Posted on by Mark Movsesian

The Legal History of the Church of England

When the Framers of the First Amendment thought of an established church, they would have had one particular example in mind: the Established Church of England. But the laws respecting the establishment of religion in Britain have changed across the centuries. Establishment today does not mean what it did in the 18th century–or the 16th, for that matter. A new collection of essays from Bloomsbury, The Legal History of the Church of England: From the Reformation to the Present, explores the changes. The editors are Norman Doe, who directs our sister Centre for Law and Religion at Cardiff University and whose work we have noted many times, and Stephen Coleman, the Cardiff Centre’s Assistant Director. Here is the publisher’s description:

This book provides the first comprehensive analysis of the principal legal landmarks in the evolution of the law of the established Church of England from the Reformation to the present day.

It explores the foundations of ecclesiastical law and considers its crucial role in the development of the Church of England over the centuries.

The law has often been the site of major political and theological controversies, within and outside the church, including the Reformation itself, the English civil war, the Restoration and rise of religious toleration, the impact of the industrial revolution, the ritualist disputes of the 19th century, and the rise of secularisation in the twentieth. The book examines key statutes, canons, case-law, and other instruments in fields such as church governance and ministry, doctrine and liturgy, rites of passage (from baptism to burial) and church property.

Each chapter studies a broadly 50-year period, analysing it in terms of continuity and change, explaining the laws by reference to politics and theology, and evaluating the significance of the legal landmarks for the development of church law and its place in wider English society.

Posted on by L&R Forum

Around the Web

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

  • In Forter v. Young, the 9th Circuit Court of Appeals rejected a former prisoner’s complaints about the procedure used to deny his religious meal accommodation request. In seeking access to kosher meals, the former prisoner cited a Bible verse, and a prison official cited an additional verse to express his disagreement. The court found that the official’s response did not constitute an establishment of religion in violation of the establishment clause.
  • In Doe I v. Cisco Systems, Inc., the 9th Circuit Court of Appeals held that Falun Gong members, who were victims of human rights abuses carried out by China, can move ahead with claims against Cisco Systems and its executives for their assistance that enabled China to carry out monitoring of Internet activity by Falun Gong members. Falun Gong is a religion that originated in China in the 1990’s.
  • In Fitzgerald v. Roncalli High School, Inc., the 7th Circuit Court of Appeals dismissed a suit based on the ministerial exception doctrine where a Catholic high school guidance counselor’s contract was not renewed because her same-sex marriage was inconsistent with the Catholic school’s religious mission. The court found this to be an easy case because of a recent ministerial exception doctrine decision the court issued last year. 
  • In Must v. County of Fillmore, the Minnesota Court of Appeals found that the County of Fillmore did not meet its burden of showing it had a compelling interest in requiring the appellants to use septic tanks in violation of their religious beliefs. The appellants were three members of the Amish community who brought suit against the county under RLUIPA.
  • In Britain, the House of Commons held a 90-minute debate on a current law which gives 26 bishops of the Church of England the right to automatically have seats in the House of Lords.
Posted on by Mark Movsesian

Liturgy Matters

I thought I was reasonably well informed about the English Reformation, but a new book from Yale recounts an episode of which, I confess, I had never heard, the Prayer Book Rebellion of 1549, in which the people of Cornwall and Devon revolted when the government forbade Latin liturgies and required use of the new, English-language Book of Common Prayer. The government quickly put down the rebellion–but at the cost of 4000 lives. I’m not sure if the rebellion passed out of general knowledge, or if their antipathy to Catholicism led the Framers to pass over it, but I have never seen a reference to the Prayer Book Rebellion in the Framers’ frequent warnings about the dangers of establishment. Odd, because the rebellion seems a good example of such dangers–as well as the importance of liturgy to religious identity. Few things matter more to believers than the language they use to pray, as current controversies in the Catholic and other Christian churches reveal even today.

The book is A Murderous Midsummer: The Western Rising of 1549, by historian Mark Stoyle (University of Southampton). The publisher’s description follows:

The fascinating story of the so-called “Prayer Book Rebellion” of 1549 which saw the people of Devon and Cornwall rise up against the Crown

The Western Rising of 1549 was the most catastrophic event to occur in Devon and Cornwall between the Black Death and the Civil War. Beginning as an argument between two men and their vicar, the rebellion led to a siege of Exeter, savage battles with Crown forces, and the deaths of 4,000 local men and women. It represents the most determined attempt by ordinary English people to halt the religious reformation of the Tudor period.

Mark Stoyle tells the story of the so-called “Prayer Book Rebellion” in full. Correcting the accepted narrative in a number of places, Stoyle shows that the government in London saw the rebels as a real threat. He demonstrates the importance of regional identity and emphasizes that religion was at the heart of the uprising. This definitive account brings to life the stories of the thousands of men and women who acted to defend their faith almost five hundred years ago.

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 · 1 Comment

The Book of Common Prayer

People often give the King James Bible as a rare example of a beautiful text put together by government commission. Another example dates from the same period. The Book of Common Prayer traces back to the Tudors and, like the KJV, has entered into the common consciousness of the English-speaking world. The text was approved in 1559 by only three votes in the House of Lords, with no support at all from the Lords Spiritual. I’m not qualified to speak on the theology, but, at least in terms of the beauty and dignity of its language, those bishops definitely had it wrong.

Baylor University’s Alan Jacobs has written a new history, The Book of Common Prayer: A Biography. (Princeton University Press) Jacobs is always worth reading and this new book looks very interesting indeed. Here’s a description from the publisher’s website:

While many of us are familiar with such famous words as, “Dearly beloved, we are gathered together here. . .” or “Ashes to ashes, dust to dust,” we may not know that they originated with The Book of Common Prayer, which first appeared in 1549. Like the words of the King James Bible and Shakespeare, the language of this prayer book has saturated English culture and letters. Here Alan Jacobs tells its story. Jacobs shows how The Book of Common Prayer–from its beginnings as a means of social and political control in the England of Henry VIII to its worldwide presence today–became a venerable work whose cadences express the heart of religious life for many.

The book’s chief maker, Thomas Cranmer, Archbishop of Canterbury, created it as the authoritative manual of Christian worship throughout England. But as Jacobs recounts, the book has had a variable and dramatic career in the complicated history of English church politics, and has been the focus of celebrations, protests, and even jail terms. As time passed, new forms of the book were made to suit the many English-speaking nations: first in Scotland, then in the new United States, and eventually wherever the British Empire extended its arm. Over time, Cranmer’s book was adapted for different preferences and purposes. Jacobs vividly demonstrates how one book became many–and how it has shaped the devotional lives of men and women across the globe.

Posted on by amnania

Around the Web

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

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

Cutterham, “Gentlemen Revolutionaries”

Here is an interesting looking new book from Princeton on the Framers’ generation, Gentlemen Revolutionaries: Power and Justice in the New American Republic, by historian Tom Cutterham (University of Birmingham). Among other things, Cutterham addresses the clash between conservative supporters of religious establishment, mostly from New England states, and populists who wished to use the Revolution as a tool to break the hold of traditional religious authority. Here’s the description from the Princeton website:

k11021In the years between the Revolutionary War and the drafting of the Constitution, American gentlemen—the merchants, lawyers, planters, and landowners who comprised the independent republic’s elite—worked hard to maintain their positions of power. Gentlemen Revolutionaries shows how their struggles over status, hierarchy, property, and control shaped the ideologies and institutions of the fledgling nation.

Tom Cutterham examines how, facing pressure from populist movements as well as the threat of foreign empires, these gentlemen argued among themselves to find new ways of justifying economic and political inequality in a republican society. At the heart of their ideology was a regime of property and contract rights derived from the norms of international commerce and eighteenth-century jurisprudence. But these gentlemen were not concerned with property alone. They also sought personal prestige and cultural preeminence. Cutterham describes how, painting the egalitarian freedom of the republic’s “lower sort” as dangerous licentiousness, they constructed a vision of proper social order around their own fantasies of power and justice. In pamphlets, speeches, letters, and poetry, they argued that the survival of the republican experiment in the United States depended on the leadership of worthy gentlemen and the obedience of everyone else.

Lively and elegantly written, Gentlemen Revolutionaries demonstrates how these elites, far from giving up their attachment to gentility and privilege, recast the new republic in their own image.

 

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Call for Papers: The Legitimate Scope of Religious Establishment (March 7-9, 2016)

The Fondazione Studium Generale Marcianum in Venice has issued a call for papers for a conference, “The Legitimate Scope of Religious Establishment, to take place on March 7-9, 2016:

 How best to deal with the relationship between law and religion is one of the fundamental questions that every liberal democratic country must encounter. Comparative constitutionalism worldwide sees a large spectrum of state and religion models. The American model of separation, for instance, is an exception in liberal-democratic countries, where one can find a variety of ways in which religions get support from the state. In some democracies there is even explicit acknowledgement of one religion as the official religion of the state.

While it is clear that most democracies reject the idea that religion should be privatized, one is still hard pressed to ask: What are the essential features of establishment regimes? Should any limits be set to the establishment of religion? Are there any means of support that should necessarily be ruled out? May a decent state grant preferential treatment to one religion over other religions (or some of them)? If so, on what legitimate basis could this be done, and in what ways?

This workshop will be devoted to a discussion of these questions and other related topics. We are especially focused on papers that address normative questions about establishment of religion from a particular point of view, but comparative papers are welcome too. The keynote speaker will be Prof. Joseph Weiler.

Scholars are invited to submit a 2-3 page abstract (double-spaced) by April 15th, 2015. Abstracts will be evaluated by the organizing committee and decisions made in May 2015. Please direct all abstracts and queries to: gideon.sapir@biu.ac.il or andrea.pin@unipd.it.

Posted on by Marc O. DeGirolami

The Connection of Separationism and Limited Government

In rereading a wonderful piece by Professor Michael McConnell about Edmund Burke’s view of the relationship between an established religion and a regime of toleration of religion, I came across this deeply insightful discussion of the close connection of a separationist idea of religion and government (as envisioned by Thomas Jefferson, for example) and the idea that government itself had very limited functions in the first place:

There is a close, but generally unrecognized, connection between the idea of the “Wall of Separation” and the idea of a radically limited government. Once government shakes off its limited role and concerns itself with the general welfare of the people, including their cultural and intellectual lives, it has leapt the “Wall” and entered the traditional sphere of religion. In contrast to many of our Founders, Burke had a more modern conception of the jurisdiction of the state, which did not permit him the easy answer of a “Wall of Separation.” If the government is “a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection,” then it necessarily will be conveying a collective teaching on science, art, virtue, and perfection (whether we label the teaching a “religion” or not). It follows not that an establishment is desirable, but that it is inescapable. Some sort of opinions will necessarily guide the state in its “superintending control over…the publicly propagated doctrines of men.” If the Jeffersonian-Madisonian ideal of the limited state is abandoned as naive or outmoded, then the serious questions become how to protect against arbitrary or tyrannical use of this power and how to respect the legitimate rights of those who disagree with the official orthodoxy.

Michael W. McConnell, Establishment and Toleration in Edmund Burke’s ‘Constitution of Freedom,’ 1995 Supreme Court Review 393, 444-45 (with citations to Burke’s Reflections on the Revolution in France and his Speech on the Petition of the Unitarians).