christian Scientists, Buddhists, Seventh-day Adventists, Hindus, and evangelicals among its ranks. Enlisting Faith traces the uneven processes through which the military struggled with, encouraged, and regulated religious pluralism over the twentieth century.

Moving from the battlefields of Europe to the jungles of Vietnam and between the forests of Civilian Conservation Corps camps and meetings in government offices, Ronit Y. Stahl reveals how the military borrowed from and battled religion. Just as the state relied on religion to sanction war and sanctify death, so too did religious groups seek recognition as American faiths. At times the state used religion to advance imperial goals. But religious citizens pushed back, challenging the state to uphold constitutional promises and moral standards.

Despite the constitutional separation of church and state, the federal government authorized and managed religion in the military. The chaplaincy demonstrates how state leaders scrambled to handle the nation’s deep religious, racial, and political complexities. While officials debated which clergy could serve, what insignia they would wear, and what religions appeared on dog tags, chaplains led worship for a range of faiths, navigated questions of conscience, struggled with discrimination, and confronted untimely death. Enlisting Faith is a vivid portrayal of religious encounters, state regulation, and the trials of faith—in God and country—experienced by the millions of Americans who fought in and with the armed forces.

Bordewich, “The First Congress”

The Supreme Court has, on occasion, given the decisions of the First Congress great weight in interpreting the Establishment Clause. The Framers of the First Amendment sat in the First Congress, so it seems plausible to look to their decisions as indications of what the Amendment meant to people at the time. The Court has not strictly held to this approach–when it comes to the Establishment Clause, it doesn’t strictly hold to any approach–but it’s there in the cases.

A new book by author Fergus Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster), discusses the history. The publisher’s description follows.

the-first-congress-9781451692112_hrThis “fascinating” (Chicago Tribune), “lively” (The New York Times) history tells how the First Congress and the Washington administration created one of the most productive and far-reaching governments in American history—“gracefully written…and well worth reading” (The Wall Street Journal).

The First Congress may have been the most important in American history because it established how our government would work. The Constitution was a broad set of principles that left undefined the machinery of government. Fortunately, far-sighted, brilliant, and determined men such as Washington, Madison, Adams, Hamilton, and Jefferson (and others less well known today) labored to create a functioning government.

In The First Congress, award-winning author Fergus Bordewich brings to life the achievements of the First Congress: it debated and passed the first ten amendments to the Constitution, which we know as the Bill of Rights; admitted North Carolina and Rhode Island to the union when they belatedly ratified the Constitution, then admitted two new states, Kentucky and Vermont, establishing the procedure for admitting new states on equal terms with the original thirteen; chose the site of the national capital, a new city to be built on the Potomac; created a national bank to handle the infant republic’s finances; created the first cabinet positions and the federal court system; and many other achievements. But it avoided the subject of slavery, which was too contentious to resolve.

The First Congress takes us back to the days when the future of our country was by no means assured and makes “an intricate story clear and fascinating” (The Washington Post).

Around the Web

Here are some interesting news stories involving law and religion from the past week:

Around the Web This Week

Here are some interesting stories involving law and religion from this past week:

My Take on Gorsuch: A Solid Conservative

At the First Things site today, I reflect on this week’s nomination of Judge Neil Gorsuch to serve on the Supreme Court. In my opinion, he’s likely to be a solid conservative–the sort of judge that any Republican administration in the last generation could have nominated. Here’s an excerpt:

He holds to originalism in constitutional interpretation and textualism in statutory interpretation—two positions that have been the foundation for judicial conservatism since the 1980s. His record in religion cases is reassuring. On the free exercise side, he has shown sensitivity to the right of believers to claim exemptions from laws that substantially burden their religious exercise. And he has done so not only in the famous Hobby Lobby case, in which the claimants were conservative Christians, but in a case involving a Native American prisoner. In fact, his opinion in the latter case, Youngbear v. Lambert, is a sophisticated, engaging essay on the law of religious exemptions generally. Gorsuch is a clear and accessible writer—something one cannot say for many judges.

His opinions on the Establishment Clause side, less well known, are also encouraging. Judge Gorsuch has signaled his opposition to the thirty-year-old “endorsement test,” which forbids state-sponsored displays that a reasonable observer would understand as an endorsement of religion. The test is famously malleable, and Judge Gorsuch has criticized the way his own circuit, in particular, has misinterpreted it to forbid some traditional public displays—including, notably, a Ten Commandments monument. His apparent dissatisfaction with the endorsement test bodes well for restoring a more sane Establishment Clause jurisprudence that honors American traditions.

You can read the whole post here.

 

Loewe, “Of Sacred Lands and Strip Malls”

In September, Rowman & Littlefield released “Of Sacred Lands and Strip Malls: The Battle for Puvungna,” by Ronald Loewe (California State University).  The publisher’s description follows:

A twenty-two acre strip of land—known as Puvungna—lies at the edge of 9780759121607California State University’s Long Beach campus. The land, indisputably owned by California, is also sacred to several Native American tribes. And these twenty-two acres have been the nexus for an acrimonious and costly conflict over control of the land. Of Sacred Lands and Strip Malls tells the story of Puvungna, from the region’s deep history, through years of struggle between activists and campus administration, and ongoing reverberations from the conflict.

As Loewe makes clear, this is a case study with implications beyond a single controversy; at stake in the legal battle is the constitutionality of state codes meant to protect sacred sites from commercial development, and the right of individuals to participate in public hearings. The case also raises questions about the nature of contract archaeology, applied anthropology, and the relative status of ethnography and ethnohistorical research. It is a compelling snapshot of issues surrounding contemporary Native American landscapes.

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