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Around the Web

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

  • The 10th Circuit held that that the nondiscrimination requirements of Colorado’s Universal Preschool Program do not violate the free exercise or expressive association rights of Catholic schools by excluding them from the program due to their policy of considering the sexual orientation and gender identity of applicants and their parents in making admissions decisions. The Court cited the program’s general applicability in reaching their decision that it does not discriminate against religious schools specifically.
  • A federal district court in Idaho ruled that a charter school violated Truth Family Bible Church’s First Amendment rights when it canceled a lease that allowed the church to hold Sunday services inside its gymnasium.
  • Students and former students at Brooklyn yeshivas, as well as parents, filed a class action lawsuit claiming that New York allows yeshivas to meet state education requirements “without reliably teaching core subjects such as English, math and civics.”
  • An Illinois state appellate court held that the state’s Insurance Abortion Coverage Mandate did not violate a Baptist group’s rights under the Illinois Religious Freedom Restoration Act. The Court reasoned that since the group is neither required to provide insurance that is regulated by the Illinois Department of Insurance, or any insurance at all for that matter, nor subject to any tax or penalty for failing to provide this type of insurance, the regulation did not violate the group’s rights.
  • King Charles announced that he has approved the nomination of Bishop Sarah Mullally for election by the College of Canons of Canterbury Cathedral as Archbishop of Canterbury. Bishop Mullally would be the first woman to hold the position.
  • The FDA recently approved a generic version of the abortion pill, mifepristone. Conservatives objected to the move, including Sen. Bill Cassidy (R-La.), who called approval of the pill “a betrayal.”

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Leeson on The Law and Economics of Monastic Malediction

Peter T. Leeson (George Mason U.) has posted “God Damn”: The Law and Economics of Monastic Malediction. The abstract follows.

Today monks are known for turning the other cheek, honoring saints, and blessing humanity with brotherly love. But for centuries they were known equally for fulminating their foes, humiliating saints, and casting calamitous curses at persons who crossed them. Clerics called these curses “maledictions.” This article argues that medieval communities of monks and canons used maledictions to protect their property against predators where government and physical self-help were unavailable to them. To explain how they did this I develop a theory of cursing with rational agents. I show that curses capable of improving property protection when cursors and their targets are rational must satisfy three conditions. They must be grounded in targets’ existing beliefs, monopolized by cursors, and unfalsifiable. Malediction satisfied these conditions, making it an effective institutional substitute for conventional institutions of clerical property protection.

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Hill on Religious Speech

Jessie Hill (Case Western Reserve University School of Law) has posted (Dis)Owning Religious Speech. The abstract follows.

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality.

The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its own speech a facially religious monument of the Ten Commandments. The second, Salazar v. Buono, which dealt with an establishment clause challenge to a Latin cross in the middle of the Mojave Desert National Preserve, was resolved primarily on the basis of the literal ownership of the religious speech at issue in the case. What both cases have in common is a claim, on one side, that the government has improperly and unconstitutionally excluded one religious group, both literally and metaphorically, and a response, on the other side, that is formulated in the language of ownership, property, and sovereignty.

This Article explores the possible causes and implications of the Court’s recent embrace of property concepts and property rhetoric. It argues that the Court has turned to the language and even the law of property partly as a way of avoiding knotty First Amendment questions. But the rhetoric of property functions on another level, as well. Property rhetoric legitimates and naturalizes the acts of exclusion and subordination inherent in the Court’s decisions. It also gives the appearance of a concrete stake held by some in the religious majority – and a material loss that is incurred – when dominant religious symbols are removed. Ultimately, this article concludes that, for all their flaws, the endorsement test and public forum doctrine, which the Court appears to have temporarily marginalized, are superior approaches to the problem of public displays of religious symbolism.