Posted on by Mark Movsesian

Thames on Making Religious Freedom a Priority in Europe

Knox Thames (US Commission on International Religious Freedom) has posted a new paper, Making Freedom of Religion or Belief a True EU Priority, the latest in a series of working papers from the ReligioWest Project at the European Union Institute in Florence. Here’s the abstract:

The Council of the European Union recently released its Strategic Framework on Human Rights and Democracy, which included freedom of religion or belief in a list of 36 desired outcomes. The timing is good, as countries around the world are grappling with religion/state questions and the role of religious freedom for minority religious communities and dissenting members of the majority faith. Freedom of religion or belief stands at the crux of these issues, yet the Strategic Framework risks losing the religious freedom among the list of other worthy issues. By learning from the experience of the United States in its decade of religious freedom work, the European Union can jump start its efforts and ensure they have impact during this time of global transition.

Posted on by Mark Movsesian

ECtHR’s Grand Chamber to Hear Romanian Church Autonomy Case

The Grand Chamber of the European Court of Human Rights  has decided to review the judgment in Sindicatul Păstoral Cel Bun v. Romania, a significant church autonomy case. In the case, a group of Romanian Orthodox priests sought to register as a trade union. The Romanian Orthodox Church objected, arguing that registration would violate the Church’s autonomy, and a Romanian court agreed. In January, however, a  lower chamber of the ECtHR ruled that the European Human Rights Convention granted the priests a right to unionize even over their church’s objections (for details, see our discussion of the lower chamber’s reasoning).  Romania referred the lower chamber’s decision to the Grand Chamber, which has accepted the case. This is not the only important church autonomy case at the ECtHR these days. In May, a different chamber ruled, in Fernandez Martinez v. Spain, that the church autonomy principle allowed a Catholic bishop to fire a priest who had been teaching religion in Spanish schools. Here’s a press release about the Romanian case from the Becket Fund, which represents Romania and the Romanian Orthodox Church.

Posted on by Mark Movsesian

The Wider Implications of the Clergy Sex-Abuse Crisis

Baylor University historian Philip Jenkins has written a provocative essay on the wider implications of the clergy sex abuse crisis for American Catholicism. It’s not just that victims have suffered, that clergy have gone to jail, that the Church has paid billions of dollars in lawsuits, that charitable work has been curtailed, and that several dioceses have declared bankruptcy. The scandal has also diminished the Church’s voice on debates about law and religion. Where once people would have paid respect to the Church’s views, even if they disagreed with them, the crisis has so weakened the Church’s moral authority that people dismiss the institution and its arguments entirely. For example, in Jenkins’s view, the ineffectiveness of the Church’s voice has greatly influenced the debate on same-sex marriage:

One great “might have been” involves same-sex marriage. In light of present realities, it is hard to recall just how fringe and even bizarre an issue this seemed just a decade ago, and a large section of the American public is Read more

Posted on by Mark Movsesian

Wright on the Benefits of Religious Persecution

The observation that persecution, paradoxically, can confer benefits on a religion is not a new one. “The blood of the martyrs is the seed of the Church,” Tertullian wrote in the second century. It’s not an old one, either. Just yesterday, in fact, Judge Richard Posner made the point in his dissent in the Wisconsin high school graduation case, noted here. And, on SSRN, R. George Wright (Indiana University Robert H. McKinney School of Law) has posted an article, A Cost-Benefit Analysis of Religious Persecution: Casting Up a Dread Balance Sheet, arguing that persecution often confers “judicially cognizable benefits” on victims.  The abstract follows.

This Article notes that it is currently a matter of public controversy whether some forms of persecution based on religion are increasing or decreasing in the United States. This question itself is not subject to reasoned, consensual resolution. But a related and extremely important point remains to be made. Specifically, alongside the obvious costs of any persecution based on religion, many instances of alleged or actual religious persecution confer immense, judicially cognizable benefits, from the standpoint of many of the victims themselves, on many parties, including those victims. It can be entirely legitimate for legislatures, agencies, and courts to take such immense benefits to the victims into account in adopting policies or adjudicating claims about such government policies.

Posted on by Mark Movsesian

District Court Grants TRO in Favor of Tennessee Mosque

On Wednesday, a federal district court in Tennessee ordered local officials to grant an occupancy permit to a controversial mosque in that state. Construction of the mosque, in the city of Murfreesboro in Rutherford County, has been tied up in litigation for years; some neighbors have been very hostile, to put it politely, to the presence of a mosque in their city. The mosque’s opponents won a victory last month, when a state court barred the issuance of an occupancy permit for the mosque, ruling that the Rutherford County zoning board that had approved construction had violated the state’s open meetings law. The mosque and DOJ then sued the county in federal court, arguing that denial of the permit violated both the Free Exercise Clause and RLUIPA. On Wednesday, in the DOJ lawsuit, the federal court issued a TRO requiring the county to grant the occupancy permit in time for the start of Ramadan yesterday. For a detailed account of the litigation, see this article in the New York Times. The case is US v. Rutherford County (M.D. Tenn., July 18, 2012) (H/T: Religion Clause).

Posted on by Mark Movsesian · 1 Comment

German Parliament Resolves to Keep Circumcision Legal

Germany’s lower house of parliament has adopted a resolution calling on the government to keep male circumcision legal in that country. The resolution responds to a regional court’s ruling last month that doctors who perform circumcisions on boys for religious reasons could be prosecuted under German law and requests that the government submit a bill this fall. Jewish and Muslim groups in Germany have united to oppose the court’s ruling — impressive what a common threat can do, isn’t it? — though, according to polls, Germans narrowly support a ban on circumcisions.

Posted on by Marc O. DeGirolami · 1 Comment

More on the “Now that’s real religious persecution” argument

Over at Mirror of Justice, Matt Lister posted a smart, critical reaction to my previous post on this argument.  Here are some thoughts. 

I’ll frame my comments as a response to Matt’s first point about the non-uniqueness of the argument (though I think I’ll rope in his second point too).  As an initial matter, I think Matt is right, as I’ve also heard this style of argument in the context of poverty, or more generally in the context of deciding to which moral cause it is most useful to allocate one’s energies.  But I had two thoughts:

(1) The argument makes a bit more sense to me when the subject is individual morality — the questions of what is the right way to act, and to what issue or moral problem it is worth devoting one’s finite resources.  That’s not to say that I agree with it, but I at least can understand it.  In the context of constitutionally protected rights, it makes less sense to me.  And perhaps in part for that reason, I guess, one tends to hear it much less in the rights context.  Can you think of any other context involving a constitutional right in which one hears the argument?  I think it would be very odd to hear it in, e.g., the free speech context.  It would be highly unusual to hear something like the following: “Well, sure, the Stolen Valor Act may or may not be a violation of the constitutional right of free speech, but look at all of the terrible ways in which free speech is violated abroad!  That’s real suppression of free speech for you, and it suggests that something like the protection of intentional lying just isn’t that important.”  My guess is that the reason such an argument as to free speech would seem odd to us implicates Matt’s second point.  That is, our culture of free speech protection is extremely vibrant.  And that goes for most other constitutional rights too: most people think that a right is a right, and ought to be vindicated irrespective of how gross the violations of it may be in other places in the world.  But, as Matt suggests in his second point, the current condition or status of religious liberty by comparison with other fundamental rights is more contested, and therefore weaker: we may agree about the extremes, but there is currently a broader (and perhaps ever broadening?) range of (reasonable) disagreement in the middle than there is for, e.g., free speech. 

(2) I nevertheless take Matt’s point that the argument itself is not unique to religious liberty.  Still, there seems to me to be something in addition going on.  It isn’t just the claim that if you really cared about X, then you’d concentrate your efforts elsewhere in the world where violations of X are gravest.  That sort of argument would apply in the poverty context that Matt raises.  But in the religious liberty discussion, there is a further argumentative move going on: if you really cared about X, then you’d concentrate your efforts elsewhere in the world where violations of X are gravest, and you’d realize how good you’ve got it here, and that whatever violations of X you perceive here just aren’t that serious.  I am dubious that this latter move is being made in the poverty example that Matt raises — I certainly don’t think it’s necessary conceptually to make that latter move.  But Matt is much more familiar with the egalitarian poverty literature than I am (many people are), so I am happy to be put straight.

Posted on by Marc O. DeGirolami

The ‘now that’s real religious persecution’ argument

Here’s an argument that I have seen repeatedly and that I have some trouble understanding.  It goes something like this: currently in the United States, one is hearing lots of nattering and complaining from various quarters that religious liberty is threatened.  But if you look at other parts of the world, that’s where you will really see grave threats to religious liberty — people’s churches being burned to the ground, people facing prison time for speaking their mind about religion, people being beaten and compelled to sign statements renouncing their religious beliefs, and many other horrors.  That’s “what a real war on religion looks like,” in the words of the latest exponent of this style of argument, Amy Sullivan, in this TNR column, which references something that John Allen wrote. 

The people making this kind of argument might be saying that those who champion religious liberty ought to be focusing on very grave threats to it.  That is undeniably true.  It is extremely important that we all do so, exactly because those sorts of threats are often far away and therefore less immediate for us.  But they might also be saying that the best measure of the condition of religious liberty in the United States is by comparison with its worst violations abroad.  We shouldn’t worry about religious liberty here, because after all, look at how bad things are out there. 

If that is the claim, it strikes me as unpersuasive.

ADDENDUM: A commenter over at Mirror of Justice points out that nobody would make similar sorts of comparative claims about other areas of the law where the legal protection abroad is substantially less than in the US.  This is an interesting point.  It might be that religious liberty is susceptible of this sort of comparative claim in the United States for a variety of reasons.  Possibilities: (1) the belief, at least in some parts, that claims of threats of religious liberty are being asserted in a partisan or selfish or unfair way (it is much less common to hear this claim made about, e.g., the 4th Amendment); or (2) the (growing?) belief that religious liberty — unlike, say, the right against unreasonable searches and seizures by the government — is not (or is no longer) as independently powerful a right as other fundamental rights.  Feedback loop to posts by Steve Smith.

Posted on by Marc O. DeGirolami

Garry, “Limited Government and the Bill of Rights”

Something that looks closely related to the recent exchange between Mark and Steve about the justification of religious liberty as obstructive of the government’s power — Limited Government and the Bill of Rights (University of Missouri Press 2012), by Patrick M. Garry (University of South Dakota).  The publisher’s description follows.

What was the intended purpose and function of the Bill of Rights? Is the modern understanding of the Bill of Rights the same as that which prevailed when the document was ratified? In Limited Government and the Bill of Rights, Patrick Garry addresses these questions. Under the popular modern view, the Bill of Rights focuses primarily on protecting individual autonomy interests, making it all about the individual. But in Garry’s novel approach, one that tries to address the criticisms of judicial activism that have resulted from the Supreme Court’s contemporary individual rights jurisprudence, the Bill of Rights is all about government—about limiting the power of government. In this respect, the Bill of Rights is consistent with the overall scheme of the original Constitution, insofar as it sought to define and limit the power of the newly created federal government.
 
Garry recognizes the desire of the constitutional framers to protect individual liberties and natural rights, indeed, a recognition of such rights had formed the basis of the American campaign for independence from Britain. However, because the constitutional framers did not have a clear idea of how to define natural rights, much less incorporate them into a written constitution for enforcement, they framed the Bill of Rights as limited government provisions rather than as individual autonomy provisions. To the framers, limited government was the constitutional path to the maintenance of liberty. Moreover, crafting the Bill of Rights as limited government provisions would not give the judiciary the kind of wide-ranging power needed to define and enforce individual autonomy.
 
With respect to the application of this limited government model, Garry focuses specifically on the First Amendment and examines how the courts in many respects have already used a limited government model in their First Amendment decision-making. Read more
Posted on by rbonham1

How Important is Public Support for Religious Freedom?

In a recent post, Mark observes that “the idea that religious freedom has special importance, and merits special protection, is deeply rooted in America’s self-image. (In recent surveys, large majorities even of secular Americans agree that religion has had a good influence on American life). . . . [T]he commitment to religious freedom is part of our social contract and I don’t think it’s going to fade away. If politicians try to make the ‘religious freedom is an anachronism’ argument, I suspect they will fail.”

I haven’t seen the surveys, but I trust that Mark is right about them, and I hope that his political instincts are right as well.  It may well be true that there is broad public support in this country for religious freedom.  This is a heartening observation, not just for its immediate political implications, but because I think this sort of tradition/ identity factor offers another potentially important rationale for religious freedom (and one not entirely unrelated to the badly named “social contract” rationale I suggested last week). The basic idea, I take it, goes something like this: Whether or not religious freedom reflects some sort of universal truth, it’s been central to our own political tradition, and it’s part of our national identity.  So we should respect religious freedom because that’s important to what makes us what we are.

Still, I would register a couple of related doubts, or qualifications.  First, even if support for religious freedom is widespread in this country, I wonder how deep it runs– in terms either of real commitment or of genuine understanding.  The reported frequent opposition to Muslim cultural centers or mosques (even in places other than “Ground Zero,” where maybe the issues are more complicated) gives some reason for doubt.  And although it’s not certain what the ultimate outcome of the controversy will be, it’s also discouraging that so many academics and Americans generally manage to convince themselves that there’s no serious religious freedom issue with the “contraception mandate” on the basis of what strike me as patently flimsy rationalizations.  (Religious institutions aren’t “burdened” (even though they say and think they are), or most Catholics use contraceptives anyway, or the governmental interest is “compelling.”)  It may be that lots of Americans are happy enough to support religious freedom in the abstract, but whenever a specific issue comes along that they care about, or when the burden falls on some person or institution they don’t sympathize with, this support somehow disappears.

The other, related qualification I would make is that I don’t believe we should think of public support as sufficient in lieu of persuasive justifications, as if it were some independent variable.  Public attitudes are based in part on reasons that have been advanced over the years or centuries, and those attitudes can change pretty quickly when plausible reasons can’t be given for them.

–Steve Smith