Meshugas About Chickens

That’s the title of this post I have over at the Liberty Law blog, discussing a recent controversy in California related to Yom Kippur. A bit:

As a society becomes more secular, what happens to religious rituals, customs, and ways of life that cannot be explained or justified in secular terms? When the freedom to engage in such practices is no longer presumed to be a good because of a firm commitment to religion as a social value, little stands in the way of its becoming just one more special interest. Religious freedom is then thrown into the bin of social oddities, to be haggled over and negotiated against whatever other idiosyncratic predilections one happens to find in there.

Witness the case of United Poultry Concerns v. Chabad of Irvine. The plaintiff is a California organization devoted to “promoting the respectful and compassionate treatment of domestic fowl” that leads protests, for example, against the use of eggs in the White House Easter-Egg Roll. Indeed, UPC seems to observe a fairly regular schedule of outrage, no doubt because many holidays, religious and otherwise, tend to involve an adversarial relationship with poultry. (With Thanksgiving on the horizon, the group’s web site is showcasing a book called More Than a Meal: The Turkey in History, Myth, Ritual, and Reality.)

Over the last two weeks, UPC has been involved in a legal effort to stop a Jewish practice called kaparot that is performed on the day before Yom Kippur. Only a small number of Jews in the United States perform this ceremony, and it involves a trained rabbi swinging a chicken in the air and then slaughtering the animal. (“Kaparot” means atonement.)

The tireless Josh Blackman, who has been involved with the case, has a very complete description of the proceedings. The long and short of it is that a federal District Court judge issued a temporary restraining order against the practice earlier this month, citing a California state animal-cruelty provision, though the judge would have been well advised to consider both the federal Humane Slaughter Act and the Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah (1993) before acting. The judge ordered pre-trial conferences, briefs, and hearings to be conducted and filed immediately thereafter, right smack dab during the most important week in the Jewish calendar.

Perhaps most telling of all was that the hearing on the temporary restraining order was scheduled for October 13, the day after Yom Kippur, which Professor Blackman amusingly analogizes to scheduling a hearing for December 26 on an order to prohibit a ceremony performed on Christmas day. The judge eventually lifted the order just hours before sundown on October 12, rendering it impossible as a practical matter for the synagogue’s members to perform the ceremony.

Indeed, as Professor Blackman notes, the timing of the legal proceeding was obviously calculated by the plaintiffs to cause as much disruption and distress as it possibly could (the lawsuit could have been filed really at any other time), respectful treatment of chickens being one thing and respectful treatment of religious believers quite another. The judge seems to have been either utterly unaware of these issues or utterly uninterested in them.

Symposium: “Religious Freedom and the Common Good” (Washington D.C., Nov. 15)

On November 15, Georgetown University’s Berkley Center for Religion, Peace & World Affairs is hosting a symposium titled “Religious Freedom and the Common Good: A Capstone Symposium of the Religious Freedom Project.” The keynote address of the symposium will be delivered by United States Senator Ben Sasse. A brief description of the event follows:

Religious Freedom and the Common Good.jpgAs the culminating symposium of the Religious Freedom Project’s three-year grant from the John Templeton Foundation, this conference will explore the wide-ranging political, economic, and social dimensions of religious freedom and their enduring impact on the global common good. The RFP’s 13 associate scholars and other experts from across the academy will address a range of key questions about the broader implications of religious freedom.

Our symposium will explore the following: To what extent is religious liberty critical for human flourishing? When and how does it contribute to economic prosperity, democratization, and peace? What challenges face religious communities living under repressive governments or hostile social forces? How is the persecution of religion related to other infringements of basic human rights? What is the relationship between religious freedom and violent religious extremism, and is there a role for religious freedom in efforts to undermine radicalization and counter violent religious extremism and terrorism over the long term?

Senator Ben Sasse (R-NE) will deliver a keynote address on the promotion of international religious freedom as an urgent global imperative.

Loewe, “Of Sacred Lands and Strip Malls”

In September, Rowman & Littlefield released “Of Sacred Lands and Strip Malls: The Battle for Puvungna,” by Ronald Loewe (California State University).  The publisher’s description follows:

A twenty-two acre strip of land—known as Puvungna—lies at the edge of 9780759121607California State University’s Long Beach campus. The land, indisputably owned by California, is also sacred to several Native American tribes. And these twenty-two acres have been the nexus for an acrimonious and costly conflict over control of the land. Of Sacred Lands and Strip Malls tells the story of Puvungna, from the region’s deep history, through years of struggle between activists and campus administration, and ongoing reverberations from the conflict.

As Loewe makes clear, this is a case study with implications beyond a single controversy; at stake in the legal battle is the constitutionality of state codes meant to protect sacred sites from commercial development, and the right of individuals to participate in public hearings. The case also raises questions about the nature of contract archaeology, applied anthropology, and the relative status of ethnography and ethnohistorical research. It is a compelling snapshot of issues surrounding contemporary Native American landscapes.

An Awful Report by the USCCR

I have a post up at Law and Liberty on the recent report of the U.S. Commission on Civil Rights, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties.” It is not positive. A bit:

The recommendations begin with the ominous observation that civil rights protections ensuring nondiscrimination “are of preeminent importance in American jurisprudence.” Preeminent over what, exactly? That quickly becomes crystal clear: over religious freedom. Supreme Court decisions that the commissioners celebrate for reflecting this preeminence include Christian Legal Society v. Martinez (2011), EEOC v. Abercrombie and Fitch (2015), and Obergefell v. Hodges (2015). It is telling that the commission includes Abercrombie and Fitchan utterly unremarkable case involving the interpretation of the standard for an employer’s state of mind in a disparate treatment action under Title VII—because it thereby squeezes and deforms religious freedom into the only framework it can accept or understand: nondiscrimination.

After this, we are treated to the following hodgepodge of inanity: “Schools must be allowed to insist on inclusive values.” Apparently this is meant as a defense of Martinez; but it ought to read, “schools must be allowed to insist that everybody espouse the values we have canonized.”

The commissioners go on to say that “throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly.”Really? Is this statement made in promotion of “peaceful coexistence” and “reconciliation”? It sounds more like a crude bit of pseudo-history capped by a fairly direct threat.


Symposium: Religious Liberty and the Black Church (Washington D.C, November 10)

On November 10, the Baptist Joint Committee for Religious Liberty will present a symposium titled “Religious Liberty and the Black Church: A Baptist Joint Committee Symposium” at Howard University Divinity School and Law School. The featured speaker at the symposium will be Rev. Dr. Raphael G. Warnock. A brief description of the event follows:

baptist-joint-committe-for-religious-libertyThe Rev. Dr. Raphael G. Warnock will headline a lecture and panel discussion in Washington, D.C., focusing on religious liberty and the black church.

On Thursday, November 10, Warnock will speak on the campus of Howard University Divinity School and Law School. The symposium events are free and open to the public, and more information will be released in the future. Both presentations are also part of the Howard University School of Divinity Centennial Alumni Convocation.

Online Symposium: Two Concepts of Religious Liberty

The Law and Religion Forum is delighted to host an online symposium this month on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” which appears in the current volume of the American Political Science Review (May 2016). Among other things, Muñoz (Notre Dame) argues that, from an originalist perspective, the late Justice Antonin Scalia was correct, in Employment Division v. Smith (1990), that the Free Exercise Clause does not require the state to grant believers accommodations from generally applicable and neutral laws. The Framers’ version of natural rights constitutionalism, he contends, does not require religious exemptions. The original meaning of the clause thus confirms Scalia’s reading.

Muñoz leads off the symposium with a post today. Throughout the month of September, we will post responses from Gerard Bradley (Notre Dame), Donald Drakeman (Notre Dame), Matthew Franck (Witherspoon Institute), George Thomas (Claremont McKenna), Jack Rakove (Stanford), and Corey Brettschneider (Brown). Muñoz will return at the end to offer his thoughts on the respondents’ contributions. Enjoy!


Symposium: Religious Freedom Today (New York, September 16)

The Center for Law and Religion is pleased to co-sponsor a symposium on Professor Nelson Tebbe’s forthcoming book, Religious Freedom in an Egalitarian Age, here at St. John’s Law School next month. The symposium is also sponsored by the Journal of Civil Rights and Economic Development and the Ronald H. Brown Center for Civil Rights. In addition to the author, participants include Carlos Ball (Rutgers-Newark), Alan Brownstein (UC-Davis), Chad Flanders (St. Louis), Andrew Koppelman (Northwestern), and Patricia Marino (Waterloo). For more information, please click here.


Regent to Host the 2016 Conference of Religiously Affiliated Law Schools

On September 29-30, Regent University School of Law will host the annual Religiously Affiliated Law Schools conference. Speakers include Professors Robert Cochran (Pepperdine), Robin Fretwell Wilson (University of Illinois), and Linda McClain (Boston University) and State Senator Stuart Adams (Utah). For the conference schedule and further information, click here.

The End of the Liberal Tradition?

At the First Things site today, I have an essay about a remarkable new paper from political scientists Roberto Foa and Yascha Mounk on the growing opposition to liberal democracy among American Millennials–especially wealthy Millennials. For example, the authors write, surveys reveal that 35% of wealthy young Americans think it would be a good thing for the military to take over the government!

In my essay, I argue that the surveys reveal the decline of yet another American tradition: liberalism itself:

Liberalism is often understood as propositional, as a series of abstract principles. This understanding has led scholars like Fukuyama to think that liberalism can be easily exported to other cultures; it has formed the basis for much American foreign policy, especially in recent decades. In important ways, this understanding is correct. Liberalism does justify itself largely on the basis of ideas. The Framers of the American Constitution, for example, were strongly influenced by Enlightenment concepts of reason and rational government.

In a deeper sense, though, liberalism generally, and American liberalism specifically, is a tradition, the organic working-out of precedent, over time, in a particular political culture. The American Framers were figures of the Enlightenment, true, but they also thought they were restoring the traditional rights of Englishmen, rights that could be traced back to Magna Carta and beyond. The American conception of religious liberty, for example, is deeply influenced by the historical experience of the English Civil War and the Glorious Revolution, and also by the particular understanding of religion that took hold in a colonial, frontier society. This explains why it differs so much from its cousin on the European continent, the French doctrine of laïcité.

But American culture is changing. Our traditions are not so popular nowadays, including our political traditions; and when we discard our traditions, we can fall for many things, including, apparently, authoritarianism. That, it seems to me, is the upshot of this important paper. The authors identify authoritarianism in our politics with Donald Trump, and it’s easy to recognize Trump’s authoritarian appeal (“I alone can fix it”). But there is authoritarianism on the left, as well, which the authors ignore. American college students increasingly oppose free speech, at least with respect to certain viewpoints, and insist on shutting down speakers with whom they disagree, often with the approval of administrators and faculty who should know better. Not to mention the left’s continuing assaults on religious liberty, including attempts to get nuns to cover contraceptives for their employees and threats to remove the tax-exempt status of religious schools that disapprove of same-sex marriage.

My essay is available here.

“Negotiating Religion” (Guesnet, Laborde, & Lee, eds.)

This month, Routledge releases Negotiating Religion: Cross-Disciplinary Perspectives edited by François Guesnet (University College London), Cécile Laborde (University College London), and Lois Lee (University College London). The publisher’s description follows:Negotiating Religion

Negotiating religious diversity, as well as negotiating different forms and degrees of commitment to religious belief and identity, constitutes a major challenge for all societies. Recent developments such as the ‘de-secularisation’ of the world, the transformation and globalisation of religion and the attacks of September 11 have made religious claims and religious actors much more visible in the public sphere. This volume provides multiple perspectives on the processes through which religious communities create or defend their place in a given society, both in history and in our world today.

Offering a critical, cross-disciplinary investigation into processes of negotiating religion and religious diversity, the contributors present new insights on the meaning and substance of negotiation itself. This volume draws on diverse historical, sociological, geographic, legal and political theoretical approaches to take a close look at the religious and political agents involved in such processes as well as the political, social and cultural context in which they take place. Its focus on the European experiences that have shaped not only the history of ‘negotiating religion’ in this region but also around the world, provides new perspectives for critical inquiries into the way in which contemporary societies engage with religion.

This study will be of interest to academics, lawyers and scholars in law and religion, sociology, politics and religious history.

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