Conference at EUI (Florence) on The Roberts Court and the Protection of Religious Freedom in the United States

I am delighted to be participating this Wednesday in a conference at the European University Institute in Florence, Italy, on The Roberts Court and the Protection of Religious Freedom in the United States, organized by Center friends Olivier Roy and Pasquale Annicchino. Regretfully, my intervention will be virtual rather than in person. Here’s the description of the conference (in Italian) and the program:

Contesto 

John Glover Roberts Jr. è stato nominato Chief Justice della Corte Suprema degli Stati Uniti il 22 settembre 2005, nomina confermata una settimana dopo dal Senato con 78 voti favorevoli e 22 contrari. In questi 9 anni si sono succedute numerose decisioni di assoluto rilievo del massimo organo giurisdizionale statunitense. Tra queste alcune hanno portato a definitivo compimento una nuova interpretazione ed una differente applicazione delle due clausole del primo emendamento costituzionale che si occupano di libertà religiosa: la Free Exercise Clause e la Establishment Clause. Dopo aver inquadrato nel contesto storico e politico la presidenza Roberts, questo workshop intende esaminare le principali pronunce della Corte Suprema sulla libertà religiosa.

Ogni relatore sarà chiamato a commentare una pronuncia e, mediante un approccio di “law in context” a darne una interpretazione nell’ambito del più ampio sviluppo della giurisprudenza della Corte.

L’obiettivo è quello di realizzare un volume collettivo (in italiano) che possa offrire agli studiosi nuovo materiale di riflessione e studio su un argomento che tocca gli interessi scientifici sia dei costituzionalisti che dei cultori delle materie ecclesiasticistiche.

Funded by European Research Council 7th Framework Programme

Programma 

12.00-12.05 Introduzione

12.05-13.00 La Corte Roberts e la tutela della libertà religiosa 

Fred Gedicks | BYU, USA

Marc De Girolami | St John’s University, USA (intervento via Skype)

13.00-14.00 Pranzo di lavoro 

14.00-15.30 Discussione casi – I sessione 

Valentina Fiorillo | Università di Roma “La Sapienza”, Italia

Adelaide Madera | Università di Messina, Italia

Pasquale Annicchino | EUI, Italia

Discussione generale

15.30-15.45 Pausa caffé 

15.45-17.00 Discussione casi –II sessione 

Marco Ventura | KU Leuven, Belgio

Susanna Mancini | Università di Bologna, Italia

Diletta Tega | Università di Bologna e Corte costituzionale italiana, Italia

Discussione generale

17.00-18.15 Discussione finale

“The Oxford Handbook of American Islam” (Haddad & Smith, eds.)

Next month, Oxford University Press releases “The Oxford Handbook of American Islam”  edited by Yvonne Y. Haddad (Georgetown University) and Jane I. Smith (Harvard Divinity School, retired). The publisher’s description follows:

Islam has been part of the increasingly complex American religious scene for  well over a century, and was brought into more dramatic focus by the attacks of September 11, 2001. American Islam is practiced by a unique blend of immigrants and American-born Muslims. The immigrants have come from all corners of the world; they include rich and poor, well-educated and illiterate, those from upper and lower classes as well as economic and political refugees. The community’s diversity has been enhanced by the conversion of African Americans, Latina/os, and others, making it the most heterogeneous Muslim community in the world.

With an up-to-the-minute analysis by thirty of the top scholars in the field, this handbook covers the growth of Islam in America from the earliest Muslims to set foot on American soil to the current wave of Islamophobia. Topics covered include the development of African American Islam; pre- and post-WWII immigrants; Sunni, Shi`ite, sectarian and Sufi movements in America; the role and status of women, marriage, and family; and the Americanization of Islamic culture.

Throughout these chapters the contributors explore the meaning of religious identity in the context of race, ethnicity, gender, and politics, both within the American Islamic community and in relation to international Islam.

 

“Choreographies of Shared Sacred Sites: Religion, Politics, and Conflict Resolution” (Barkan & Barkey, eds.)

Next month, Columbia University Press will release “Choreographies of Shared Sacred Sites: Religion, Politics, and Conflict Resolution” edited by Elazar Barkan (Columbia University) and Karen Barkey (Columbia University). The publisher’s description follows:

This anthology explores the dynamics of shared religious sites in Turkey, the Balkans, Palestine/Israel, Cyprus, and Algeria, indicating where local and national stakeholders maneuver between competition and cooperation, coexistence and conflict. Contributors probe the notion of coexistence and the logic that underlies centuries of “sharing,” exploring when and why sharing gets interrupted—or not—by conflict, and the policy consequences.

These essays map the choreographies of shared sacred spaces within the framework of state-society relations, juxtaposing a site’s political and religious features and exploring whether sharing or contestation is primarily religious or politically motivated. While religion and politics are intertwined phenomena, the contributors to this volume understand the category of “religion” and the “political” as devices meant to distinguish between the theological and confessional aspects of religion and the political goals of groups. Their comparative approach better represents the transition in some cases of sites into places of hatred and violence while in other instances they remain noncontroversial. The essays clearly delineate the religious and political factors that contribute to the context and causality of conflict at these sites and draw on history and anthropology to shed light on the often rapid switch from relative tolerance to distress to peace and calm.

Around the Web this Week

Some interesting law and religion news stories from around the web this week:

Hertel, “The Crescent Remembered”

This December, Sussex Academic Press will release “The Crescent Remembered: Islam and Nationalism on the Iberian Peninsula” by Patricia Hertel (University of Basel).  The publisher’s description follows:

The Crescent RememberedContemporary Spain and Portugal share a historical experience as Iberian states which emerged within the context of al-Andalus. These centuries of Muslim presence in the Middle Ages became a contested heritage during the process of modern nation-building with its varied concepts and constructs of national identities. Politicians, historians and intellectuals debated vigorously the question how the Muslim past could be reconciled with the idea of the Catholic nation.

The Crescent Remembered investigates the processes of exclusion and integration of the Islamic past within the national narratives. It analyzes discourses of historiography, Arabic studies, mythology, popular culture and colonial policies towards Muslim populations from the 19th century to the dictatorships of Franco and Salazar in the 20th century. In particular, it explores why, despite apparent historical similarities, in Spain and Portugal entirely different strategies and discourses concerning the Islamic past emerged. In the process, it seeks to shed light on the role of the Iberian Peninsula as a crucial European historical “contact zone” with Islam.

“Politics of Religion and Nationalism” (Requejo & Nagel, eds.)

This December, Routledge Press will release “Politics of Religion and Nationalism: Federalism, Consociationalism and Secession” edited by Ferran Requejo and Klaus-Jürgen Nagel (Universitat Pompeu Fabra, Barcelona).  The publisher’s description follows:

There are numerous examples of how religion and nationalism intertwine. In some cases, a common religion is the fundamental marker of a nation’s identity, whereas in others secular nationalism tries to hold together people of different religious beliefs.

This book examines the link between religion and nationalism in contemporary polities. By exploring case studies on India, Russia, Israel, Canada, Chechnya, Bosnia-Herzegovina, Belgium, Northern Ireland, Scotland, Sri Lanka, Catalonia and the Basque Country, it seeks to understand the relationship between these two key societal forms of diversity and assess the interaction between religious and nationalist perspectives. Expert contributors examine a variety of phenomena, including secular nationalism, secessionism, and polities in which religious pluralism is evolving.

This book will be of interest to students and scholars of political science, religion and politics, nationalism, federalism, secession, political philosophy, racial and ethnic politics and comparative politics.

More Questions on the Significant Harm to Third-Parties Establishment Clause Theory

In my last post on the subject, I wondered why there had not been more discussion on the part of advocates of the Significant Harm to Third-Parties Establishment Clause theory (abbreviated for convenience hereafter as SHTEC) regarding the application of that theory to the prison-beard case, Holt v. Hobbs. As Rick Garnett notes, the application of SHTEC theory to both Hobby Lobby and Holt v. Hobbs was recently addressed by Nelson Tebbe, Micah Schwartzman, and Richard Schragger. I will rapidly pass over the characterizations of the existing doctrine, as Rick discusses some of this and I’ve talked about it before, except to observe that whatever virtues SHTEC theory may have, its status as an “established principle of constitutional law” seems an improbable one. As I have explained before, SHTEC theory represents a major extension of current law. I also read the Hobby Lobby vote breakdown differently. If Justice Kennedy really accepted SHTEC theory, and believed that third-party rights in Hobby Lobby would have been violated by an accommodation for Hobby Lobby, then it is confusing to me that he would have joined the Court’s footnote 37. But he did join it (and of course he also said some very nice things about Justice Ginsburg).

On the application of SHTEC theory to Holt v. Hobbs, and to RLUIPA prison cases generally, I have some additional questions. My principal difficulties are terminological. I am having a hard time understanding what constitutes “significant” or “substantial” harm to “third party interests” and how that standard works in tandem with the RLUIPA standard.

First, the standard of significance seems elusive to me. With a slight tweak of the facts, maybe this becomes clearer. Suppose that the prison had a “No hair on the face or head longer than 1/4 inch” policy. And suppose it had evidence that exactly one person (or two, or five) had hidden a shank or a SIM card in their hair. What is the relationship for SHTEC purposes between frequency of harm and gravity of harm? Are one or two such instances enough to be “significant” because the gravity of the threatened harm is so great? Whatever one may think of the harm to third parties in Hobby Lobby, that harm is less grave than the third party harm I am positing (assuming one can agree that harm to life is graver than harm to access to employer-paid contraception), but of course the number of incidents of harm is greater in Hobby Lobby than in my modified Holt v. Hobbs hypo. SHTEC theory advocates can respond that Holt v. Hobbs didn’t deal with any of that. And so what is really going on is a failure of evidence. That’s fine, but that side-steps the issue. I’m less interested in the particular state of the evidence here than in understanding how SHTEC theory would apply in even a slightly more difficult prison case (surely these would fruitfully multiply after a favorable ruling for the prisoner in Holt v. Hobbs).

Second, I have difficulty with the distinction between third-party harms and government/state harms. Is there such a sharp difference? Or is it in the end all harm of various kinds to the state (that is to say, harms of multiple and varying kinds to the rest of us who are not being accommodated)? It may be some evidence in favor of the latter that there have been no separate SHTEC claims brought in the context of RFRA or RLUIPA actions. Everything has been analyzed pursuant to the statutory standard. Again, that’s because third party harm might be a kind of compelling interest that ultimately constitutes a state interest under RFRA or RLUIPA. Whether it rises to that level will depend on just how severely it burdens third parties (as Caldor put it, those accommodations which “take no account” of third parties are going to be in hot water). But notice what happens if one layers a SHTEC claim on top of the RFRA/RLUIPA compelling interest standard. Now it seems that third party harm claimants are on an equal footing with religious claimants. Religious claimants must allege a substantial burden; third party claimants can then allege a contravening “significant” burden; with the result that the government need not accommodate the religious claimant, and can circumvent its obligations to come forward with a compelling interest, by pointing to the SHTEC theory violation that would result from religious accommodation.

Third, in addition to administrative harms (which were not argued by the state in Holt v. Hobbs), there may be, as I’ve said before, symbolic harms of various kinds at issue (the state didn’t argue these either…but the state did a fabulously poor job of defending this case). Symbolic harms might affect the prison, the inmates, and the rest of us who support, in various ways, the system of criminal justice. As I indicated in my previous post, these are just as much harms to identifiable interests as are financial harms. They might include harms with respect to the equal treatment of prisoners and harms to the state’s interest (that is to say, to our interests, as well as the prisoners’ interests) in imposing discipline and uniformity on prisoners who very much need it. These are true harms. They are part of the purposes and functions of prisons in general. They even implicate certain important functions of punishment, including retributivism and rehabilitation, functions of punishment that Congress itself has recognized as important in the Sentencing Reform Act, among other places. Surely many state legislatures have done something similar in their own penological systems. To my mind, they may indeed be very significant. The egalitarian harms could be resolved in part by leveling up for non-believers, but that leveling up is extremely likely to produce other harms (resentments among those who cannot come up with a reason of “conscience” as well as rising administrative costs as more and more prisoners seek exemptions of various kinds).

Fourth, a final point of puzzlement: why is there no discussion in SHTEC theory of different standards of deference in a case like Holt as opposed to a case like Hobby Lobby. Under existing law, there is no deference at all in the latter (the standard is one of strict scrutiny), while there is great deference to the state in the former. Indeed, one of the primary points of uncertainty in the oral argument in Holt was how to reconcile strict scrutiny with this substantial deference to prison administrators (cf. Grutter v. Bollinger). But I have not seen this difference in the amount of deference accorded to the state discussed by SHTEC theorists (I may well have missed it). Does SHTEC theory incorporate a deferential posture with respect to prisons (and the military, and perhaps certain other institutions)? It certainly could, and it seems to me that such deference would take the form of giving a great deal more latitude to the state (or to third parties) on the issue of what is “substantial” or “significant” harm. Perhaps Arkansas still loses in Holt v. Hobbs. But it shouldn’t take much more at all for it to win.

What’s Happening in Houston?

When I first saw the story, I dismissed it as a hoax. The City of Houston had served subpoenas on local pastors who had participated in a petition drive against a city ordinance, known as HERO, which prohibits discrimination against LGBT persons. The subpoenas demanded that the pastors turn over “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

What could justify such an intrusive request? Not only the pastors’ own statements – that would be troubling enough – but statements the pastors had revised, or approved, or just kept in their possession, about homosexuality and gender identity. And about the mayor herself. There must be more to the story, I thought.

It turns out there is a bit more to the story— but the episode is nonetheless very unsettling. When the city rejected the petition on the ground that the signatures were invalid, some opponents of HERO – not the pastors themselves – challenged the city’s decision in court. The city issued the subpoenas in connection with that litigation. The theory, as I understand it, is that because these pastors helped organize the petition drive and hosted meetings, the pastors’s statements about the petition are important. I guess the idea is that the pastors may have said something that induced phony signatures.

Now, given the rules of pretrial discovery, one must concede that there is some plausibility in the city’s argument – some. In an American lawsuit, attorneys can ask for all sorts of information before trial, even if that information is not strictly relevant to the litigation, as long as the information seems reasonably likely to lead to relevant and admissible evidence. This broad standard is meant to allow parties to uncover all the facts. So when the city says it would like to know what the pastors may have said about the petition drive itself, that’s not a completely untenable position, given the freewheeling rules of American pretrial litigation.

But there are other very important considerations. The broad standard for discovery can lead to so-called “fishing expeditions” that seek to harass and intimidate litigants and encourage them to back off. As a result, courts generally have wide discretion to reject requests for information that are overly broad and unduly burdensome to the opposing party. In a context like this one, which raises very sensitive First Amendment concerns, courts must be especially careful.

The pastors have moved to quash the subpoenas. They should and will likely succeed, largely if not completely. Indeed, in response to complaints, including from some defenders of LGBT rights, Mayor Parker and the Houston City Attorney have already indicated that they think the subpoenas are too broad and should be rewritten. (They blame the misunderstanding on pro-bono attorneys the city retained to handle the litigation.) Maybe the court will allow subpoenas with respect to statements directly related to the petition drive, but that’s as far as it’s likely to go. I wonder if the court will allow even that.

Still, even if these pastors succeed in resisting the subpoenas, significant damage has been done. It’s hard to see how this episode will not chill religious and political expression. Most people, quite rationally, want nothing to do with lawsuits and subpoenas. They don’t want to make legal history. The lesson they will draw from the episode is this: if you want to avoid trouble, don’t make politically-charged statements about religious convictions that the government doesn’t approve, even if you’re at a private meeting in your own church. In fact, don’t revise or retain such statements. Otherwise, who knows? You may one day have to lawyer up.

Haynes, “Faith-Based Organizations at the United Nations”

In December, Palgrave Macmillan will release “Faith-Based Organizations at the United Nations” by Jeffrey Haynes (London Metropolitan University). The publisher’s description follows:

The book examines selected faith-based organisations (FBOs) and their attempts to seek to influence debate and decision-making at the United Nations (UN). Increasing attention on FBOs in this context has followed what is widely understood as a widespread, post-Cold War ‘religious resurgence’, which characterises a novel ‘postsecular’ international environment. One aspect of the new postsecular environment is increasing focus on global public policy at the UN, from FBOs from various religious traditions, especially Christianity, Islam, and Judaism.

Klein, “Lives in Common: Arabs and Jews in Jerusalem, Jaffa and Hebron”

Next month, Hurst Publishers will release “Lives in Common:  Arabs and Jews in Jerusalem, Jaffa and Hebron” by  Menachem Klein (Bar-Ilan University, Israel). The publisher’s description follows:

Most books dealing with the Israeli–Palestinian conflict see events through the eyes of policy-makers, generals or diplomats. Menachem Klein offers an illuminating alternative by telling the intertwined histories, from street level upwards, of three cities — Jerusalem, Jaffa and Hebron — and their intermingled Jewish, Muslim and Christian inhabitants, from the nineteenth century to the present. Each of them was and still is a mixed city. Jerusalem and Hebron are holy places, while Jaffa till 1948 was Palestine’s principal city and main port of entry.

Klein portrays a society in the late Ottoman period in which Jewish-Arab interactions were intense, frequent, and meaningful, before the onset of segregation and separation gradually occurred in the Mandate era. The unequal power relations and increasing violence between Jews and Arabs from 1948 onwards are also scrutinised. Throughout, Klein bases his writing not on the official record but rather on a hitherto hidden private world of Jewish-Arab encounters, including marriages and squabbles, kindnesses and cruelties, as set out in dozens of memoirs, diaries, biographies and testimonies.