Around the Web

Around the Web

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

Around the Web

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

The Weekly Five

This week’s collection of five new articles from SSRN includes Corinna Lain’s history of Engel v. Vitale, the school prayer case; Anna Su’s review of Steve Smith’s new book on the decline of religious freedom; and pieces on corporate social responsibility in Asia; Christianity and other foundations of international law; and the will to live.

1. John D. Haskell (Mississippi College-School of Law), The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism. According to Haskell, three traditions constitute “modernity” in international legal scholarship—Christianity, Liberalism, and Marxism. These three traditions differ from one another but also have some similarities. He writes, “my hope is that in studying each tradition, we can find a new synthesis that allows fresh analytical tools to conceive the dynamics of global governance today and how they might be addressed.”

2. Corinna Lain (University of Richmond), God, Civic Virtue, and the American Way: Reconstructing Engel. In this history of Engel v. Vitale, the 1962 Supreme Court decision that struck down school prayer, the author argues that the conventional wisdom has the case wrong. Engel was not an example of the Court’s standing bravely against a popular majority. If the Justices had understood how controversial their decision would be, she maintains, they would not have taken the case to begin with. Instead, Engel demonstrates the power of judicial review in stimulating democratic deliberation on the Constitution—what some scholars call “popular constitutionalism.” She argues that popular antipathy to the decision resulted from misunderstandings provoked by the media.

3. Marvin Lim (Independent), A New Approach to the Ethics of Life: The “Will to Live” in Lieu of Traditionalists’ Notion of Natural/Rational and Progressives’ Autonomy/Consciousness. The author maintains that both traditionalist and progressive justifications for protecting human life are inconsistent and unconvincing. In their place, he argues for an ethic of the “will to live.” What ultimately matters is whether actions respect or violate this ethic. This approach would allow abortion and assisted suicide in at least some circumstances, he says.

4. Arjya B. Majumdar (Jindal Global Law School), Zakat, Dana and Corporate Social Responsibility. In this essay, the author traces the tradition of charity in Islam, Hinduism, and Buddhism and explores the relevance of that tradition in corporate law. Especially in Asia, the author says, where corporations have relatively few shareholders and tend to be family or individual operations, religious traditions of charity can play an important role in boosting corporate social responsibility.

5. Anna Su (SUNY Buffalo), Separation Anxiety: The End of American Religious Freedom? This is a review of Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom. Su disagrees with Smith that the Supreme Court’s twentieth-century Religion Clause cases threaten the existence of religious freedom. “These decisions,” she writes, though frustrating and incoherent as they might seem, in fact, are as responsible for the remarkable religious pluralism that exists in American society today as much as for the contemporary secular extremism that Smith deplores.”

ACLU to South Carolina Public Schools: We’re Watching

The Wall Street Journal‘s Law Blog reports today that, as the new school year begins, the ACLU of South Carolina has sent a letter to public schools in the state reminding them of their constitutional duty to avoid promoting religion:

“It’s important that all students know that they’re going back to school to a place where they will be welcome no matter what they believe,” said Victoria Middleton, executive director of the ACLU of South Carolina, in a statement Monday. The group claims to have received numerous reports of religious freedom violations, including complaints that many South Carolina schools impose religion on students.

In response, South Carolina’s education superintendent accused the ACLU of trying to intimidate students from engaging in legitimate religious expression in public places. Sounds like litigation ahead.

 

Green on School Prayer Controversies in the Post-Civil War Period

This month, Steven K. Green, Frank H. Paulus Professor of Law and Adjunct Professor of History at Willamette University (and director there of the interdisciplinary Center for Religion, Law & Democracy) publishes The Bible, the School, and the Constitution: The Clash that Shaped Modern Church-State Doctrine (Oxford University Press).  While we are well acquainted with school prayer controversies of our day, Professor Green traces the “school question” as far back as the post-Civil War years—between 1863 and 1876—when similar controversies, he argues, were already at the forefront of national attention.

See Oxford University Press’s description after the jump.

Continue reading

Resistance to Abington v. Schempp

The Supreme Court’s decision in Abington v. Schempp (holding daily devotional reading of the Bible and recitation of the Lord’s Prayer in public school unconstitutional) is one of the most controversial opinions in the entire religion clause canon, perhaps the most controversial.  This story from a couple of days ago in the NY Times reports that it continues to be resisted.  The story gets several things wrong.  For example, consider this statement: “It has been nearly 50 years since the Supreme Court  ruled that officially sponsored prayer in public schools violated the separation of church and state.”  In the first place, “the separation of church and state” is not a standard that a majority of the Supreme Court uses or has ever used to adjudge the constitutionality of a law or policy.  And in the second, assuming that the reference is to Schempp, it is not true that the Supreme Court decided anything of the kind in that case.  It decided that daily devotional reading of the Bible and recitation of the Lord’s Prayer which was intended by the school as a religious ceremony was unconstitutional.  It much later (decades later) decided in a series of opinions that the inclusion of prayers in other school-sponsored activities was also unconstitutional.  At any event, the story contains some interesting reporting on a current controversy discussed earlier here.

Strasser, “Religion, Education and the State”

If there is one thing that religion clause scholars generally agree on (in fact, there may be only one thing), it is the unsatisfactory quality of religion clause doctrine, and especially Establishment Clause jurisprudence.  Mark Strasser’s (Capital University) new book, Religion, Education and the State: An Unprincipled Doctrine in Search of Moorings (Ashgate 2011), appears to fit squarely within the genre.  The publisher’s description follows.

In the context of education, Church and State issues are of growing importance and appear to be increasingly divisive. This volume critically examines the developing jurisprudence relating to religion in the schools beginning with Everson v. Board of Education, where the US Supreme Court discussed the wall of separation between Church and State. The study traces both how the Court’s views have evolved during this period and how, through recharacterizations of past opinions and the facts underlying them, the Court has appeared to interpret Establishment Clause guarantees in light of the past jurisprudence when in reality that jurisprudence has been turned on its head. The Court not only offers an unstable jurisprudence that is more likely to promote than avoid the problems that the Establishment Clause was designed to prevent, but approaches Establishment Clause issues in a way that decreases the likelihood that an acceptable compromise on these important issues can be reached.

The study focuses on the situation in the US but the important issue of religion, education and the state has great relevance in many jurisdictions.

School Prayer Continues to Raise Controversy

As the new school year begins, the New American reports that some public schools are facing demands to remove prayer from school-sponsored events. Though after the Supreme Court’s ruling in Santa Fe School District v. Doe prayer at school-sponsored events is sometimes unconstitutional as a violation of the First Amendment’s Establishment Clause (see 530 U.S. 290 (2000)) some districts continue to incorporate prayer into events like the first day of school, football games, and graduations.   Most recently, on August 18 the superintendent of the DeSoto County, Mississippi, school district received a letter requesting that district schools remove prayers from school-sponsored events. By August 23 the district complied and announced via a press release that the school board voted to ban prayers at future sporting games. Continue reading

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