I’ve recently become aware (thanks to Rick Garnett’s and Mark’s respective posts) of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, which I’ve blogrolled in our links. It looks like a terrific resource.
On November 17, the Berkley Center will hold a conference titled, “What’s So Special About Religious Freedom?” which features a debate between Michael McConnell and Noah Feldman, as well as various other discussions. — MOD
Mark Douglas McGarvie (University of Richmond) has posted a review of David Sehat’s The Myth of American Religious Freedom. An abstract follows. – ARH
The nature and extent of Americans’ commitment to religious freedom has become both a popular historical subject and the source of a very contentious historiography noteworthy for its considerable variation in quality. Thankfully, three publications in recent months have significantly improved the level of academic discourse on this important topic while adding to our historical understandings. Together they form an excellent basis for a synthesis of our current thinking aboutlaw and religion.
The first of these, Sarah Barringer Gordon’s The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010), highlights the contrasting views of law—popular and technical—held, respectively, by spiritual activists and legal professionals and describes how, over the last seventy years, they intersected sufficiently to form the confusing accommodationist position taken by the Supreme Court since the 1980s. Published shortly thereafter, Derek H. Davis’s edited collection, The Oxford Handbook of Church and State in the United States (2010), contains twenty‐one interpretive and analytical essays establishing the current state of our historical understanding on a variety of subjects relevant to the relationship between law and religion. David Sehat’s book offers another intelligent and even‐handed analysis of this troubling historical issue, providing a new interpretation of the tension between American liberal and Christian worldviews and the institutions formed to express them.
From the NYT, a report on Kazakhstan’s new religious association law, which requires religious organizations in that country to dissolve and re-register with the government. Associations with less than 50 members will not be able to register locally; those with less than 500 members will not be allowed to register regionally. The new law also bans prayer in the workplace. Kazakhstan used to present itself as a model of religious tolerance, but recent Islamist-linked attacks in the country have apparently caused the government to crack down. The law is expected to have a serious impact on minority religious groups, such as Christians, many of which fail to meet the new membership requirements. — MLM
From the BBC this week, a helpful survey of Christian communities in the Middle East and their human rights concerns. — MLM
Linda C. McClain and James E. Fleming, both of Boston University School of Law, have published Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights. The paper draws on the works of Dworkin (and other giants in liberal political theory such as Rawls) to critique the “communitarian” or “civic-republican” perspective of Michael J. Sandel’s bestseller, Justice: What’s the Right Thing to do? (2009). Professor Sandel rejects values-neutral conceptions of legal justice in socio-moral debates like that concerning the validity of gay marriage—arguments that emphasize individual freedom to act; rather, he argues that only arguments with a full-fledged consciousness of the actual, moral virtues—or lack of them—that such social institutions embody will satisfactorily resolve these cultural conflicts.
In contrast, McClain and Fleming argue that both values-neutral and values-based arguments—arguments for individual freedom of action as well as arguments about the virtue embodied in social institutions like marriage—have and will be instrumental to resolving such questions. Please see the authors’ abstract after the jump:
John Allen has a thoughtful column today about religious freedom as the dominant issue for the future of Catholicism. He identifies three historical movements which have thrust religious liberty into the foreground: (1) the secularization of Western nations, and the concomitant sense in which Western states will become increasingly hostile to Catholicism and Christianity generally; (2) the reality that increasingly large numbers of Catholics come from the southern hemisphere, where they face dire threats to life and limb (and I take the point about the ministerial exemption that Allen makes); and (3) the shift from Judaism to Islam as Catholicism’s primary interlocutor. Here’s a bit from Allen’s discussion of the last shift. — MOD
As Islam becomes the paradigmatic relationship, however, Catholic psychology has begun to shift. Today, Catholics are less inclined to assume that the problem lies on their side of any inter-faith dialogue; they’ve become more inclined to point to distortions and excesses on the other side as well. That’s a prescription for a more balanced and substantive, but also more combustible, form of dialogue.
By far, the most common area where one sees this new Catholic willingness to push back is religious freedom, and not just in the relationship with Islam. It also surfaces, for instance, in the dialogue with Hinduism, given the alarming spread of Hindu nationalism and radicalism in some regions of India. The worry is that violent anti-Christian pogroms that broke out in the state of Orissa in 2008 may be a preview of coming attractions.
Marie Ashe (Suffolk University Law School) has posted Privacy and Prurience: An Essay on American Law, Religion, and Women. The abstract follows.—YAH
In my studying of American law – in its relation to religion and to privacy and to women – the current bookends of my readings consist of two sets of texts: the first, certain writings from the 17th-century Massachusetts Bay Colony; the second, certain writings from the United States Supreme Court of very recent years. The first set consists of reports and records generated in Massachusetts incident to the Antinomian Controversy of 1836-1838, particularly reports of the trials of Anne Hutchinson and Mary Dyer, and accounts of the “monstrous births” of each. The second set includes writings from year 2007: the United States Supreme Court’s opinion in Gonzales v. Carhart (its most recent abortion decision), and the amicus briefs filed therein.
Examining and juxtaposing those sets of writings, this essay discloses striking resonances between the 17th-century and the 21st-century texts. It documents in each: religio-judicial prurience in examinations and constructions of female bodies; and disappearance of “privacy” as a protector of women’s autonomy and women’s liberty.
Mike McConnell has a great piece in today’s Wall Street Journal on the ministerial exception, the subject of today’s argument in Hosanna-Tabor. Among other things, McConnell notes that, shockingly, the Obama Administration has filed an amicus brief opposing the exception in principle. I say “shockingly” because, at one point, anyway, the Obama Administration was trying assiduously to close the so-called “God gap” in American politics by reaching out to religious-values voters. But religious-values voters, including religious-values voters inclined to vote Democratic, believe, correctly, that the ministerial exception protects important constitutional values. In fact, McConnell has filed an amicus brief supporting the ministerial exception on behalf of a number of mainline Protestant denominations, including the United Methodists, the United Church of Christ, and the Presbyterian Church (USA), all of which skew left in American political terms. — MLM
More news this weekend on Yousef Nadarkhani, the Evangelical pastor Iran has sentenced to death for apostasy. The semi-official Fars news agency says that Nadarkhani is actually facing execution for several counts of rape, extortion, and treason — nothing to do his conversion to Christianity. Fars quotes a government official criticizing outside media coverage for giving a distorted account of Nadarkhani’s trial. “In our system,” the official is quoted as saying, “no one can be executed for changing his/her religion.” The new allegations are surprising, to say the least, since the government’s brief in Nadarkhani’s appeal to the Iranian Supreme Court, obtained by Western news outlets, mentions only the charge of apostasy. Observers suspect that the international attention to Nadarkhani’s case, including an appeal from the Obama Administration last week, has embarrassed the Iranian regime, which is now seeking a pretense for punishing the pastor. — MLM
Studies of the constitutional law and history of the religion clauses often
seem to be largely a late twentieth century phenomenon (this is not too surprising, since things began to heat up in earnest in the mid-’40s), but there are many notable predecessors. One of these is Anson Phelps Stokes’s gargantuan effort, Church and State in the United States, first published in 1950 in three volumes. It contains many historical details that are well worth savoring and which don’t seem to have made it to subsequent treatments (particularly church/state episodes in early America). The three volumes were later condensed into one volume by the brilliant Leo Pfeffer, with some slightly polemical editing by Pfeffer as well (as committed a 1960s-70s-style separationist as one could find).
As I could not find an image of the original Stokes volumes, I’ve attached an image of the 1964 Pfeffer abridgement. But a few years back I looked through Volume I of the original — if you can get your hands on it, it’s well worth it. — MOD