This is a very interesting column by Winnifred Fallers Sullivan which expresses succinctly her particular brand of anti-separationism with respect to the proper relationship of church and state. The column is rich with insights and repays close reading, even though I am in substantial disagreement with at least some parts of it. Specifically, I am far less skeptical than she is that certain (though not all) older understandings of separationism remain vitally important, and far less sanguine that doing away with those older understandings would be a healthy legal or political development, either for the sex abuse crisis that she describes or for many other controversies.
Hanna, “Naked Truth”
From the University of Texas Press, a new book arguing that legal restrictions 
on strip clubs are part of a theocratic plot to supplant constitutional government in America: Judith Lynne Hanna, Naked Truth: Strip Clubs, Democracy, and a Christian Right (2012). Who knew? The publisher’s description follows.
Across America, strip clubs have come under attack by a politically aggressive segment of the Christian Right. Using plausible-sounding but factually untrue arguments about the harmful effects of strip clubs on their communities, the Christian Right has stoked public outrage and incited local and state governments to impose onerous restrictions on the clubs with the intent of dismantling the exotic dance industry. But an even larger agenda is at work, according to Judith Lynne Hanna. InNaked Truth, she builds a convincing case that the attack on exotic dance is part of the activist Christian Right’s “grand design” to supplant constitutional democracy in America with a Bible-based theocracy.
Hanna takes readers onstage, backstage, and into the community and courts to reveal the conflicts, charges, and realities that are playing out at the intersection of erotic fantasy, religion, politics, and law. She explains why exotic dance is a legitimate form of artistic communication and debunks the many myths and untruths that the Christian Right uses to fight strip clubs. Hanna also demonstrates that while the fight happens at the local level, it is part of a national campaign to regulate sexuality and punish those who do not adhere to Scripture-based moral values. Ultimately, she argues, the naked truth is that the separation of church and state is under siege and our civil liberties—free speech, women’s rights, and free enterprise—are at stake.
Van Kempen on Freedom of Religion and Criminal Law
Piet Hein Van Kempen (Radboud University Nijmegen) has posted a new piece on SSRN, Freedom of Religion and Criminal Law: A Legal Appraisal–From the Principle of Separation of Church and State to the Principle of Pluralist Democracy?. The abstract follows.
This paper discusses how criminal law and religion should or should not be involved with each other from the point of view of the right to freedom of religion. With that in mind the paper addresses several interrelated questions. What does the principle of separation of church and state require, what interests does it serve, and does it allow for criminal law measures that are explicitly concerned with matters of religion or belief? What does the human right to freedom of religion in general imply about the relation between state and religion? To what extend does the right to freedom of religion oppose, allow or require criminal law measures that deal explicitly with religion or belief? Issues discussed here are e.g. blasphemy, apostasy, an proselytism. And finally: is the principle of pluralist democracy better suited to regulating the relation between the state and religion when it comes to criminal law than the separation principle? As regards the analyses of international human rights law, the emphasis of this contribution is the International Covenant on Civil and Political Rights (ICCPR, 1966) and the European Convention on Human Rights (ECHR, 1950). The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (the 1981 UN Declaration), the American Convention on Human Rights (ACHR, 1969), and the African Charter on Human and People’s Rights (AfChHPR, 1981) will be considered insofar as these instruments or the jurisprudence based thereon provide relevant direction on the issues under discussion.
Litigating Religion Redux
I’ve been editing the latest draft of my forthcoming article “Litigating Religion” in anticipation of presenting the piece at this year’s Stanford/Yale/Harvard Junior Faculty Forum (I’ve also been pleased to have the piece discussed previously on the CLR Forum here and here). The primary thesis of the article is that the Establishment Clause should not be interpreted to prohibit courts from adjudicating religious questions; instead, it should be interpreted to prohibit courts from adjudicating claims properly within the province of religious institutions. Put differently, courts should resolve religious disputes where no other religious institution is capable of doing so.
One section of the article is dedicated to discussing court cases that raise religious questions, but where there is no religious institution that has an interest and the authority to resolve the dispute. Given that I’m always looking for more examples, I was particularly pleased to see a post from Eugene Volokh about a 2007 case (only recently posted on Westlaw) that fits the bill where a court refused to enforce an arbitration provision that called for the appointment of “Three Orthodox Rabbis” as arbitrators. The court refused to enforce the provision on the grounds that “[t]he Establishment Clause of the First Amendment prohibits a civil court from resolving issues concerning religious doctrine and practice.” Thus determining whether an arbitrator is Orthodox – so as to satisfy the arbitration agreement – would run afoul of the First Amendment. Instead, the court severed this provision from the arbitration agreement and authorized each party to select an arbitrator and have those two arbitrators select a third. As the court noted, “[a]lthough the provision requiring orthodox arbitrators is unenforceable, the parties are free to select arbitrators, who in their own judgment, meet the religious requirement.”
But is this the preferred outcome?
Garnett on the Ministerial Exception
The on-line interview series, Dialogues on Law and Justice, first noted by my colleague Mark, has posted a very useful and informative dialogue with Rick Garnett (Notre Dame) about the ministerial exception; the Hosanna-Tabor case and the several positions of the government, the legal academy, and the Court; some of the mechanics of Supreme Court cert. review; the relationship of the ME to other free exercise issues; and the various meanings of church-state “separation.” Check it out.
Blitt on the Secular Influence of the Russian Orthodox Church
Robert C. Blitt (University of Tennessee College of Law) has posted Whither Secular Bear: The Russian Orthodox Church’s Strengthening Influence on Russia’s Domestic and Foreign Policy. The abstract follows.
As 2012 presidential elections in Russia draw near, evidence points to a collapse in that country’s constitutional obligation of secularism and state-church separation. Although early signs of this phenomenon can be traced back to the Yeltsin era, the Putin and Medvedev presidencies have dealt a fatal blow to secular state policy manifested both at home and abroad, as well as to Russia’s constitutional human rights principles including nondiscrimination and equality of religious beliefs.
Read more
Oversight Committee Holds Hearing on HHS Contraception Mandate
Congress’s Committee on Oversight and Government Reform is currently holding a hearing on the Administration’s HHS contraception and abortifacient mandate. The title of the hearing is, “Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?” The hearing is being live-streamed at the attached link.
The Blurring of Church-State Lines?
Jacques Berlinerblau (Georgetown) has offered up a list of “top 10 religion and politics stories to watch” which made it onto the Washington Post. Among other stories, he includes this as Number 3:
3. Justice Kagan’s Dissent in Arizona School Tuition Organization v. Winn, et al: In her first dissent–and a crackling one at that–Justice Elena Kagan lamented how difficult it had become for citizens to bring establishment clause cases to the Court’s attention.
She warned that the decision “offers a roadmap—more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge… No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts.”
Still, Kagan’s demurral reminds us that 2011 was not a good year for those opposed to the blurring of church/state lines.
Berlinerblau does not offer many specifics about which cases or other controversies he believes “blurr[ed] chuch/state lines,” but I wonder which ones he might mean. He does mention Mayor Bloomberg’s decision to prohibit any clergy member from saying anything religious at the 10th anniversary of the September 11 attack. This comes in at number 7 on his list. Berlinerblau praises Mayor Bloomberg for “hold[ing] his ground” and he urges other “[s]ecularists” to “study the episode carefully if they want to prevail again.” But that seems like a moment that does not fit into the otherwise blurry year.
Coming in at Number 6 on this list looks like the effort of Bronx Household of Faith to use public facilities on equal terms with everyone else. I guess this, listed under the title of “The Swashbuckling Evangelicals,” is what the blurring refers to — an effort by a religious group which “never stops, never thinks small, and is afraid of nothing” to use a public facility in the same way that other groups are allowed to do so. But Berlinerblau should be happy about the outcome here: Bronx Household of Faith lost at the 2d Circuit, and its cert. petition was denied by the Supreme Court. No blurring at all.
Finally, at Number 10, Berlinerblau lists the so-far inchoate possibility that Occupy Wall Street and the “Religious Left” join forces, “with crafty Obama operatives forging those bonds and reaping the rewards.” According to Berlinerblau, this has not yet happened, but he describes it as a “missed opportunity.” Yet that this has not happened also does not seem to fit the blurring-of-church-and-state narrative which seasons the rest of the column.
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.
“Keep Christ in Christmas” Banner Rankles FFRF
A story out of Pitman, New Jersey. It seems that a local chapter of the
Knights of Columbus has hung a banner, attached on both sides to private property but spanning a public street, stating, “Keep Christ in Christmas.” There is no question that the Knights are responsible for the banner, since it says so right on the banner itself.
The Freedom From Religion Foundation, however, has asked the town to remove it. But as the mayor points out, the banner is actually affixed to private property, so it is not exactly clear that the town has the authority to take it down, even if it wanted to. (There seems to be some disagreement in the news stories I looked at about exactly what the sign is attached to; some stories say private property, others say public streetlamps and such. This may be an important fact legally.)
Undaunted, FFRF is now searching for a suitable place to display its own sign: “At this season of the Winter Solstice, may reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition that hardens hearts and enslaves minds.” No word yet on whether they have found a banner big enough.