Why Protect Religion?

Tocqueville understood

A growing number of legal scholars question whether a justification exists for protecting religion as its own category. Yes, the text of the First Amendment refers specifically to religion, they concede, but that’s an anachronism. As a matter of principle, religion as such doesn’t merit legal protection. Instead, the law should protect individual conscience, or private associations generally. In fact, it’s not just scholars. In the ministerial exception case a couple of years ago, the Obama Administration argued that the Religion Clauses did not even apply and that the Court should decide the case under more general associational freedom principles.

The Justices unanimously dismissed the Obama Administration’s argument in Hosanna-Tabor, and there seems little chance the Roberts Court will read the Religion Clauses out of the Constitution. But history shows that constitutional text is not an insurmountable barrier, and those of us who think religion as such does merit special protection will need to find arguments beyond the bare language of the First Amendment. In fact, in an increasingly non-religious society, we’ll have to find arguments that appeal to people without traditional religious commitments.

Here’s one such argument. Religion, especially communal religion, provides important benefits for everyone in the liberal state–even the non-religious. Religion encourages people to associate with and feel responsible for others, to engage with them in common endeavors. Religion promotes altruism and neighborliness and mitigates social isolation. Religion counteracts the tendencies to apathy and self-centeredness that liberalism seems inevitably to create.

Tocqueville saw this in the 19th century. Egalitarian democracy, he wrote, encourages a kind of “individualism.” It trains each citizen to look out for himself according to his own best judgment and discount the needs of the wider society. Self-reliance is a good thing; at least Americans have long though so. But the attitude poses two great dangers for liberal society. First, it makes it difficult to motivate people to contribute to the common projects on which society depends: public safety, schools, hospitals, and the like. Second, it makes it easier for despotism to arise. The despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to the concerns of others, so that the state can easily divide and dominate them all.

Tocqueville saw that voluntary associations could lessen these dangers. Religious associations are particularly useful in this regard. They are uniquely good at promoting social engagement–secular as well as religious. According to sociologist Robert Putnam, for example, regular churchgoers are more likely to vote, serve on juries, participate in community activities, talk to neighbors, and give to charities, including non-religious charities. And when it comes to defying state oppression, no groups are more effective than religious associations, which can inspire members to truly heroic acts of resistance, as dictators down the centuries have learned.

To be sure, religions don’t always encourage civic fellowship; to the extent a religion promotes sedition or violence against other citizens, society does not benefit. And perhaps, as Gerald Russello suggests, the non-religious have come so to distrust religion that they will view its contributions as tainted and objectionable from the start. But in encouraging greater social involvement, religion offers benefits to everyone, believers and non-believers, too. It’s worth reminding skeptics of this when they argue that religion, as such, doesn’t merit legal protection.

Sandberg, “Religion, Law and Society”

9781107027435This June, Cambridge University Press will publish Religion, Law and Society by Russell Sandberg (Cardiff University). The publisher’s description follows.

Issues concerning religion in the public sphere are rarely far from the headlines. As a result, scholars have paid increasing attention to religion. These scholars, however, have generally stayed within the confines of their own respective disciplines. To date there has been little contact between lawyers and sociologists. Religion, Law and Society explores whether, how and why law and religion should interact with the sociology of religion. It examines sociological and legal materials concerning religion in order to find out what lawyers and sociologists can learn from each other. A groundbreaking, provocative and thought-provoking book, it is essential reading for lawyers, sociologists and all who are interested in the relationship between religion, law and society in the twenty-first century.

Janes & Houen (eds.), “Martyrdom and Terrorism: Pre-Modern to Contemporary Perspectives”

9780199959853This June, Oxford University Press will publish Martyrdom and Terrorism: Pre-Modern to Contemporary Perspectives edited by Dominic Janes (University of London) and Alex Houen (University of Cambridge). The publisher’s description follows.

In recent years, terrorism has become closely associated with martyrdom in the minds of many terrorists and in the view of nations around the world. In Islam, martyrdom is mostly conceived as “bearing witness” to faith and God. Martyrdom is also central to the Christian tradition, not only in the form of Christ’s Passion or saints faced with persecution and death, but in the duty to lead a good and charitable life. In both religions, the association of religious martyrdom with political terror has a long and difficult history. The essays of this volume illuminate this history-following, for example, Christian martyrdom from its origins in the Roman world, to the experience of the deaths of “terrorist” leaders of the French Revolution, to parallels in the contemporary world-and explore historical parallels among Islamic, Christian, and secular traditions. Featuring essays from eminent scholars in a wide range of disciplines, Martyrdom and Terrorism provides a timely comparative history of the practices and discourses of terrorism and martyrdom from antiquity to the twenty-first century.

The Weekly Five

This week we feature new work on the rhetoric of US Supreme Court opinions; a comparative study of same-sex unions; more specific studies of polygamy and gay marriage; the legal status of women in Pakistan; and claims of religious accommodation in the workplace.

1. Steven Douglas Smith (University of San Diego), The Jurisprudence of Denigration: Smith reflects on Justice Kennedy’s majority opinion in United States v. Windsor (2013). Specifically, he criticizes Kennedy’s claim in the opinion that supporters of Section 3 of DOMA acted from a  a “purpose…to demean,” “to injure,” and “to disparage.” He concludes that this type of denigrating jurisprudence reflects more general patterns in constitutional and moral discourse, in which “the only kind of admissible and potentially persuasive argument is one that attacks the character or motives of one’s opponent.”

2. W. Cole Durham (BYU), Robert Theron Smith (BYU), William C. Duncan (Marriage Law Foundation), A Comparative Analysis of Laws Pertaining to Same-Sex Unions: The authors survey various countries’ approach to the regulation of same-sex unions, and they argue that, as to those countries that recognize same-sex unions, legal change through legislative processes has certain advantages over legal change through the courts.

3. Danièle Hervieu-Léger (French National Center for Scientific Research & Ecole des Hautes Etudes en Sciences Sociales) and Janet Bennion (Lyndon State College), The Meanings of Marriage in the West: Law, Religion and ‘Nature’: Both authors discuss the sense in which law rejects “natural” conceptions of marriage. Bennion focuses on polygamous communities in Montana, Utah, and Mexico. She “reject[s] the notion that polygamy is uniformly abusive, anti-feminist, and dysfunctional.” Hervieu-Léger instead focuses on gay marriage. She is puzzled by, and criticizes, “the way in which the Catholic Church (by which I refer to its institutional representatives) has tried to use this debate to reassert its normative capacity within the public sphere.”

4. Zia Ullah Ranjah (International Islamic University–Islamabad) & Shahbaz Ahmad Cheema (University of the Punjab), Protection of Legal Status of Women in Pakistan: An Analysis of the Role of the Supreme Court: The authors discuss the function of the Supreme Court of Pakistan within Pakistan’s constitutional structure and the court’s role in protecting the rights of women, offering various recommendations.

5. Dallan Flake (BYU), Image is Everything: Corporate Branding and Religious Accommodation in the Workplace: Flake claims that courts should more closely scrutinize claims of religious accommodation within the workplace “because a company’s image is one of its most valuable assets.” Among his recommendations are that courts reject claims of accommodation if they impose anything more than de minimis burdens on employers and that they defer more broadly to the employers’ interest.

Aronoff, “The Political Psychology of Israeli Prime Ministers”

Next month, Cambridge University Press will publish The Political Psychology of Israeli Prime Ministers: When Hard-Liners Opt for Peace by Yael S. Aronoff (James Madison College).  PO Psychology The publisher’s description follows.

This book examines leaders of the seemingly intractable conflict between Israel and its Palestinian neighbors. It takes as an intellectual target of opportunity six Israeli prime ministers, asking why some of them have persisted in some hard-line positions but others have opted to become peacemakers. This book argues that some leaders do change, and above all it explains why and how such changes come about. This book goes beyond arguing simply that “leaders matter” by analyzing how their particular belief systems and personalities can ultimately make a difference to their country’s foreign policy, especially toward a long-standing enemy. Although no hard-liner can stand completely still in the face of important changes, only those with ideologies that have specific components that act as obstacles to change and who have an orientation toward the past may need to be replaced for dramatic policy changes to take place.

Quero & Shoji, “Transnational Faiths”

Next month, Ashgate will publish Transnational Faiths: Latin-American Immigrants and Their Religions in Japan by Hugo Córdova Quero (Graduate Transnational FaithsTheological Union) and Rafael Shoji (Pontifical Catholic University).  The publisher’s description follows.

Japan has witnessed the arrival of thousands of immigrants, since the 1990s, from Latin America, especially from Brazil and Peru. Along with immigrants from other parts of the world, they all express the new face of Japan – one of multiculturality and multi-ethnicity. Newcomers are having a strong impact in local faith communities and playing an unexpected role in the development of communities.

This book focuses on the role that faith and religious institutions play in the migrants’ process of settlement and integration. The authors also focus on the impact of immigrants’ religiosity amidst religious groups formerly established in Japan. Religion is an integral aspect of the displacement and settlement process of immigrants in an increasing multi-ethnic, multicultural and pluri-religious contemporary Japan. Religious institutions and their social networks in Japan are becoming the first point of contact among immigrants. This book exposes and explores the often missed connection of the positive role of religion and faith-based communities in facilitating varied integrative ways of belonging for immigrants. The authors highlight the faith experiences of immigrants themselves by bringing their voices through case studies, interviews, and ethnographic research throughout the book to offer an important contribution to the exploration of multiculturalism in Japan.

Happy Easter

To all who celebrate, a very Happy Easter. Christ is Risen.

 

Around the Web This Week

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

Barras, “Refashioning Secularisms in France and Turkey”

9780415821780This month, Routledge publishes Refashioning Secularisms in France and Turkey: The Case of the Headscarf Ban by Amelie Barras (University of Montreal). The publisher’s description follows.

Over the past few years, secularism has become an intrinsic component of discussions on religious freedom and religious governance. The question of whether states should restrict the wearing of headscarves and other religious symbols has been particularly critical in guiding this thought process.

Refashioning Secularisms in France and Turkey documents how, in both countries, devout women have contested bans on headscarves, pointing to how these are inconsistent with the ‘real’ spirit of secularism. These activists argue that it is possible to be simultaneously secular and religious; to believe in the values conveyed by secularism, while still remaining devoted to their faith. Through this examination, the book highlights how activists locate their claims within the frame of secularism, while at the same time revisiting it to craft a space for their religiosity.

Addressing the lacuna in literature on the discourse of devout Muslims affected by these restrictions, this book offers a topical analysis on an understudied dimension of secularism and is a valuable resource for students and researchers with an interest in Religion, Gender Studies, Human Rights and Political Science.

Hamid, “Temptations of Power”

9780199314058_450Next month, Oxford University Press will publish Temptations of Power: Islamists and Illiberal Democracy in a New Middle East by Shadi Hamid (Brookings Doha Center). The publisher’s description follows.

In 1989, Francis Fukuyama famously declared that we had reached “the end of history,” and that liberal democracy would be the reigning ideology from now on. But Fukuyama failed to reckon with the idea of illiberal democracy. What if majorities, working through the democratic process, decide they would rather not accept gender equality and other human rights norms that Western democracies take for granted? Nowhere have such considerations become more relevant than in the Middle East, where the Arab uprisings of 2011 swept the Muslim Brotherhood and other Islamist parties into power. Since then, one question has been on everyone’s mind: what do Islamists really want?

In Temptations of Power, noted Brookings scholar Shadi Hamid draws on hundreds of interviews with Islamist leaders and rank-and-file activists to offer an in-depth look at the past, present, and future of Islamist parties across the Arab world. The oldest and most influential of these groups, the Muslim Brotherhood, initially dismissed democracy as a foreign import, but eventually chose to participate in Egyptian and Jordanian party politics in the 1980s. These political openings proved short-lived. As repression intensified, though, Islamist parties did not — as one may have expected — turn to radicalism. Rather, they embraced the tenets of democratic life, putting aside their dreams of an Islamic state, striking alliances with secular parties, and reaching out to Western audiences for the first time.

When the 2011 revolutions took place, Islamists found themselves in an enviable position, but one they were unprepared for. Up until then, the prospect of power had seemed too remote. But, now, freed from repression and with the political arena wide open, they found themselves with an unprecedented opportunity to put their ideas into practice across the region. Groups like the Brotherhood combine the features of political parties and religious movements. However pragmatic they may be, their ultimate goal remains the Islamization of society and the state. When the electorate they represent is conservative as well, they can push their own form of illiberal democracy while insisting they are carrying out the popular will. This can lead to overreach and, at times, significant backlash, as the tragic events in Egypt following the military takeover demonstrated.

While the coup and the subsequent crackdown were a devastating blow for the Islamist “project,” premature obituaries of political Islam, a running feature of commentary since the 1950s, usually turn out to be just that – premature. In countries as diverse as Tunisia, Libya, Syria, Egypt, and Yemen, Islamist groups will remain an important force whether in the ranks of opposition or the halls of power.

Drawing from interviews with figures like ousted Egyptian president Mohammed Morsi, Hamid’s account will serve as an essential compass for those trying to understand where the region’s varied Islamist groups have come from, and where they might be headed.