Birge, “Marriage and the Law in the Age of Khubilai Khan”

In June, the Harvard University Press will release “Marriage and the Law in the Age of Khubilai Khan: Cases from the Yuan dianzhang,” by Bettine Birge (University of Southern California).  The publisher’s description follows:

The Mongol conquest of China in the thirteenth century and Khubilai Khan’s founding of the Yuan dynasty brought together under one government people of 9780674975514-lgdifferent languages, religions, and social customs. Chinese law evolved rapidly to accommodate these changes, as reflected in the great compendium Yuan dianzhang (Statutes and Precedents of the Yuan Dynasty). The records of legal cases contained in this seminal text, Bettine Birge shows, paint a portrait of medieval Chinese family life—and the conflicts that arose from it—that is unmatched by any other historical source.

Marriage and the Law in the Age of Khubilai Khan reveals the complex, sometimes contradictory inner workings of the Mongol-Yuan legal system, seen through the prism of marriage disputes in chapter eighteen of the Yuan dianzhang, which has never before been translated into another language. The text includes court testimony—recorded in the vivid vernacular of people from all social classes—in lawsuits over adultery, divorce, rape, wife-selling, marriages of runaway slaves, and other conflicts. It brings us closer than any other source to the actual Mongolian speech of Khubilai and the great khans who succeeded him as they struggled to reconcile very different Mongol, Muslim, and Chinese legal traditions and confront the challenges of ruling a diverse polyethnic empire.

McGinnis on the Roberts Opinion in King v. Burwell

This isn’t about law and religion, but readers might enjoy John McGinnis’s essay in the City Journal on last week’s decision in the Affordable Care Act case, King v. Burwell. John argues that Chief Justice Roberts’s opinion is principled, though wrong, on statutory interpretation. Did I mention John cites my early scholarship on statutory interpretation? My salad days, before I discovered law and religion.

If you read only one amicus brief in the Hobby Lobby case…

Read this brief authored by Douglas Laycock on behalf of the Christian Legal Society and several other groups. Professor Laycock was right in the center of the legislative debates over the meaning of RFRA in the 1990s. In exploring the meaning of RFRA and its application, the brief describes those debates in very helpful detail, and it also discusses the legislative history of the Religious Liberty Protection Act, a statute that was in the offing (but ultimately was never passed, though portions of it made their way into the Religious Land Use and Institutionalized Persons Act, and portions were used to strengthen RFRA) after the Supreme Court struck down RFRA as applied against the states as in excess of Congress’s enforcement powers under section 5 of the 14th Amendment. Laycock demonstrates that Congress clearly intended RFRA (as well as RLPA) to apply to for-profit corporations, and reflected that intention in the words of the statute. There were many special interests that desired exemptions from RFRA. Those exemptions were rejected.

The Hobby Lobby and Conestoga Wood cases are, at bottom and after the swirling political fog is blown away, about the meaning of a statute. Professor Laycock’s brief is an important contribution in ascertaining that meaning. Here is the summary of the argument:

The Religious Freedom Restoration Act provides universal coverage. It applies to “all” federal law and to “all” cases where the free exercise of religion is substantially burdened.

The legislative history confirms the universality of the statutory text. The sponsors resisted all efforts to add exceptions to coverage. A definition in an early version of the bill, limiting coverage to “natural persons” and religious organizations, was eliminated in all later drafts.

After this Court invalidated RFRA as applied to the states, Congress sought to re-enact RFRA’s standard, in substantively identical language, for application to cases that could be reached under the Commerce and Spending Clauses. The debates on this bill, the Religious Liberty Protection Act (RLPA), reveal the public meaning of the nearly identical language in RFRA. The RLPA debate is highly probative because it was a serious fight on a live issue. It was not in any sense an attempt to make post enactment legislative history about RFRA, but it clearly demonstrates the public meaning of RFRA’s language.

Continue reading

%d bloggers like this: