Around the Web

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

Llewellyn & Sharma, “Religion, Equalities, and Inequalities”

This month, Routledge releases “Religion, Equalities, and Inequalities,” by Dawn Llewellyn (University of Chester) and Sonya Sharma (Kingston University London).  The publisher’s description follows:

Presenting cutting edge research on how religion can confront and obscure social inequalities in everyday life, Religion, Equalities and Inequalities argues that when 9781472439963religion is left out of social scientific analyses, it can result in incomplete analyses that conceal pathways to social inclusion and exclusion. Bringing together an international and interdisciplinary group of contributors who operate at the vanguard of theoretical and empirical work on how social structures of power, institutions and bodies can generate equalities and inequalities in religion, the collection shows how religion can enable and challenge the inequities that affect people’s everyday lives. Academics and students of religious studies, sociology, politics and social policy will all find this book offers useful insights into the relationship between religion and contemporary culture.

“American Conservatism” (Levinson et al, eds.)

In May, the New York University Press will release “American Conservatism: Nomos LVI,” edited by Sanford V. Levinson (University of Texas), Joel Parker (University of Texas), and Melissa S. Williams (University of Toronto). The publisher’s description follows:

The topic of American conservatism is especially timely—and perhaps volatile.  Is there what might be termed an “exceptional” form of conservatism that is 9781479812370_fullcharacteristically American, in contrast to conservatisms found in other countries?  Are views that are identified in the United States as conservative necessarily congruent with what political theorists might classify under that label?  Or does much American conservatism almost necessarily reflect the distinctly liberal background of American political thought?

In American Conservatism, a distinguished group of American political and legal scholars reflect on these crucial questions, unpacking the very nature and development of American conservative thought. They examine both the historical and contemporary realities of arguments offered by self-conscious conservatives in the United States, offering a well-rounded view of the state of this field.  In addition to synoptic overviews of the various dimensions of American conservative thought, specific attention is paid to such topics as American constitutionalism, the role of religion and religious institutions, and the particular impact of the late Leo Strauss on American thought and thinkers.  Just as American conservatism includes a wide, and sometimes conflicting, group of thinkers, the essays in this volume themselves reflect differing and sometimes controversial assessments of the theorists under discussion.

Bank and Gevers, “Churches and Religion in the Second World War”

In March, Bloomsbury Publishing will release “Churches and Religion in the Second World War,” by Jan Bank (University of Leiden) and Lieve Gevers (Catholic University Leuven).  The publisher’s description follows:

Despite the wealth of historical literature on the Second World War, the subject of religion and churches in occupied Europe has been undervalued –9781472504807 until now. This critical European history is unique in delivering a rich and detailed analysis of churches and religion during the Second World War, looking at the Christian religions of occupied Europe: Catholicism, Lutheranism, Calvinism, and Orthodoxy.

The authors engage with key themes such as relations between religious institutions and the occupying forces; religion as a key factor in national identity and resistance; theological answers to the Fascist and National Socialist ideologies, especially in terms of the persecution of the Jews; Christians as bystanders or protectors in the Holocaust; and religious life during the war. Churches and Religion in the Second World War will be of great value to students and scholars of European history, the Second World War and religion and theology.

DeGirolami reviews Monsma

The final draft of my review of Steve Monsma’s Pluralism and Freedom: Faith-Based Organizations in a Democratic Society, has just been published by the Journal of Church and State. I recommend the book for those interested in the institutional questions that have lately come to prominence in law and religion scholarship and doctrine.

Helfand’s Testimony: Implied Consent Institutionalism

Our friend and former guest Michael Helfand (Pepperdine) will be appearing with me at the US Commission on Civil Rights briefing next week, and he passes along his testimony.  Michael’s approach to the religious institution question, as developed not only here but also in some of his other excellent work, depends to an extent on a very interesting (and, I think, provocative) concept of implied consent derived from the individual and granted to the institution.  He locates some of the constitutional root of this idea in Watson v. Jones (1872).

Schragger & Schwartzman on Religious Institutionalism

Richard Schragger and Micah Schwartzman (both of University of Virginia School of Law) have posted Against Religious Institutionalism. The abstract follows.

The idea that religious institutions should play a central role in understanding the First Amendment has become increasingly prominent in recent years. Litigation over the application of civil rights laws to ministers and the requirement that religious employers provide contraception coverage to their employees have elicited calls for a doctrine of church sovereignty based on an institutional conception of the Religion Clauses. In this Article, we present grounds for skepticism about this new religious institutionalism, especially the concept of “freedom of the church,” which we distinguish from the seemingly related but importantly distinct idea of church autonomy. We further explain why individual rights of conscience are sufficient to protect the free exercise and anti-establishment values of the First Amendment. Our argument, contrary to some recent scholarship, is that religious institutions do not give rise to a special set of rights, autonomy, or sovereignty, and that what might be called institutional or church autonomy is ultimately derived from individual rights of conscience. Indeed, for purposes of understanding religious liberty, we contend that any notion of institutional autonomy — to the extent it exists — can come from nowhere else.

Berger on Ritual, Religion, and Institutions

Peter Berger’s blog is quickly becoming one of my weekly regular reads — and as he explains in this post, blogging is a weekly affair for him.  One of the most incisive points he makes is about the ritualistic qualities and regularized patterns of the institutions that we construct for ourselves — a point that has not gotten as much attention with respect to legal institutions as it perhaps deserves.   Here’s a portion on the relationship of habits, rituals, and institutions:

[E]very habit has the potential to become a ritual. Since ritual is at the very heart of religion, and since I have assumed the obligation to blog about religion at least most of the time, the topic is not out of order here.

Forming habits is a basic requirement if human beings are going to live in a society (which in turn is a requirement for surviving as a species). Society is only possible because its members share mutually predictable programs of behavior. We are different from even our closest zoological relatives in that our biological makeup falls far short of supplying the required programs. The social philosopher Arnold Gehlen interpreted our species as being instinctually deprived, a “deficient being”. [He could also have called homo sapiens a biologically under-equipped chimpanzee, but philosophers, especially German ones, don’t use such colorful language.]  Since our instincts provide us with only a few programs of behavior, we must invent such programs ourselves. These ersatz instincts are what we call institutions (Gehlen has built a very interesting theory on this phenomenon). Let us assume that Adam and Eve, when they met for the first time, did have a built-in program driving them toward each other. Beyond this primal interaction, nature did not tell them what else they should do with each other. Consequently human beings constructed these immensely varied and complex institutions, which provide programs for tackling the problems of sexuality, procreation, child-rearing, nomenclature, the rights of property, and so on. If these institutions—we commonly call them kinship—did not exist, the rules of engagement would have to be renegotiated every time a man was attracted to a woman, down to the property rights of great-grandchildren. This process of endless renegotiation would take all available time: Nothing else would get done, including such urgent activities as agriculture and warfare.

ADDENDUM: I was remiss in failing to note for readers that for further reflections of a similar nature, see Berger’s wonderful book from a few decades ago, The Sacred Canopy: Elements of a Sociological Theory of Religion.

Noda on The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use

Tokufumi Joshua Noda  (Student at Boston College Law School) has posted The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use. The abstract follows. – ARH

Courts have been divided over the proper application of the substantial burden and equal terms provisions of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) to religious land-use cases. In particular, courts and scholars have had trouble balancing the competing concerns between municipalities and religious institutions regarding control over land-use regulations. The basic question remains, how to provide religious institutions with protection against discrimination without conceding too much control over land-use regulations. This Note observes the use of economic principles in Judge Posner’s opinions, which can help guide a balanced, fact-sensitive application of RLUIPA’s provisions. Using this approach, courts can balance competing concerns by weighing them against relevant facts that are specific to each community. Nevertheless, although the economic approach sheds light on the application of RLUIPA, it also reveals new tensions both within RLUIPA’s application and the economic approach generally.