Category: Religion


Law Talk: Oman on Civil Cases in Church Courts

Last week I attended the annual meetings of the American Society for Legal History in Tempe, Arizona. It was a great conference and compared, say, to the AALS meetings all of the presenters had clearly actually written and thought out their presentations before hopping on the plane. In this week’s episode I am broadcasting my own presentation at the conference. In early America many religious denominations tried to move civil disputes between church members into church courts, and lately I have been going through the records of Mormon church courts to see how the dealt with contract cases. As part of that research, I’ve written a paper that looks at the development of the Mormon judiciary, why Mormons sought to bring civil litigation within the church, and why they abandoned the effort around 1900. (I put up a short, preliminary version of my paper on SSRN.) My ASLH presentation shares some of my conclusions from that paper, which will be sent off to the law reviews this spring.

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Jeffries on SCHIP

My colleague Shavar Jeffries has been a powerful moral voice at BlackProf on a number of issues affecting children, including school vouchers. I found his take on the recent SCHIP debate extraordinarily compelling:

In the third presidential debate in 2004, the President reiterated that “[my] principles are derived from who I am. I believe we ought to love our neighbor like we love ourself . . . . And so my principles that I make decisions on are a part of me. And religion is a part of me.”

So I ask: Would Jesus have vetoed the SCHIP bill?

Of the over 43 million Americans lacking health insurance, about eight million are children. Not only does this mean that millions of children are unable to access the care they need to treat debilitating illnesses, it also means they cannot obtain the preventive care and counseling that protects against sickness and promotes wellness.


The congressional bill would have added $7 billion to the program in each of the next five years, enabling S-CHIP to cover an additional 4 million children. This, evidently, was too much for the President to bear. He vetoed the bill, claiming that it would cover too many middle-class families, would encourage those with private coverage to switch to S-CHIP, and would represent an unjustifiable step toward government-managed health-care. These rationales, however, are unsupportable.


So what would Jesus do? I think the answer is clear: “Whatever you neglected to do unto one of the least of these, you neglected to do unto Me.”

I admit that sometimes the application of religious principles to social problems can lead to a variety of solutions. And at least in Catholic social thought, the principle of subsidiarity may temper the desirability of any federalization of the system, as Susan Stabile notes in “Poor” Coverage: The Preferential Option for the Poor and Access to Health Care. Nevertheless, Stabile also notes that “We can not have adequate respect for the dignity of the human person without a system that ensures that all people have the ability to receive medical care when they need it.” SCHIP expansion would have been a step in that direction.

Gaining the Whole World

I want to respond to Ilya Somin’s claim that religious leaders need to learn (some version of) economics before opining on social justice. A curious editorial by Arthur Brooks provides a nice entree into the topic.

Mr. Brooks writes frequently on the WSJ editorial page on charity and religion. He lauds the charitable sector as superior to government-funded services, and offers survey evidence to demonstrate that religious people are both more charitable and happier than their secular peers. Brooks found the revelation of Mother Teresa’s profound and persistent sorrow a reason to re-emphasize that fact that, on average, the religious are statistically more likely to be happier than others:

The happiness gap between religious and secular people is not because of money or other personal characteristics. Imagine two people who are identical in every important way — income, education, age, sex, family status, race and political views. The only difference is that the first person is religious; the second is secular. The religious person will still be 21 percentage points more likely than the secular person to say that he or she is very happy.

On one level, I think this is important data: a classic premise of natural law is that submission to right belief and right action makes for genuine happiness. You only need to watch a few episodes of “Behind the Music” to get a sense of where untrammeled hedonism will lead.

However, the failthful also embrace the negative emotions associated with religious experience. A religious person may feel guilt or self-reproach at how little he’s done to relieve the world’s suffering. Penance is not a fun experience. Perhaps the Book of Ecclesiastes put it best: “in much wisdom is much grief: and he that increaseth knowledge increaseth sorrow.” As Kierkegaard critiqued a complacent Christendom, so too should the modern believer question any effort to facilely align personal/national prosperity and Christian teaching.

I thus question Brooks’s “validation” of religious faith by its statistical correlation to “happiness”–particularly the crude measures of that state common to survey instruments. Much of religious thought refuses to be contained in our ordinary notions of well-being or success, a point eloquently made in the series of paradoxes posed in the prayer of St. Francis.

These paradoxes also render suspect the many suggestions of market-oriented thinkers that church leaders need to conform social teaching to particular economic models.

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Polygamy: Is the slope really slipping?

Matt Yglesias thinks so. Quoting a NYT piece, he suggests that the slope is slipping — that legalized gay marriage is leading to . . . um, what?

Well, apparently it’s leading to some broader acceptance of the idea of polygamy between consenting adults. Is that really slope slippage?

Yglesias notes the article’s discussion of broader social acceptance for polygamy. In addition, as a number of articles and court cases have pointed out, anti-polygamy laws are not currently enforced for stand-alone violations. In this regard, they currently look a lot like the (now invalid) anti-sodomy laws, which were also, in recent decades, not typically enforced for stand-alone violations but as added offenses in other prosecutions. (See, e.g., Christoper Leslie’s Standing in the Way of Equality, 2001 Wisconsin Law Review 29 (2001).)

However, there are important areas in which the slope is definitely _not_ slipping. In particular, polygamy rights advocates have failed, so far, in attempts to decriminalize polygamy or to secure marriage rights. Recent cases include the 10th Circuit’s dismissal of Bronson v. Swensen (polygamists seeking a marriage license), and the Utah Supreme Court’s holding in State v. Holm (upholding criminal statute, post-Lawrence).

Public opinion may be changing, slowly. Enforcement has certainly changed in recent years. But for the moment, in important places, the slope isn’t slipping at all.

Lilla on “The Great Separation”

Mark Lilla made an impression on me when he made the following point about intellectuals’ discomfort with “ultimate questions:”

It is not that anyone thinks that incivility, promiscuity, drug use, and irresponsibility are good things. But we have become embarrassed to criticize them unless we can couch our objections in the legalist terms of rights, the therapeutic language of self-realization, or the economic jargon of efficiency.

Lilla’s forthcoming book “The Stillborn God: Religion, Politics and the Modern West” is excerpted in the NYT Mag this week. He traces the intellectual history of western conceptions of tolerance and freedom of conscience, exploring the historical contingency of commitments most of us take as second nature.

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Of Foxes, Hedgehogs, and Splitting Babies

kingsolomon 1.jpgLarry Solum takes the interesting continuing cross-blog discussion of foxes and hedgehogs started by Belle Lettre — including this blog’s own entry from Dan Filler — in a new direction by pointing out, politely, that the fox/hedgehog imagery is being used incorrectly. Go read Larry’s explanation, and then be sure to stay around for his delightful integration of the refined definition back into the discussion.

It made me think of other historical or literary images that are misused in modern legal discourse because so many of us are insufficiently familiar with them. I claim absolutely no high ground here — surely I do it myself. But the one that drives me crazy is “splitting the baby.” It may be objectionable as a cliche anyway, but it is even worse when used incorrectly.

In general “split the baby” gets used as a substitute for “split the difference,” “half a loaf,” or, more simply, “compromise.” (Thus explaining its frequent occurrence in legal discussions…) It shows up in that sense in places I otherwise love, like the Wall Street Journal Law Blog and NPR reports by Nina Totenberg.

The phrase originates in the Bible, specifically 1 Kings 3:16-28. Two women come before wise King Solomon, both claiming fervently to be the mother of an infant. Solomon calls for his sword and declares that he will cut the baby in two and give one half to each woman. When the true mother cries out in anguish, Solomon knows which woman should keep the child. If he had actually cut the child in half, of course, he would be remembered as a mad tyrant like Caligula and not the epitome of wise judicial temperament. Yet you might think from some lawyers’ metaphorical uses of the phrase that cutting a baby in half was laudable. One of the oldest literary or historical models of good judging deserves better from us.

Any other nominees?

[Cross-posted at Info/Law]


More on Quasi-Official Policies of Not Prosecuting Polygamists

From a fascinating Reuters article:

The attorneys general of Utah and Arizona said in separate interviews they had no intention of prosecuting polygamists unless they commit other crimes such as taking underage brides — a practice authorities said was rampant in a Utah-Arizona border community run by Warren Jeffs before his arrest in August.

“We are not going to go out there and persecute people for their beliefs,” said Arizona Attorney General Terry Goddard.

Adds Utah Attorney General Mark Shurtleff: “We determined six or seven years ago that there was no way we could prosecute 10,000 polygamists and put the kids into foster care. There’s no way that we have the money or the resources to do that.”

I can see why pragmatic considerations would weigh against broad criminal enforcement here. It kinda sounds like the widespread pre-Lawrence environment of mostly non-prosecution of stand-alone violation of anti-sodomy laws. I wonder if that’s a sign of the eventual fate of criminal bigamy laws . . .


Tribal Scholarship

I have put up a couple of posts here on my on-going research on the resolution of civil disputes in ecclesiastical courts and Mormon legal history. Earlier this week, I presented my research to a faculty workshop at William & Mary. (I’ve also put up a copy of my preliminary research on SSRN.) In addition to ordinary trepidation of the untenured presenting research before the future members of the tenure committee, I had an extra level of anxiety as I presented my paper.

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Three Generations of Mormon Legal History

In the shameless self-promotion category, I have a new paper up on SSRN for your enjoyment. I have put up a couple of posts in the past here and elsewhere on Mormon legal history. My new SSRN paper — “Three Generations of Mormon Legal History: A Historiographic Introduction” — is meant as a primer on the subject for legal scholars interested in legal history or law and religion, as well as an argument about how I think the practice of Mormon legal history could be improved. Here is the abstract:

This is an essay on the past practice and future possibilities of Mormon legal history. For most legal scholars, the fact that there even is such a thing as “Mormon legal history” comes as a surprise, and the idea that it “should be proved . . . to be worthy of the interest of an intelligent man” may sound dubious at best. In part, such a reaction stems from the marginal status of Mormons. At a broader level, however, the invisibility of Mormon legal history is simply part of the broader problem of the discussion of religion within the legal academy. The thesis of this essay, however, is that the relative invisibility of Mormon legal history lies mainly in the idiosyncratic intellectual development of Mormon legal historiography itself. By explaining that development and introducing the work that has already been done on Mormon legal history, I hope to assist future scholars to better integrate Mormon legal experience into the mainstream discussions of the legal academy.