Posted on by Mark Movsesian

Today’s Argument at the ECtHR: Highlights

Today in Strasbourg, a chamber of the European Court of Human Rights heard oral argument in four consolidated cases from the United Kingdom: Chaplin v. UK, Eweida v. UK, Ladele v. UK, and McFarlane v. UK. The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

For an American watching the webcast on the ECtHR’s website, today’s hearing offered some surprises. First, the argument was about two hours long, and the judges waited patiently to the end before asking any questions. A note to our readers in Europe: in an American courtroom, the judges would have interrupted in two minutes! Substantively, the counsel for the UK, James Eadie, made some claims that strike an American lawyer as remarkably broad. For example, he argued that Article 9 does not even cover the practice of wearing crosses. Article 9, he argued, only protects religious practices that are “generally recognized” within a religion, and there is no consensus in Christianity that adherents must wear crosses. I’m not aware of any analogous principle in American law. In response to Eadie, Eweida’s attorney, James Dingemans, scoffed at the idea that a practice must be “generally recognized” or “scripturally Read more

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Bradley, “Essays on Law, Religion, and Morality”

This month, St. Augustine’s Press will publish Essays on Law, Religion, and Morality by Gerard V. Bradley (University of Notre Dame Law School). The publisher’s description follows.

The most controversial foundational issue today in both legal philosophy and constitutional law is the relationship between objective moral norms and the positive law. Is it possible for the state to be morally “neutral” about such matters as marriage, the family, religion, religious liberty, and – as the Supreme Court once famously phrased it – “the meaning of life”? If such neutrality is possible, is it desirable? Read more

Posted on by Marc O. DeGirolami

Garnett on the Virtues of Waiting

Have a look at our friend Rick Garnett’s short article at Commonweal on the the dangers of executive overreach — in this as well as prior presidential administrations — in response to the generally salutary frustrations of constitutionalism.  A bit from Rick’s essay:

The apparent urgency of these challenges prompts many to contend, understandably enough, that we have to act now and dramatically, that something bold must be done, that progress matters more than process, and that—in the words of one of President Barack Obama’s campaign themes—“we can’t wait.”

Last October, for example, after Congress responded coolly to his proposed jobs bill, the president promised—or warned—“If Congress won’t act, I will.” And he has. In a variety of contexts, he has moved on policy and personnel in ways designed to avoid the time-consuming gridlock that sometimes results from procedures mandated and constraints imposed by the Constitution. That document prescribes how high-ranking federal officials are to be appointed and gives the Senate a role in that process. The president—like, but to a greater extent than, other recent presidents—has avoided that check by creating a stable of “czars,” whose selection and portfolios are generally not reviewed by legislators. He has also outdone his predecessors in exploiting the Constitution’s authorization of “recess appointments” to install controversial appointees in powerful positions. Rather than wait for Congress to revise unpopular requirements of the No Child Left Behind law, he has offered to waive those requirements on the condition that states adopt practices, standards, and guidelines supported by his administration. Like other presidents, he has used both executive orders and the administrative-rulemaking process to implement substantive policies that the Republican-controlled House of Representatives would likely reject. And, in a widely criticized effort to leap over the jurisdictional limits imposed by the First Amendment, his administration argued before the Supreme Court that the Constitution’s religious-freedom guarantees should not stand in the way of anti-discrimination lawsuits brought by ministerial employees against religious institutions.

Again and again, we hear the same rationale: “If Congress won’t act, I will,” because “we can’t wait.” This should worry, not rally. In the politics of a free society committed to the rule of law, we (usually) can wait, and even when it seems like we can’t, we sometimes have to. It is easy, but mistaken and dangerous, to equate disagreement with bad-faith obstructionism, and to cast one’s own side as an enlightened vanguard, empowered by this or that emergency to do whatever it takes to achieve unity, to make progress, to bring about change. In this election season, though, what is needed—from candidates and citizens alike, and on both the left and right—is humility, restraint, and patience. These are more than useful life skills. They are constitutional virtues.

Posted on by Mark Movsesian

ECtHR Broadcast of Hearing in British Christians’ Cases to Begin Shortly

This morning in Strasbourg, a chamber of the European Court of Human Rights held a hearing in four consolidated cases concerning religious freedom in Britain. The applicants are British Christians who allege that UK employment law does not sufficiently protect their rights to wear crosses at work and to refuse duties that, in the applicants’ view, condone homosexual activity. The court will post a broadcast of the hearing on its website shortly, starting at 2:30 pm local time. For the ECtHR’s press release summarizing the issues in these cases, follow the links here.

Posted on by JCPW

Viroli, “As If God Existed: Religion and Liberty in the History of Italy”

This September, Princeton University Press will publish As If God Existed: Religion and Liberty in the History of Italy by Maurizio Viroli (Princeton University). The publisher’s description follows.

Religion and liberty are often thought to be mutual enemies: if religion has a natural ally, it is authoritarianism–not republicanism or democracy. But in this book, Maurizio Viroli, a leading historian of republican political thought, challenges this conventional wisdom. He argues that political emancipation and the defense of political liberty have always required the self-sacrifice of people with religious sentiments and a religious devotion to liberty. This is particularly the case when liberty is threatened by authoritarianism: the staunchest defenders of liberty are those who feel a deeply religious commitment to it.

Viroli makes his case by reconstructing, for the first time, the history of the Italian “religion of liberty,” covering its entire span but focusing on three key examples of political emancipation: the free republics of the late Middle Ages, the Risorgimento of the nineteenth century, and the antifascist Resistenza of the twentieth century. In each example, Viroli shows, a religious spirit that regarded moral and political liberty as the highest goods of human life was fundamental to establishing and preserving liberty. He also shows that when this religious sentiment has been corrupted or suffocated, Italians have lost their liberty.

This book makes a powerful and provocative contribution to today’s debates about the compatibility of religion and republicanism.

Posted on by Mark Movsesian

Lecture: Religious Freedom in America Today

The Lumen Christi Institute will host a lecture by our friend Rick Garnett (Notre Dame), “Religious Freedom in America Today,” in Chicago on September 26.  The description of the lecture follows. If you’re in Chicago, make sure to go. Rick is one of America’s leading law and religion scholars and always has something valuable to say. Details are here.

As President Clinton observed, “religious freedom is . . . our first freedom.” It was central to the Founders’ vision for the American political community. They did not always agree about what religious freedom means or requires, but they knew that it matters, and that it should be respected in policy and protected by law. James Madison, the Father of our Constitution, hoped that America’s religious-liberty experiment “promised a lustre to our country.” This lecture will take stock of this experiment and consider the rights of religious believers and institutions and their roles and voices in American public life today.

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Leiter, “Why Tolerate Religion?”

This October, Princeton University Press will publish Why Tolerate Religion? By Brian Leiter (University of Chicago Law School). The publisher’s description follows.

This provocative book addresses one of the most enduring puzzles in political philosophy and constitutional theory–why is religion singled out for preferential treatment in both law and public discourse? Why, for example, can a religious soup kitchen get an exemption from zoning laws in order to expand its facilities to better serve the needy, while a secular soup kitchen with the same goal cannot? Why is a Sikh boy permitted to wear his ceremonial dagger to school while any other boy could be expelled for packing a knife? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not?

In Why Tolerate Religion?, Brian Leiter argues that the reasons have nothing to do with religion, and that Western democracies are wrong to single out religious liberty for special legal protections. He offers new insights into what makes a claim of conscience distinctively “religious,” and draws on a wealth of examples from America, Europe, and elsewhere to highlight the important issues at stake. With philosophical acuity, legal insight, and wry humor, Leiter shows why our reasons for tolerating religion are not specific to religion but apply to all claims of conscience, and why a government committed to liberty of conscience is not required by the principle of toleration to grant exemptions to laws that promote the general welfare.

Posted on by Mark Movsesian

Girl in Pakistani Quran Case Ruled a Minor

The lawyer representing a Pakistani girl charged with blasphemy for allegedly desecrating  a Quran announced today that a medical review board has determined the girl is a minor. According to the Guardian, this determination may defuse the case. The accusations against the girl, discussed here, have ignited her neighborhood and caused 900 Christians to flee for fear of reprisals. The Guardian explains:

The case has once again put the spotlight on Pakistan’s blasphemy laws, which critics say can be used to settle vendettas or seek retribution. Many of Pakistan’s minorities, including Christians, live in fear of being accused of blasphemy.

Once someone is labelled a blasphemer, even if they are never convicted, they can face vigilante justice. In July, thousands of people dragged a Pakistani man accused of desecrating the Qur’an from a police station, beating him to death and setting his body alight.

The potential public backlash also means few people have spoken out to change or repeal the law. Last year two prominent politicians who criticised the blasphemy law were murdered, one by his own bodyguard, who then attracted adoring mobs.

Posted on by Mark Movsesian · 3 Comments

Is Conservative Judaism a Cartel?

CLR Forum reader John McGinnis points out an interesting article in the New York Times this weekend, about Duke Law Professor Barak Richman’s quest to have the courts declare Conservative Judaism’s rules for naming rabbis a violation of the Sherman Act. It’s not entirely clear from the Times article, but, as I understand it, synagogues that affiliate with Conservative Judaism must select rabbis from lists approved by the Rabbinical Assembly, a membership association of Conservative rabbis.  Richman believes this mechanism makes the Rabbinical Assembly an illegal “cartel” that “harms both the economic welfare and the religious interests of individual congregations.” He argues that the ministerial exception properly applies only to hierarchical religions and employers, not “congregational denominations,” like Conservative Judaism, in which individual congregations, not the central body, employ clergy. You can read his argument in an amicus brief he filed, along with several other antitrust scholars, in the Hosanna-Tabor case.

I don’t know whether this mechanism would violate the Sherman Act in a commercial setting. I’m confident the logic of the ministerial exception applies here, though. From what I can gather, Conservative Judaism is a hybrid polity, not hierarchical but not strictly congregational, either. Authority seems to be shared between the central body, the United Synagogue of Conservative Judaism, and local congregations. It hardly seems inappropriate to require local congregations that affiliate with the central body to choose clergy the central body approves; otherwise, the central body could lose control over the movement’s meaning and message. Although Professor Richman is correct that the rules impinge on individual congregations’ power to choose whomever they wish as clergy, that’s just a consequence of affiliating with the central body. If congregations want total freedom of choice, they can organize outside the Conservative movement and select whomever they wish.

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Hicks on Power, Empire, and Expansion in Studies of North American Religions

Rosemary R. Hicks (Tufts U.) has posted Between Lived and the Law: Power, Empire, and Expansion in Studies of North American Religions. The abstract follows.

Taking debates about the Park51 (or ‘Ground Zero’) mosque and Islamic Community Center as a case study, this article demonstrates the need for scholars of religious traditions in North America to move beyond liberal modes of historicizing that pluralize narratives about religion but ignore how religion is defined and regulated. Liberal modes of historicizing create space for different traditions by first naturalizing differences as ostensibly fixed, inherent, and eternal – a dynamic that has proven to produce antagonistic narratives and relations as well as ‘tolerant’ ones. This is in part due to the fact that such narratives somewhat broaden the inclusivity of the U.S. public sphere but in so doing obscure the various means and power dynamics by which the boundaries of acceptable religiosity are policed. Finally, this article examines and offers analyses that provide more robust mechanisms by which to understand issues of religious diversity and liberty in the United States.