Posted on by Marc O. DeGirolami

Beards

The redoubtable Peter Berger has a winning column on them.  A few years back I had one, but despite Berger’s plausible claim that “the power of the beard as a profane symbol of adult masculinity should not be underestimated,” my wife for some reason did not hold my beard in very high esteem. 

Berger’s post is prompted in part by the legal controversies involving the Amish beard cutting incident in Cleveland, now being tried as a federal “hate crime,” and the trial of alleged murderer Major Nidal Hasan in Fort Hood, Texas, who was ordered to shave his beard for trial.  Here is Berger’s beards and religion angle (but you really should not miss the rest):

Needless to say, religion is a particularly rich field for the beard as sacramental symbol. There are significant differences between Latin and Greek Christianity. Bearded priests have become the norm in Eastern Orthodox churches; in the Roman Catholic Church, while there are some monastic orders whose monks wear beards, secular priests are normally clean-shaven. I don’t know whether there are “grooming regulations” in either case, nor do I know of any in Protestant churches. Mormons stand out: Young men going out on their two-year missionary stints must be clean-shaven, as must students at Brigham Young University. Beards have become the trademark of Orthodox Judaism, though the Torah does not command them directly (Leviticus only has rules for shaping the beard). I would imagine that there are different deductions from these rules in the Talmud. Jews in mourning, while “sitting shive”, don’t shave and let the stubbles sit during this period. Sikhs are very intent on their luxurious beards. Many Hindu ascetics have beards, but that is not so much a symbol as the result of their having no possessions, not even a razor (they do beg—is there no pious barber who can donate a free shave?). I have no knowledge of Buddhist attitudes to facial hair. But of course we are most aware of the role of beards in contemporary Islam.  Beards are the male equivalents of female headgear. If young men in Turkey come out of the closet as Islamists and consequently drive their Kemalist parents crazy, their young sisters achieve the same result by covering their hair with the scarves that signify Islamic modesty. As far as I know, there is no commandment to wear beards in the Koran, though there is an authoritative tradition (hadith) according to which the Prophet Muhammad did issue such a commandment.

I promised that there would be no theoretical or practical conclusions. Let me just say this: There are very few “natural” symbols. (Though the lion may be a “natural symbol” of might, as against the mouse.) Beyond such clear cases, anything can symbolize anything. Symbols change over time. As to beards, often they symbolize nothing beyond themselves—as Freud did not say, but might have said: Sometimes a beard is just a beard. Beards have carried all sorts of symbolic freight. In the area of religion, it would be nice if beards symbolized moderation and tolerance.

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Pierik on State Neutrality in Europe

Roland Pierik (University of Amsterdam) has posted State Neutrality and the Limits of Religious Symbolism.  The abstract follows.

The European Court of Human Rights (ECtHR) has concluded that the mandatory display of crucifixes in public school classrooms does not violate the European Convention. Many have questioned whether a supra-national court like the ECtHR is entitled to interfere in issues that are so intimately linked to the national identity of state parties. However, even if one agrees that the Court’s Grand Chamber was in the end correct not to interfere (by employing the margin of appreciation), one can still question whether a constitutional democracy like Italy is justified in enforcing an explicit Christian symbol in public schools.

In this chapter, I analyze the Lautsi case from the perspective of state neutrality. It is generally acknowledged in legal and political philosophy that contemporary constitutional democracies cannot be formally linked to some religious confession, except in a vestigial and largely symbolic sense. As Rajeev Bhargava argues, the idea of neutrality requires a “principled distance” between religion and the state, two entities that should be seen as distinct spheres with their own respective areas. In this chapter, I analyze whether the wish to hold on to such a religiously inspired tradition is consistent with the idea of state neutrality, a central value of contemporary constitutional democratic states. Read more

Posted on by Marc O. DeGirolami

Classic Revisited: Eliade’s “The Sacred and the Profane”

Today’s classic revisited is one in the sociology and history of religion, Mircea Eliade’s The Sacred and the Profane: The Nature of Religion, first published in 1957 (the first edition pictured at right).  The field of religious studies, unlike theology, is a comparatively new one — beginning in earnest in the 19th century and heating up only in the 20th.  One connection to law is the ‘definition-of-religion’ issue: how can we find an essence or core of what religion is — and so what the scope is of the constitutional commitments against its establishment and to its free exercise.  The issue appeared in some of the Supreme Court’s mid-twentieth century conscientious objection to military service opinions, which, while not strictly about the Constitution (they were statutory interpretation decisions), confronted the Court with the problems of how to distinguish a religious reason of conscience from a different sort of reason, and whether to do so at all.  But there are other less obvious and so far unexplored connections to law, particularly constitutional law. 

The eminent and supremely cultivated theorist and historian of religion Mircea Eliade, Romanian by birth, taught at the University of Chicago after a turbulent early life.  Together with Joachim Wach and others, Eliade made Chicago the heart of the academic study of religion in the mid-late-20th century, and to this day it retains some of the preeminent figures in religious studies (J.Z. Smith, Martin Riesebrodt, and Jean Bethke Elshtain, among many others).

Though Eliade never had any particular influence on the Court (a treatise of his was cited in the majority opinion in the Lukumi Babalu decision, as well as in a handful of 2d and 3d circuit decisions), his ideas about the nature of religious experience are extremely interesting and possibly deserve further study by legal scholars and courts — including by those  interested in the psychology of originalism.  One of Eliade’s crucial ideas was that the conceptions of “sacred” and “profane” time differ fundamentally.  In sacred time, every time that we engage in a ritual or a ceremony, it serves to reactualize the “mythic beginning” which is “indefinitely recoverable, indefinitely repeatable.”  (69)  Sacred time is therefore cyclical; while profane time is linear.  That “beginning” is not to be found in a historical moment because no time can precede “the appearance of the reality narrated in the myth.”  (72)  It is in this way that sacred time (and, we might say, sacred legal time) creates fissures or what Eliade called moments of “hierophany” in the humdrum linearity of profane time, in which a (legal) “beginning” is recalled and reactualized in (legal) ritual.

Eliade’s writing (laced in part with the writing of Freud and Jung) has not penetrated the constitutional discourse, but it has something worthwhile to offer.

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Gedicks on Lynch v. Donnelly

Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted Lynch v. Donnelly and the Terminal Silliness of Secularized Religious Symbols. The abstract follows. – ARH

Prepared for a symposium, this essay argues that Lynch v. Donnelly (1983) belongs in the pantheon of anti-canonical bad Supreme Court decisions. Widely viewed as a victory for conservative Christians in their long-running battle against the secularization of public life, Lynch held that a state-sponsored Christmas nativity depicting the traditional biblical account of Jesus’s birth did not violate the Establishment Clause because it was surrounded by candy canes, Santa Clause, reindeer, and other secular symbols of the Christmas holiday.

The essay argues that the Lynch majority failed to explain why this was not a violation of the Establishment Clause, and also failed to articulate any principle that could be applied with even modest predictability in subsequent religious symbol cases, resulting in a line of decisions whose unifying rationale remains obscure.

Lynch and its progeny suggest that government may appropriate religious symbols for its own uses only if the context in which the symbol is displayed empties it of contemporary religious significance. Lynch is thus a pyrrhic victory for religious conservatives, an ironic dismissal of the relevance of faith to American public life that permits the government to use religious symbols only if it communicates that they are not religiously meaningful.