Category: Religion

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Employment Division v. Smith

There was a story yesterday about an effort to put a proposition on the San Francisco ballot that would ban male circumcision of children.  Advocates of the ordinance consider the practice a form of child abuse.  Jewish groups, naturally, are opposed.

If such an ordinance were approved, it seems clear that it would be constitutional under the Supreme Court’s analysis in Employment Div. v. Smith.  Smith held that “the right to free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”  In other words, the fact that the circumcision of infant boys is central to the Jewish faith does not create a constitutional privilege from a local ordinance banning the practice (unless you could show that the law was intended as an attack on Jews).

I think that Smith was wrongly decided.  The reason it has stood for as long as it has is that only unpopular religions have been impacted by the case.  A neutral law that hurts a more popular faith (e.g., a total alcohol ban in a town that made holding Catholic Mass impossible) such as the proposed SF ordinance would, I think, lead to a swift about-face by the Court.

My book on Jacksonian Democracy discusses Smith because “disparate impact” and religion was raised during the Cherokee Removal crisis, though the Court was evidently unaware of this precedent when it decided Smith.  Georgia passed a statute that required all whites who wanted to enter the tribal area within the state to swear a loyalty oath to the State.  The Protestant missionaries who wanted to work with the Tribe refused and some were prosecuted and sent to jail.  Their supporters claimed that the Georgia law violated the freedom of religion (not as a federal constitutional matter, but in general). The Georgia legislature issued a report that essentially advanced the Smith rationale:

“The law which has excited so much feeling among our brethren of the eastern states is not partial or exclusive in its operation. . . . Our law in this, as well as other cases, aims at no individuals, and recognizes no exemptions.  Your committee therefore declare that no objection can be urged against the State, with any propriety, upon the score of its inequality, for the State made all men ‘equal under the law.'”

Overall, the debate about the imprisonment of the missionaries tends to undermine Smith, but I can’t do justice to that in a post.

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Book Review: Hirschl’s Constitutional Theocracy

Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010), pp.249, $45.00

Religion-state relations have always been a staple topic in comparative constitutional law scholarship. This is, however, the first work that takes a broad and comprehensive overview of a not-so-new but largely ignored landscape which Ran Hirschl calls “constitutional theocracy.”  This term describes and at the same time, zeroes in on the basic issue that form part of every dilemma with regard to the proper relationship between religion and state.  How does one reconcile divine and man-made law?

In this counterintuitive, rich and fascinating book, Hirschl identifies the prevalence of a new form of political phenomenon called a constitutional theocracy which he situates at the intersection between a pure theocracy and a liberal constitutional democracy. According to him, constitutional theocracy has four elements: first, it adheres to elements of modern constitutionalism including judicial review, second, there is usually an established state religion, third, the religion and its corresponding texts are considered sources of state legislation, and lastly, parallel religious tribunals exist alongside the civil adjudication system.

The conventional understanding is that we should view this development with caution. Hirschl identifies that view with local secular elites who see religion with disdain, both for its seeming irrationality and its propensity for unpredictability. Paradoxically, the solution that secular elites came up with is to embrace this development. To constitutionally incorporate religious symbols and directives is ultimately the most prudent and rational response to the pressures brought about by the rise of political religion. For one, it facilitates the deployment of various means of political control, such as delegation and cooptation. To get from one to the other, Hirschl’s previous work on the origins and consequences of new constitutionalism offers a clue.

In Towards Juristocracy, Hirschl advanced the hegemonic preservation thesis in which threatened political elites who seek to preserve or enhance their hegemony empowered the judiciary to decide even highly political matters in order to insulate policy-making processes from the vicissitudes of democratic politics. One can see similar themes at play in his new book, particularly the divide between secular elites and the religious masses, and the peculiar role of constitutional courts in managing political hot potatoes, which, in this setting, refers to religion.

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Charismatic Megafauna Take the Fall

Recently American thought on ecology has taken a turn in a religious direction. And it’s not toward that boring old talk about a sustainable creation. Rather, a contender for the House Energy and Commerce Committee chair has “maintain[ed] that we do not have to worry about climate change because God promised in the Bible not to destroy the world again after Noah’s flood.” Glad that’s settled.

But nature does still pose a few threats to us. Reacting to a recent bear attack in Yellowstone, the American Family Association’s Director of Issues Analysis has stated that “there is no number of live grizzlies worth one dead human being. If it’s a choice between grizzlies and humans, the grizzlies have to go. And it’s time.” Sharks, rattlesnakes, scorpions, pit bulls, and even golden retrievers had better watch out!

Perhaps Werner Herzog’s film Grizzly Bear shaped Fischer’s imagination. As Herzog stated in the film:

And what haunts me, is that in all the faces of all the bears that [the protagonist of Grizzly Bear] ever filmed, I discover no kinship, no understanding, no mercy. I see only the overwhelming indifference of nature. To me, there is no such thing as a secret world of the bears. And this blank stare speaks only of a half-bored interest in food. . . . I believe the common character of the universe is not harmony, but chaos, hostility, and murder.”

Perhaps Fischer is just throwing back at the universe its nasty tendency to disregard us.

Photo Credit: Joseph Wu Origami.

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The Texas Pledge of Allegiance

A few days ago, the Fifth Circuit Court of Appeals rejected an Establishment Clause challenge to the Texas pledge of allegiance. In 2007, the Texas legislative added the words “under God” to the state’s pledge. In evaluating the Establishment Clause claim, the court relied in part on the endorsement test, which asks whether a reasonable person, aware of the history and context of the challenged practice, would conclude that the government was endorsing religion. The Fifth Circuit held that a reasonable person would “conclude that the pledge remains a patriotic exercise” and that the new version “acknowledges but does not endorse religious belief.” Most courts to decide the issue have agreed with the Fifth Circuit.

I do not. Am I an unreasonable person? Before you answer, consider some feminist critiques of another reasonable person standard – specifically the reasonable person standard in Title VII sexual harassment cases. Early sexual harassment plaintiffs would have their claims dismissed when courts held that a reasonable person would not find that the work environment was hostile or abusive. For example, a court dismissed a claim even though it conceded that the humor in the workplace was “rough-hewn and vulgar” and that sexual jokes and “girlie magazines” were plentiful.

Feminist commentators identified three problems with these early sexual harassment decisions. First, feminists noted that due to societal inequalities that affected men’s and women’s life experiences, men and women have different perceptions of what constitutes harassment. For example, because women are at much more risk of sexual violence than men, sexual conduct that may seem like harmless fun to reasonable men can seem like a threat of violence to reasonable women. Second, feminists pointed out that the courts tended to equate the reasonable man’s reaction with a reasonable person’s reaction, and that this male norm was invisible to the usually male judges applying it. In other words, judges were unaware that they were presenting a subjective male perspective as an objective universal perspective. Third, the failure to recognize use of the unstated male norm perpetuated male privilege and power asymmetries instead of rectifying them – the actual goal of Title VII of the Civil Rights Act.

Each of these critiques applies equally to the Fifth Circuit’s analysis of “under God” in the pledge. First, just as your sex may inform your evaluation of sexual harassment, your religion may matter when evaluating government endorsement of religion. The phrase “under God” may seem perfectly harmless and totally nonsectarian to Jews, Catholics, Protestants, and Greek Orthodox. Such a reading is less likely if you are a Hindu, or a Buddhist, or an atheist, however, and do not worship or believe in God.

Second, the reasonable person in current Establishment Clause analysis is really a person belonging to the Judeo-Christian tradition. Like the unstated male norm in early sexual harassment evaluations, this unstated norm is presented as the universal, objective norm and is often invisible to those applying it. Thus, the Fifth Circuit can concede that a state reference to God “may not reach every belief system” but nonetheless still characterize it as “tolerable attempt at acknowledging religion without favoring a particular sect or belief.”

The third feminist insight — that the failure to recognize the unstated norm perpetuates power asymmetries and privilege — is also true here. Just as tolerance of sexual harassment made it easier to exclude women from the workplace and reinforced their second-class status, the proliferation of state invocations of God makes it easier to exclude religious outsiders from the political and social community and reinforces their second-class status. Yet one of the major goals of the Establishment Clause is supposed to be to protect religious minorities from precisely this result.

For more, please check out my new article: Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. REV. 1545 (2010).

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The Twentieth Anniversary of Employment Division v. Smith

I have just returned from an excellent conference at Cardozo on Employment Division v. Smith, decided 20 years ago. In that case, the Supreme Court held that, with a couple of exceptions, religious observers are not entitled to free exercise exemptions from laws that are both neutral and generally applicable. More particularly, even the sacramental use of peyote did not justify a free exercise exemption from the neutral, generally applicable drug laws banning its use. Previously, religious observers were entitled to a free exercise exemption from a law that imposed a substantial burden on their religious practice unless that law passed strict scrutiny.

The conference request was for short provocative arguments. Here’s mine: it would be perfectly constitutional for the government to condition tax breaks for nonprofit organizations on compliance with anti-discrimination law. In particular, it would not violate the free exercise clause to deny tax exempt status to churches or other religious institutions that argue that their religion requires them to discriminate on the basis of race and sex.

A law denying tax exempt status to nonprofits that invidiously discriminate would easily satisfy the Employment Division v. Smith standard. As long as the law did not target religion, as a law denying tax benefits to religious nonprofits might, and as long as it applies to all nonprofits without exception, so that it can be considered generally applicable, it should raise no free exercise problems.

In fact, the federal government already denies tax exempt status to religious organizations that invidiously discriminate on the basis of race. Indeed, even before Employment Division v. Smith was decided the Supreme Court rejected a free exercise challenge to the IRS’s revocation of tax exempt status of two religious schools, one of which banned interracial dating for religious reasons, and one of which refused to admit black students, also for religious reasons. In Bob Jones University v. United States, the Supreme Court held that the IRS regulation passed strict scrutiny. The policy has since been expanded to cover churches as well.

There is no good reason not to expand this policy to religious organizations that invidiously discriminate on the basis of sex. Just as the government does not subsidize religious institutions including churches that discriminate against blacks, nor should it subsidize those that discriminate against women.

This approach – which allows religious institutions to discriminate but denies them tax benefits – strikes a fair balance between religious freedom and equality. It respects religious liberty because it does not ban churches from fulfilling their religious requirements. But it also promotes equality by refusing to subsidize invidious discrimination, and by ensuring the state does not put its imprimatur on the message that is it acceptable to treat anyone as second class because of their race or sex.

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Book Review: Barringer-Gordon’s The Spirit of the Law and Eisgruber and Sager’s Religious Freedom and the Constitution

Sarah Barringer-Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America (Belknap/Harvard University Press: Cambridge, 2010) pp. 316

Christopher Eisgruber & Lawrence Sager, Religious Freedom and the Constitution (Harvard University Press: Cambridge, 2010, Paperback) pp. 352

Everson v. Board of Education is one of the most important and well-known Supreme Court cases for two reasons. First, it finally incorporated the Establishment Clause to apply to both the states as well as the federal government and second, it ushered in Thomas Jefferson’s “wall of separation” metaphor into the jurisprudence of the Religion Clauses. Both of these developments are at the heart of the two books we have under consideration.

Sarah Gordon’s engaging new book, The Spirit of the Law, takes a look at the flesh-and-blood stories surrounding some of the cases that flooded the Supreme Court in the post-Everson period, or what the author calls the “new constitutional world.” Through five distinct but interwoven histories of people and groups which have shaped the ever-fluid contours of the constitutional law of religion, we are invited to view the present constitutional world through the struggles of those who fought to have the law protect the mandates of their respective faiths. These stories would not have been possible without the collapse of the old regime that was largely powered by state law.

As Gordon describes in the first few pages, there are three distinct constitutional landscapes in American history that is more or less reflected in the trajectory of the nation’s religious history. The first period covers the Founding up to more or less the middle of the nineteenth century while the second period covers mostly the period after the last state disestablishment up to the promulgation of Everson. Gordon situates the stories of the Mormons, the Salvation Army and the Jehovah’s Witnesses during this second period. Interestingly, this long nineteenth century also saw the rise of a moral establishment where, despite the earlier state disestablishments, laws and other social reform measures were undergirded by the notion that Christianity formed part of common law. State attempts to enforce their monopoly on adjudicating religious issues were met by the persistence and creativity of believers who sought to bring to life the promise of liberty embedded in the Religion Clauses.

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Commodifying Caring

Roger Scruton has complained that, in our society, “too many goods have a price.” He makes a Walzerian argument that certain experiences cannot be bought and sold without doing violence to their ultimate social meaning:

A century and a half ago John Muir in America and John Ruskin in England initiated the movement to save our world from spoliation. They rightly understood that nothing would  be saved if we simply defend it on economic grounds. A valley might be useful as farmland, but it might be even more useful as a reservoir or an opencast mine. Only if we recognize the intrinsic value of nature will it be proof against our predations; hence we should esteem landscapes and forests for their beauty, for their sacred quality, for the part they play in defining us and ennobling our settlements, rather than for their use. Only this will keep the market at bay and prevent us from consuming our world. . . .

Love is priceless, not because its price is higher than we can pay, but because it cannot be purchased but only earned. Of course, you can purchase the simulacrum of love, and there are people who are accomplished providers. But love that is purchased is only a pretense. Goods like love, beauty, consolation, and the sacred are spiritual goods: they have a value, but no price.

Economists don’t like spiritual goods. Such goods are connected to us not as things to be used, consumed, and exchanged but as parts of what we are. To lose them is to lose ourselves.

Perhaps the ultimate revenge of the economic mindset on commitments like Scruton’s is the rise of the caring industry, which Ronald W. Dworkin incisively examines in a recent article:

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Book Review: Richards’s Fundamentalism in American Religion and Law

David A.J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, Cambridge University Press, 2010.

“Fundamentalist religious doctrines and autocratic and dictatorial rulers will reject the ideas of public reason and deliberative democracy.”

Mr. Richards takes the epigraph (in full, above) to his volume from a late essay by John Rawls, “The Idea of Public Reason Revisited,”  in which fundamentalist doctrines—whose comprehensive vision of the truth conflicts with the principles of deliberative democracy—are presented as a threat to a reasonable and just society.  Rawls was content to state his case, as the epigraph shows, in a measured tone.  One finds less restraint and greater risk in Richards, whose spirited challenge to religious and legal fundamentalism is noisy, passionate, and deeply personal.
As the courts have led the United States closer to civility, permitting women and gay men to participate in democracy as free and equal citizens, the reactionary forces of fundamentalism have struggled to keep the newly liberated in a state of “moral slavery” (e.g., 31) where women are considered weak-willed and best kept for child-rearing, and homosexuality a vice.  “Moral slavery” is the status quo ante bellum, a return to the hierarchical order that governed before the culture wars, before the civil rights movement and the progressive recognition of the right to intimate life.  Each fundamentalism is a project of restoration: originalism that reads the Constitution as though over Madison’s shoulder; New Natural law that draws moral principles from the vanguard of the 13th century; Protestant fundamentalism that insists on demonizing homosexuality based on a literal reading of scripture; the theology of Joseph Smith that promotes the sexual order of the (original) patriarchs.  These Edenic visions of a world that once was ordered as fundamentalists would have it ordered—these rejections of Rawls’ principle of public reason—are what Richards finds so dangerous, and against which he writes so movingly.

Even a sympathetic reader will have quibbles.  When, for instance, Richards writes in his critique of the unreasonableness of originalism that “[n]o approach to constitutional interpretation may be regarded as reasonable if its leading advocates never pursue its requirements consistently” (54), one wonders what he means by “leading advocates,” “never pursue,” “requirements,” and “consistently.”  So much has been written about originalism that one is inclined to believe it exists, but Richards’ slippery language does little to raise the phantom, and does far less to dispel it.  The same may be said for fundamentalism and for patriarchy, neither of which are well defined.  The word “originalism” is, in the volume under consideration, a circumlocution meant to call forth Scalia and Thomas, Bork and Berger without naming them individually.   Too much is made of the ideologues whose personalities are, after all, public projections of greater intellectual consistency than is to be found in the projectors, and too little is made of fundamentalism as a public event.  One may speak about John Finnis and Billy Sunday, but having done so what has been said?  Have the prejudices of the average fundamentalist, whoever or whatever that is, come into clearer focus?  Are the names of “leading advocates” the only clarity to be had?

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Book Review: Richards’s Fundamentalism in American Religion and Law

David A.J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, Cambridge University Press, 2010, $90.00.

When you read the words “This is a provocative book” in a review, you know you’re in the presence of a mixed compliment.  On the one hand, the critic will praise the book for saying something new, interesting, and potentially valuable about an important topic.  On the other, it signals that the critic thinks there is something deeply flawed, wrong, or misguided about the book, and has reached for polite language to damn it with faint praise.

With that said, let me be clear: In Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, David A.J. Richards has written a provocative book.

Its ungainly title gives a fair indication of its thesis, but Richards’ book is not so easily reducible.  This is not your average jeremiad.  Richards is not content simply to condemn an approach to both religion and constitutional interpretation that he finds dangerous.  Instead, he wants to diagnose it: to put it on the psychologist’s couch and toy with its innards.  Richards offers a vision of constitutional and religious critique as DSM-IV.

Fundamentalism, both in religion and in American constitutional law and particularly originalism, are “rooted in a patriarchal psychology,” Richards writes.  By patriarchy, he means “a hierarchy – a rule of priests,” in which “only the father has authority in religion, politics, or law.”  Its roots are both historical and personal.  It represents a tradition stretching back to ancient Rome, and taking in most especially the life and influence of St. Augustine, in which patriarchy “arises [from] traumatic breaks in personal relationships (including of sons from mothers).”  This leads to a fundamentally repressive approach to both law and religion.  Its opposite is “democracy, in which authority accords everyone a free and equal voice, a voice that both breaks out of the gender binary and contests hierarchy.”  More in anger than in sorrow, Richards argues that religious and constitutional patriarchs are, not to put too fine a point on it, sick, while those who favor “democracy” are healthy, integrated individuals.  His primary positive example is Barack Obama, who “has seen more deeply into and resisted originalism than any other American politician,” and whose “moral voice” has elicited a profound “resonance in the American people.” Read More

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Bargaining in the Shadow of God’s Law

For those who care about such things, I have a new paper up on SSRN entitled “Bargaining in the Shadow of God’s Law: Islamic Mahr Contracts and the Perils of Legal Specialization.” This one looks at the treatment of Islamic marriage contracts by American courts, and was written for Wake Forrest’s recent symposium on context and contract law. Enjoy! (The abstract is after the jump) Read More