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 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 news stories from around the web:

Around the Web

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

Human Rights As a Religion

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Roger Scruton

Check out this superb essay on the Heritage website by philosopher Roger Scruton (left), “The Future of European Civilization: Lessons for America.” There’s much to ponder, but I’d like to focus on just one point. Scruton argues that “Human Rights” has replaced Christianity as the religion of Europe’s elites.

Human Rights purports to provide a grounding for morality and social order—what Christianity used to do. The problem, Scruton says, is that Human Rights is itself without foundation and therefore cannot play the role people wish to assign it:

“If you ask what religion commands or forbids, you usually get a clear answer in terms of God’s revealed law or the Magisterium of the church. If you ask what rights are human or natural or fundamental, you get a different answer depending on whom you ask, and nobody seems to agree with anyone else regarding the procedure for resolving conflicts.

“Consider the dispute over marriage. Is it a right or not? If so, what does it permit? Does it grant a right to marry a partner of the same sex? And if yes, does it therefore permit incestuous marriage too? The arguments are endless, and nobody knows how to settle them.…

“We are witnessing, in effect, the removal of the old religion that provided foundations to the moral and legal inheritance of Europe and its replacement with a quasi-religion that is inherently foundationless. Nobody knows how to settle the question whether this or that privilege, freedom, or claim is a “human right,” and the European Court of Human Rights is now overwhelmed by a backlog of cases in which just about every piece of legislation passed by national parliaments in recent times is at stake.”

It’s an important point, and Scruton makes it with his usual grace and insight. He’s correct that the left often talks about Human Rights as though it were a kind of religion and, in fact, an improvement on the old faith. For example, in his recent book, Christian Human Rights, which I review in the current issue of the magazine, First Things, Harvard scholar Samuel Moyn compares Human Rights with Christianity, and concludes that Human Rights has the potential to do a superior job in improving people and making the world a more moral place.

Scruton is right, too, that competing understandings of Human Rights exist, and that they lead to different practical results in some cases. For example, a Catholic understanding, based on an objective conception of human nature and human dignity, does not allow for same-sex marriage as a human right. By contrast, the dominant secular understanding, based on the value of subjective choice, does. In the contemporary West, the latter view dominates. In the global context, however, it’s not so clear. In addition to the Catholic understanding, there are also Islamic and Orthodox Christian conceptions of human rights that differ markedly from the secular, subjective version—as well from each other.

The drafters of the Universal Declaration of Human Rights (1948) famously avoided these debates. Philosophical agreement would be unnecessary, they thought, as long as nations signed up for the basic idea of human rights. Besides, nations would always retain some discretion in applying the so-called “universal” rights in the context of their own cultures. But it’s becoming increasingly difficult to ignore debates about the grounding for human rights now, and aside from the power of office – “we control international human rights organizations and you don’t”– there doesn’t seem a clear way to resolve them.

Nonetheless, Scruton overstates his case a bit. It’s true that there is much disagreement about Human Rights at the global level. But within Europe? I wonder whether the absence of agreement on particular cases makes today’s commitment to Human Rights all that different, as a practical matter, from yesterday’s commitment to Christianity. It’s not like Christians have always agreed among themselves on what Christianity requires for law and politics, either. (See: The Protestant Reformation). May Christians divorce and remarry? May they use artificial contraception? Some Christian communions say yes, others no. Do these disagreements mean Christianity is useless as a means of ordering society? I wouldn’t think so. Besides, even if one disagrees with it, there is a consistent European Court jurisprudence on many human-rights questions.

I suppose the response would go something like this. Fundamentally, Human Rights – at least, the dominant secular version – denies the basis for any objective truth claims. So there’s no way to resolve any issue, other than deferring to individual subjectivity, which is no basis for a legal system. It’s not a matter of a few difficult cases here and there, but the whole run of possible cases. Without a commitment to some objective value, something other than individual choice, the whole system will ultimately collapse.

I’ll need to think about this more. Whatever your view, Scruton’s essay is, as always, profound, elegant, and thought provoking.

Adrian, “Religious Freedom at Risk”

In October, Springer will release “Religious Freedom at Risk: The EU, French Schools, and Why the Veil Was Banned,” by Melanie Adrian (Carleton University). The publisher’s description follows:

This book examines matters of religious freedom in Europe, considers the work of the European Court of Human Rights in this area, explores issues of multiculturalism and secularism in France, of women in Islam, and of Muslims in the West. The work presents legal analysis and ethnographic fieldwork, focusing on concepts such as laïcité, submission, equality and the role of the state in public education, amongst others. Through this book, the reader can visit inside a French public school located in a low-income neighborhood just south of Paris and learn about the complex dynamics that led up to the passing of the 2004 law banning Muslim headscarves. The chapters bring to light the actors and cultures within the school that set the stage for the passing of the law and the political philosophy that supports it. School culture and philosophy are compared and contrasted to the thoughts and opinions of the teachers, administrators and students to gage how religious freedom and identity are understood. The book goes on to explore the issue of religious freedom at the European Court of Human Rights. The author argues that the right to religious freedom has been too narrowly understood and is being fenced in by static visions of Islam. This jeopardizes the idea of religious freedom more broadly. By becoming entangled with regional and domestic politics, the Court is neglecting important nuances and is jeopardizing secularism, pluralism and democracy. This is a highly readable and accessible book that will appeal to students and scholars of law, anthropology, religious studies and philosophy of religion.

Center for Law and Religion Hosts Dr. Pasquale Annicchino

MLM Class 1
Professors DeGirolami, Annicchino and Movsesian with Seminar Students

We were delighted to have our old friend, Dr. Pasquale Annicchino of the EsportareEuropean University Institute in Florence, visit with us yesterday. Pasquale gave a presentation in Mark’s Comparative Law & Religion seminar about his brand new book, Esportare La Libertà Religiosa: Il Modello Americano Nell’arena Globale [“Exporting Religious Freedom: The American Model in the Global Arena”] (Il Mulino). (For those that may not know, il Mulino is Italy’s most prestigious publisher). The book’s primary concern is about the influence of the International Religious Freedom Act of 1998 on international conceptions of religious liberty, and the different sorts of ideological and related resistance that the American model has encountered. The book has been discussed and reviewed in Il Corriere della Sera, Il Foglio, and The Economist.

Here’s the description of the book:

Con l’adozione nel 1998 dell’lnternational Religious Freedom Act gli Stati Uniti hanno posto al centro della loro politica estera la protezione e la promozione del diritto di libertà religiosa. Le istituzioni e le politiche che sono seguite hanno permesso agli Stati Uniti di ergersi a modello di iniziativa per la tutela della libertà religiosa nell’arena globale. Lungi dal rimanere un esperimento isolato, l’iniziativa statunitense ha influenzato l’Unione Europea, il Canada, il Regno Unito e l’Italia. Il volume analizza il modello normativo-istituzionale americano e passa in rassegna i sistemi che ad esso si sono ispirati. Ne risulta una libertà religiosa indebolita nella sua concezione universale ed unitaria e minacciata da specifici interessi politici e nazionali.

[With the adoption in 1998 of the International Religious Freedom Act the United States placed the protection and promotion of religious freedom at the center of its foreign policy. The institutions and politics that followed allowed the United States to raise up its initiative as a model for the defense of religious freedom in the global arena. Far from being an isolated experiment, the US initiative has influenced the European Union, Canada, the United Kingdom, and Italy. This volume analyzes the American normative-institutional model and surveys the systems that it has inspired. What has resulted is the weakening of religious freedom as a universal conception, threatened by specific political and national interests.]

Ironies in Indiana

Some readers have asked me what I think about the Indiana RFRA controversy, as an academic who studies law and religion. To my mind, opponents of the law have succeeded in creating a false sense of crisis about the evil this allegedly unprecedented law would unleash in America. In this, they have been greatly assisted by the media’s framing of the issue and and by the support of corporate titans like Apple and Walmart, which have decided to intervene in the dispute–incidentally proving, as Justice Alito argued in Hobby Lobby, that for-profit corporations sometimes do express goals other than merely making money.

In addition, it seems to me that the controversy contains three very significant ironies, two for the law’s opponents and one for its supporters.

First, notwithstanding opponents’ efforts to portray the Indiana statute as an innovation, the balancing test it establishes is nothing new. The test, which holds that government cannot impose substantial burdens on citizens’ religious exercise without showing a compelling need to do so, and without choosing the least-restrictive means for doing so, was American constitutional law for decades, until the Supreme Court jettisoned it for most purposes in 1990. It is the test embodied in the federal version of RFRA, enacted without opposition more than 20 years ago; in the many state versions of RFRA; and in the constitutional law of many other states. Indeed, according to scholars Cole Durham and Brett Scharffs, the compelling-interest test is the majority rule in the United States today. It’s true that there are a couple of differences in the Indiana law, but those differences are pretty minor, and anyway the debate has not focused on them.

Even more: something like the compelling-interest test is the rule in liberal societies around the world. The European Convention on Human Rights, for example, provides that a member state can interfere with citizens’ exercise of religion only where the state shows that the interference is “necessary” to achieve an important interest. Many countries have similar balancing tests, including Canada, Israel, and South Africa. From a global perspective, there is nothing unusual about the Indiana statute.

Second, the Indiana statute leaves ultimate determinations to the courts. It does not, as some of its opponents  misleadingly claim, legalize discrimination against gays and lesbians. In the unlikely event that an Indiana business refused, in violation of any applicable anti-discrimination laws, to serve gay people, and claimed a religious justification for doing so (how many such businesses are there, anyway?), the case would proceed to litigation, in which a court would determine (1) whether requiring a business to serve gay customers is, genuinely,  a substantial burden on its religious exercise; (2) if so, whether the state’s interest in preventing discrimination against gays is compelling; and (3) whether there is some way other than requiring the business to serve gay customers that could advance that interest equally as well. I wouldn’t bet on the business’s chances in such a lawsuit. Given the great success supporters of gay rights have had in American courts in recent years, it is ironic that they would lose faith in the courts now.

And this leads to the third irony, one for the statute’s supporters. Some supporters evidently are confident the Indiana statute would allow a business to refuse, on religious grounds, to participate in same-sex wedding ceremonies—caterers and photographers, for example.  (This is not the same thing as refusing generally to serve gays and lesbians, incidentally, and it is not helpful to conflate the two situations). That’s why they are fighting so hard for the law. But it is not at all clear they are correct. Whatever one thinks about the merits of a religious exemption in these circumstances, it is uncertain that a court would actually rule in favor of the business. Maybe the business would prevail in a RFRA lawsuit, maybe not.

On the basis of distortions, mistakes, and uncertain predictions, we seem ready to abandon a foundational principle that exists, not only in American law, but in legal systems across the world. The New York Times refers, without irony, to “so-called religious freedom laws.” On Morning Joe this week, Mika Brzezinski suggested that stopping the Indiana statute would not be enough; it’s time, she hinted, to revisit the federal RFRA itself.  We seem ready, in other words, to take courts out of the business of protecting religious minorities. Does that seem a good idea?