Posted on by Michael Helfand

The Role of Private Law in Litigating Religion: Part I

In my last post, I argued that there might be more room for courts to enforce arbitration agreements that require courts to interpret inherently religious provisions.  The example was a provision that required a matter to be arbitrated by “three Orthodox rabbis.”  By contrast, a New York court – in keeping with prevailing interpretation of the Establishment Clause – refused to enforce the provision on the grounds that doing so would require judicial resolution of a religious question.

Mark followed up with a great point: isn’t the best way to deal with these problems by having religious arbitration provisions simply specify a particular institution to appoint religious arbitrators?  This way, courts could enforce the provision without resolving a religious question and then, after the arbitrators issued an award, they could enforce the award by deferring to the arbitrators’ award.  Such an approach ensures the judicial enforcement of a religious arbitration award without any of endorsement or entanglement problems.

Mark is undoubtedly correct; the existence of permanent religious arbitration courts are an important mechanism for insulating religious dispute resolution Read more

Posted on by Mark Movsesian

Chicago-Kent Law Review to Publish Symposium on Neutrality

The Chicago-Kent Law Review will publish a symposium, “The Future of the Establishment Clause: Neutrality, Religion, or Avoidance?”, next month. Edited by Bruce Ledewitz (Duquesne), the symposium will discuss

the future of the Establishment Clause, confronting three interrelated questions: 1) If the Court is to reaffirm government neutrality toward religion, can such neutrality coexist with resurgent popular religious belief at the same time that it serves the needs of a growing national secularism?; 2) Conversely, if the Court is to permit government embrace of religion, can it do so without alienating the large numbers of  nontheistic believers and nonbelievers?; and 3) How far can the Court take the turn to standing before it undermines noneconomic approaches to injury-in-fact in all of constitutional law and before it renders even classic violations of the Establishment Clause essentially unchallengeable?

Contributors include Richard Albert (Boston College), Christopher Lund (Wayne State), Samuel Levine (Touro), Zachary Calo (Valparaiso), and Mark Rahdert (Temple). For more information, please contact Editor in Chief Maggie Master at the Chicago-Kent Law Review.

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Meyerson, “Endowed by Our Creator: The Birth of Religious Freedom in America”

Endowed by Our Creator: The Birth of Religious Freedom in AmericaAt the end of the month, Yale University Press will publish Endowed by Our Creator: The Birth of Religious Freedom in America (Yale April 2012) by Michael I. Meyerson (U. of Baltimore School of Law). The publisher’s description follows.

The debate over the framers’ concept of freedom of religion has become heated and divisive. This scrupulously researched book sets aside the half-truths, omissions, and partisan arguments, and instead focuses on the actual writings and actions of Washington, Adams, Jefferson, Madison, and others. Legal scholar Michael I. Meyerson investigates how the framers of the Constitution envisioned religious freedom and how they intended it to operate in the new republic.

Endowed by Our Creator shows that the framers understood that the American government should not acknowledge religion in a way that favors any particular creed or denomination. Nevertheless, the framers believed that religion could instill virtue and help to unify a diverse nation. They created a spiritual public vocabulary, one that could communicate to all—including agnostics and atheists—that they were valued members of the political community. Through their writings and their decisions, the framers affirmed that respect for religious differences is a fundamental American value. Now it is for us, Meyerson concludes, to determine whether religion will be used to alienate and divide or to inspire and unify our religiously diverse nation.

Posted on by Marc O. DeGirolami

Justice Scalia at St. John’s Law School

The Center for Law and Religion is pleased to announce that Justice Antonin Scalia will visit us at St. John’s Law School next Monday, April 2, at 4:15 pm.  His is the fifth session in our ongoing seminar, Colloquium in Law: Law and Religion.  Justice Scalia will discuss his opinions in several of the Court’s religion clause cases, focusing especially on Employment Division v. Smith; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah; Lee v. Weisman; Bd. of Education of Kiryas Joel Village Sch. Dist. v. Grumet; Lamb’s Chapel v. Center Moriches Union Free Sch. Dist.; Capitol Square Review and Advisory Bd. v. Pinette; and McCreary County v. ACLU.

Academics in the New York area and beyond are welcome to attend, but for this visit, an RSVP to me or to Mark is essential.

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Crossroads: Professor Goldford to Lecture on Interfaith Understanding in America

In relation to my recent post, Goldford:  The Constitution of Religious Freedom, Professor Dennis J. Goldford, of Drake University, will be speaking on March 16 at the Interfaith Alliance of Iowa monthly series, Crossroads:  A Project About Civility.  Prof. Goldford will discuss his recently published book, The Constitution of Religious Freedom: God, Politics, and the First Amendment (Baylor, 2012).  Please see the Interfaith Alliance’s announcement for more details.

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Goldford: The Constitution of Religious Freedom

This month, Baylor University Press publishes The Constitution of Religious Freedom:  God, Politics, and the First Amendment by Dennis J. Goldford.  Goldford, Professor of Politics at Drake University in Iowa, argues that the Religion Clauses of the First Amendment do not create a national religious identity, but, instead, create a religious liberty located squarely in the individual.  The publisher’s abstract follows:

In a time when the question of American religious identity underlies much political conversation that fills the public square, Dennis Goldford directs his readers to consider the First Amendment. The founding fathers’ words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” are the constitutional means of ensuring, however imperfectly, the American freedom to stand for something sacred. In his analysis, Goldford ably demonstrates that the very nature of these religion clauses establishes protection not for religion but for religious freedom. The Constitution of Religious Freedom argues that religious identity inheres not in the nation, but in the individual citizen.

Posted on by Marc O. DeGirolami

Haupt, “Religion-State Relations in the United States and Germany”

Conceptions of neutrality in church-state relations are increasingly important these days.  But a very interesting feature of the neutrality debates has been the plural and oftentimes incompatible conceptions of neutrality that have emerged.  Formal neutrality, for example, is quite different from (and sometimes hostile to) what preeminent church-state scholar Douglas Laycock has called “substantive neutrality.”

Alongside the splintering of the concept of neutrality into plural conceptions in this country, there is now emerging very interesting scholarship on the comparative study of neutrality.  My colleague, Mark, is doing some excellent work in this regard.  And I just was made aware of this very interesting comparative study by Claudia E. Haupt (George Washington), Religion-State Relations in the United States and Germany: The Quest for Neutrality (Cambridge UP 2012).  The publisher’s description follows.

This comparative analysis of the constitutional law of religion-state relations in the United States and Germany focuses on the principle of state neutrality. A strong emphasis on state neutrality, a notoriously ambiguous concept, is a shared feature in the constitutional jurisprudence of the US Supreme Court and the German Federal Constitutional Court, but neutrality does not have the same meaning in both systems. In Germany neutrality tends to indicate more distance between church and state, whereas the opposite is the case in the United States. Neutrality also has other meanings in both systems, making straightforward comparison more difficult than it might seem. Although the underlying trajectory of neutrality is different in both countries, the discussion of neutrality breaks down into largely parallel themes. By examining those themes in a comparative perspective, the meaning of state neutrality in religion-state relations can be delineated.

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Schwartzman on Questioning the Special Treatment of Religion

Micah Schwartzman  (U. of Virginia School of Law) has posted What if Religion is not Special? The abstract follows.

This Article argues that leading accounts of the First Amendment’s Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the Religion Clauses. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under non-originalist theories, there may be interpretations of the constitutional text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.

Posted on by Marc O. DeGirolami · 4 Comments

Classic Revisited: Smith, “Foreordained Failure”

Today’s classic revisited is Steven D. Smith’s book, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995).  If I were constructing a top all-time list of law and religion works, this book would surely make my top 3.  The book is a classic in the law and religion canon because it is really the first explicitly to resist the notion that the religion clauses were meant to protect any single principle or value at all.  They instead reflected a compromise among people who thought very differently about the proper relationship of church and state.  The book is partially historical and partially theoretical; the latter sections examine the possibility of an “unprincipled” approach to religious liberty, and what it would look like.

As with all of Smith’s work, the book is a model of clear, accessible, and always insightful writing.  If you are looking for a lucid book which will appeal equally to people who have studied these issues and a more generally educated audience, this is it.  More than this, Smith’s book has inspired a rising generation of new writers (I count myself in this group) to explore themes which he was the first to illuminate.  Here’s just a brief portion (at 11-12) to give you a rough feel for the book’s quality:

[W]e might acknowledge that there is no single or self-subsisting “principle” of religious freedom; there is only a host of individuals with a host of different opinions about how much and what kind of scope government ought to give to the exercise of religious beliefs and practices.  Aquinas’s views on this subject were different from Cromwell’s; Cromwell’s were different from Madison’s.  But all these figures believed in some version of religious freedom; they believed, that is, in giving some scope to divergent religious beliefs or practices.  And it is simply misleading to suppose that there is a univocal principle of religious freedom, hovering in some Platonic realm independent of these different opinions — a principle of which the opinions of Aquinas, Cromwell, and Madison were more or less faithful copies.

It is important to clarify how this more pluralistic approach to the question differs from an approach that at least tacitly conceives of religious freedom as a unitary principle or singular ideal.  In acknowledging a variety of versions of religious freedom, we can still insist that some opinions about the proper scope of religious freedom are more attractive, or more rationally defensible, than others.  I might believe, for example, that the arguments for the positions I take on the issues of religious freedom are more persuasive than the arguments for the positions taken by Cromwell — or Justice Brennan.  This disagreement, however, merely entails the familiar sort of debate about whose arguments are stronger or whose position is more attactive or plausible.  There is little to be gained by trying to frame the debate as one about who really perceives the true meaning of “the principle of religious freedom.”  Consequently, although I might assert that those who disagree with me are “wrong” or that their arguments are “weak” or “implausible,” I would have no justification at all for saying, for example, that they have failed to understand the very principle that they purport to respect or that in professing to respect that principle they are being thoughtless or hypocritical.

Likewise, a more pluralistic approach to religious freedom would not prevent us from discerning in Western history a kind of progress toward the achievement of more complete religious freedom.  This characterization might simply mean that current notions of religious freedom allow greater scope for diverse religious conduct and belief.  It might also mean that we think the reasons supporting current opinions are more plausible than those invoked in behalf of earlier views.  Conversely, it is unnecessary and potentially misleading to say that “the principle” of religious freedom was somehow implicit in but inadequately expressed by earlier positions, or that Western history reflects an ongoing, ever more perfect realization of the principle of religious freedom.

Posted on by Marc O. DeGirolami

Unanimity in Religion Clause Decisions

The Court’s decision was unanimous in Hosanna-Tabor.  Given some of the language in Chief Justice Roberts’ decision, I find that rather surprising — particularly because some thought that there was a reasonable chance that we would see multiple opinions in this case going in all sorts of directions.

Unanimity in religion clause cases is uncommon.  In part that’s because they tend generally to be fairly controversial, in part because (as Greg Sisk and Michael Heise have shown) they tend to map onto a Justice’s political ideology (not always, but fairly often).  Unanimity as to the judgment happens once in a while.  Unanimity as to the judgment and the reasoning is extremely rare.

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