Ten Napel, “Constitutionalism, Democracy and Religious Freedom”

In May, Routledge will release “Constitutionalism, Democracy and Religious Freedom: To be Fully Human,” by Hans-Martien ten Napel (Leiden University).  The publisher’s description follows:

In both Europe and North America it can be argued that the associational and institutional dimensions of the right to freedom of religion or belief are increasingly 9781138647152coming under pressure. This book demonstrates why a more classical understanding of the idea of a liberal democracy can allow for greater respect for the right to freedom of religion or belief.

The book examines the major direction in which liberal democracy has developed over the last fifty years and contends that this is not the most legitimate type of liberal democracy for religiously divided societies. Drawing on theoretical developments in the field of transnational constitutionalism, Hans-Martien ten Napel argues that redirecting the concept and practice of liberal democracy toward the more classical notion of limited, constitutional government, with a considerable degree of autonomy for civil society organizations would allow greater religious pluralism. The book shows how, in a postsecular and multicultural context, modern sources of constitutionalism and democracy, supplemented by premodern, transcendental legitimation, continue to provide the best means of legitimating Western constitutional and political orders.

On the Virginia Statute for Religious Freedom

At the Library of Law and Liberty this morning, I have a post on the Virginia Statute of Religious Freedom of 1786, the anniversary of which America marked last week. Among other things, I describe how Jefferson deftly combines Enlightenment and Evangelical Christian arguments to support religious freedom. Here’s a sample:

It’s fascinating, therefore, to go back and read the statute in its entirety. Three things stand out. First is the skillful way Jefferson combines two dramatically different strands of thought to justify religious freedom—Enlightenment Liberalism and Evangelical Christianity. (As a good lawyer, Jefferson knew how to make an argument in the alternative). “Truth is great and will prevail if left to herself,” the preamble declares; “she is the proper and sufficient antagonist to error.” Through free debate, people could reason their way to truth, in religion as in other matters. No justification existed, therefore, for prohibiting people from expressing their religious opinions and trying to persuade others.

This Enlightenment defense of free inquiry was not likely to convince everyone, though, so Jefferson added an argument from Evangelical Christianity as well. Religious freedom was the plan of “the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either.” Establishments had resulted in “false religions over the greatest part of the world,” including, presumably, Catholicism and Islam. The point was clear: a good Evangelical Christian should support religious freedom, for Christianity’s sake. This combination of Evangelical and Enlightenment reasoning is a major theme in American church-state law, and it’s interesting to see how far back it goes.

That Jefferson, he was one shrewd lawyer. You can read the whole post here.

Conference on the EU, UK, and Freedom of Religion

Today, the European Union Office of The Church of Jesus Christ of Latter-day Saints hosts an event entitled European Union, United Kingdom, and Commonwealth: Cooperation in the Promotion of Freedom of Religion or Belief in the Renaissance Brussels Hotel, Belgium. The host’s description of the event follows:

religious-freedom-eventWe are proud to host an outstanding event on Article 18 UDHR from a truly international perspective.

We will be honoured to hear from our keynote speaker, Dr. Ján Figel’, Special Envoy for the promotion of freedom of religion or belief (‘FoRB’) outside the European Union. His perspective on #FoRB is informed by his rich international experience in his current role as well as by his previous experience within the #EU.

Dr. Figel’ will be joined by a panel chaired by Mr. Andrew Lewer, Member of the European Parliament and Member of the European Parliament Intergroup on FoRB & Religious Tolerance. Speakers with international perspectives from the United Kingdom and the Commonwealth will include: Mr. David Rutley,Member of the United Kingdom Parliament for Macclesfield and Member of the UK All-Party Parliamentary Group on FoRB (tbc); Mr. Simon McCrossan, barrister and Head of Policy with the United Kingdom Evangelical Alliance; Professor Neville Rochow SC, Government Relations Representative in our EU Office, a barrister from Australia with wide-ranging experience in FoRB in that country prior to joining us here in the EU; Professor Pasquale Annichino, Fellow Robert Schuman Centre for Advanced Studies, European University Institute, and Member of the Italian Council for the relationships with Muslim Communities at the Italian Ministry of Interior.

Invitations to actively participate have been extended also to representatives of the European External Action Service and Members of the European Parliament, diplomats and Brussels-based ambassadors from Commonwealth countries. Updates on the program will be posted on our event page.

Pearson, “Proportionality, Equality Laws and Religion”

In March, Routledge will release “Proportionality, Equality Laws and Religion:  Conflicts in England, Canada and the USA,” by Megan Pearson (University of Southampton).  The publisher’s description follows:

This book considers how the law should manage conflicts between the right of religious freedom and that of non-discrimination on the grounds of sexual 9781472456502orientation. These disputes are often high-profile and frequently receive a lot of media attention and public debate. Starting from the basis that both these rights are valuable and worthy of protection, but that such disputes are often characterised by animosity, it contends that a proportionality analysis provides the best method for resolving these conflicts. The work takes a comparative approach, examining the law in England and Wales, Canada and the USA and examines four main areas of law, considering how a proportionality approach could be used in each. The book will be an invaluable resource for students and researchers in the areas of Public Law, Human Rights Law, Law and Religion, Discrimination Law, and Comparative Law.

Weatherford, “Genghis Khan and the Quest for God”

I know almost nothing about Genghis Khan and the Mongol Empire. And so it’s not fair for me to criticize a book by an expert who has spent many years studying the subject. Still, I’ll go out on a limb and say I am deeply skeptical of the claim that Americans owe to the Mongols our principle of religious freedom. I expect the Framers would have been skeptical, too, though the possibility does open up new avenues for Originalist research.

That we owe our religious freedom to the Mongols is one of the claims made in this new book from Penguin Random House, Genghis Khan and the Quest for God, by anthropologist Jack Weatherford. Judge for yourselves. The publisher’s description follows (H/T: Chris Borgen):

 

 

Around the Web

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

Vickers, “Religious Freedom, Religious Discrimination and the Workplace” (2d ed.)

In March, Hart Publishing released the second edition of Religious Freedom, Religious Discrimination and the Workplace by Lucy Vickers (Oxford Brookes University). The publisher’s description follows:

religious-freedom-and-religious-discriminationThis book considers the extent to which religious interests are protected at work, with particular reference to the protection against religious discrimination provided by the Equality Act 2010. It establishes a principled basis for determining the proper scope of religious freedom at work, and considers the interaction of freedom of religion with the right not to be discriminated against on grounds of religion and belief. The book locates the debates surrounding religion and belief equality within a philosophical and theoretical framework in which the importance of freedom of religion and its role within the workplace are fully debated.This second edition is fully revised and updated in the light of recent case law from the UK and the European Court of Human Rights, which deals with religious discrimination and freedom of religion.

 

Morsink, “The Universal Declaration of Human Rights and the Challenge of Religion”

In January, the University of Missouri Press will release “The Universal Declaration of Human Rights and the Challenge of Religion,” by Johannes Morsink (Drew University).  The publisher’s description follows:

Repulsed by evil Nazi practices and desiring to create a better world after the productimagehandlerdevastation of World War II, in 1948 the UN General Assembly adopted the Universal Declaration of Human Rights (UDHR). Because of the secular imprint of this text, it has faced a series of challenges from the world’s religions, both when it was crafted and in subsequent political and legal struggles.

The book mixes philosophical, legal, and archival arguments to make the point that the language of human rights is a valid one to address the world’s disputes. It updates the rationale used by the early UN visionaries and makes it available to twenty-first-century believers and unbelievers alike. The book shows how the debates that informed the adoption of this pivotal normative international text can be used by scholars to make broad and important policy points.

No Protestants on the Court

At the Liberty Law site this morning, I have a post on the absence of Protestant Christians on the Supreme Court. In historical terms, the lack of Protestants is a striking anomaly–the large majority of the 112 men and women who have sat as Justices over time has been Protestant. What explains the current situation, and might it have an effect on American law?

With regard to the first question, I argue that the absence of Protestants as to to with larger social and cultural questions. With respect to the second question, I argue, it depends on what sort of Protestant, and what sort of legal issues, one has in mind:

If Reno is right about the transformation of Mainline Protestantism into a post-Protestant WASP ethos, then it shouldn’t matter whether actual Mainline Protestants are on the Court. Given the composition of the legal profession, most people likely to be appointed to the Court will have post-Protestant WASP values, whatever their particular faith tradition. Recall my example of the Catholic or Orthodox 1L at Harvard. Post-Protestant WASP values, in other words, will be represented even without actual Mainline Protestants.

On the other hand, the absence of Evangelicals might make a difference to the Court’s decisions, at least with regard to some issues—for example, questions regarding religious liberty. Notwithstanding the Supreme Court’s 1990 decision in Employment Division v. Smith, which abandoned the test for constitutional purposes, most hot-button religious liberty cases nowadays turn on some version of the “compelling interest” test. This test holds that the government cannot substantially burden a person’s exercise of religion unless it has a compelling interest for doing so and has chosen the least restrictive means. This is the test contained in the Religious Freedom Restoration Act (RFRA), for example—the statute at issue in the Court’s recent decisions regarding the contraception mandate in Obamacare.

The compelling interest test requires many judgment calls: What is a “substantial burden” on religious exercise? What is a “compelling interest”? Is there a “less restrictive means” available? (In fact, it was the necessity of such intuitive judgments that led the Smith Court to abandon the compelling interest test in the constitutional context). And judgment calls depend on the intuitions of the people doing the judging. An Evangelical Christian likely would have different intuitions about these matters than a post-Protestant WASP who views religions as more or less interchangeable, and anyway not all that important. Someone who views religion as a vital guide to behavior might be more skeptical of claims that a rule does not “substantially burden” religious exercise, or that the government has offered a “compelling” interest to justify the intrusion.

In short, on at least some questions, the religious background of the justices could well make a difference, and the absence of Evangelicals on the Court affect the course of the law. You can read the whole post here.

Tebbe, “Religious Freedom in an Egalitarian Age”

In January, Harvard University Press will release Religious Freedom in an Egalitarian Age by Nelson Tebbe (Brooklyn Law School). )The Center co-sponsored a symposium on Nelson’s book earlier this fall). The publisher’s description follows:

religious-freedom-in-an-egalitarian-ageTensions between religious freedom and equality law are newly strained in America. As lawmakers work to protect LGBT citizens and women seeking reproductive freedom, religious traditionalists assert their right to dissent from what they see as a new liberal orthodoxy. Some religious advocates are going further and expressing skepticism that egalitarianism can be defended with reasons at all. Legal experts have not offered a satisfying response—until now.

Nelson Tebbe argues that these disputes, which are admittedly complex, nevertheless can be resolved without irrationality or arbitrariness. In Religious Freedom in an Egalitarian Age, he advances a method called social coherence, based on the way that people reason through moral problems in everyday life. Social coherence provides a way to reach justified conclusions in constitutional law, even in situations that pit multiple values against each other. Tebbe contends that reasons must play a role in the resolution of these conflicts, alongside interests and ideologies. Otherwise, the health of democratic constitutionalism could suffer.

Applying this method to a range of real-world cases, Tebbe offers a set of powerful principles for mediating between religion and equality law, and he shows how they can lead to workable solutions in areas ranging from employment discrimination and public accommodations to government officials and public funding. While social coherence does not guarantee outcomes that will please the liberal Left, it does point the way toward reasoned, nonarbitrary solutions to the current impasse.

%d bloggers like this: