Author Archives: Marc O. DeGirolami

A Little Political Theology Courtesy of Benjamin Franklin

From his “Petition of the Pennsylvania Society for Promoting the Abolition of Slavery,” presented in the House of Representatives on February 12, 1790:

The memorial respectfully showeth,

That from a regard for the happiness of mankind, as association was formed several years since in this State, by a number of her citizens, of various religious denominations, for promoting the abolition of slavery, and for the relief of those unlawfully held in bondage. A just and acute conception of the true principles of liberty, as it spread through the land, produced accessions to their numbers, many friends to their cause, and a Legislative cooperation with their views, which, by the blessing of Divine Providence, have been successfully directed to the relieving from bondage a large number of their fellow-creatures of the African race. They have also the satisfaction to observe, that in consequence of that spirit of philanthropy and genuine liberty which is generally diffusing its beneficial influence, similar institutions are forming at home and abroad.

That mankind are all formed by the same Almighty Being, alike objects of his care, and equally designed for the enjoyment of happiness, the Christian religion teaches us to believe, and the political creed of Americans fully coincides with the position.

“Foundational Texts in Modern Criminal Law” (available for pre-order)

Foundational Texts in Modern Criminal LawI am pleased to announce that Foundational Texts in Modern Criminal Law, edited by Markus D. Dubber, is now available for pre-order. I’ve listed the description of the volume below. As Markus explains in his introduction, the aim of the volume is to provide a set of comments (and in some cases, an introduction) to criminal texts that are canonical for the modern liberal state, but also that grew out of the modern liberal state. The collection begins with Hobbes and ends with the contemporary German theorist, Günther Jakobs. I was delighted to contribute the chapter on J.F. Stephen. The primary texts themselves can be accessed here.

Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context.

Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems.

“Constitutional Contraction: Religion and the Roberts Court”

I’ve posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here’s the abstract:

This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. 

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly. 

Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.

Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.

Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

Comments are welcome!

White Reviews The Tragedy of Religious Freedom

very generous review of the book in Commentary Magazine by Adam White. With the exception of the kindly words about Justice Holmes, I don’t disagree with anything in it!

And for something rather different (and speaking of Holmes), here’s a column from Reason (whose tagline is “Free Minds and Free Markets”) about tradition whose conclusion is that “We treasure the customs and practices passed down from our ancestors. And we change them anytime we want.” Judge Posner is quoted as saying, “How can tradition be a reason for anything?”

“Creedal Discrimination is Still Discrimination”

A very interesting essay in Christianity Today on the author’s experience at Vanderbilt with its “all comers” policy. One feature of the piece that struck me was how such policies end up flattening out beliefs or creeds as such. Readers may remember that another policy like this was the subject of the complaint in CLS v. Martinez some years ago. The terrible problem that these policies seek to remedy seems to be that people have distinctive beliefs. The policy’s aim seems to be to compel all associations to reflect certain core commitments, which in turn destroys their own distinctive creeds, thereby demolishing what is special about them in the first place:

In writing, the new policy refers only to constitutionally protected classes (race, religion, sexual identity, and so on), but Vanderbilt publicly adopted an “all comers policy,” which meant that no student could be excluded from a leadership post on ideological grounds. College Republicans must allow Democrats to seek office; the environmental group had to welcome climate-change skeptics; and a leader of a religious group could not be dismissed if she renounced faith midyear. (The administration granted an exception to sororities and fraternities.)

Like most campus groups, InterVarsity welcomes anyone as a member. But it asks key student leaders—the executive council and small group leaders—to affirm its doctrinal statement, which outlines broad Christian orthodoxy and does not mention sexual conduct specifically. But the university saw belief statements themselves as suspect. Any belief—particularly those about the authority of Scripture or the church—could potentially constrain sexual activity or identity. So what began as a concern about sexuality and pluralism quickly became a conversation about whether robustly religious communities would be allowed on campus.

In effect, the new policy privileged certain belief groups and forbade all others. Religious organizations were welcome as long as they were malleable: as long as their leaders didn’t need to profess anything in particular; as long as they could be governed by sheer democracy and adjust to popular mores or trends; as long as they didn’t prioritize theological stability. Creedal statements were allowed, but as an accessory, a historic document, or a suggested guideline. They could not have binding authority to shape or govern the teaching and practices of a campus religious community.

Law and Religion Moot Court Competition at Touro

From Professor Samuel Levine of Touro Law School comes some information about the impressive looking 2nd Annual Moot Court Competition in Law and Religion at Touro Law School. Details follow.

Touro Law Center is pleased to announce our 2nd Annual National Moot Court Competition in Law and Religion. The semi-final and final rounds of the competition will take place at the Alfonse D’Amato Federal Courthouse, located directly across the street from Touro Law Center in Central Islip, NY. Awards will be presented to individuals and teams for first and second place, for top three best briefs, and top six best oralists. Accommodations will be available within walking distance of the law school and the courthouse. Touro Law is located within an hour of New York City and the metropolitan airports. 
 
United States District Court Judges and Magistrate Judges of the Eastern District of New York in Central Islip will be judging the semi-final rounds. The finals bench will include:
 
Hon. Harris L Hartz, United States Court of Appeals for the Tenth Circuit
Hon. Loretta A. Preska, Chief Judge, U.S. District Court, Southern District of NY
Hon. Kenneth Starr, President and Chancellor of Baylor University, U.S. Circuit Judge for the D.C. Circuit (1983-1989), Solicitor General of the United States (1989-1993)
 
Law Schools interested in participating should contact Jason Prince, Editor-in-Chief at mootcourt@tourolaw.edu<mailto:mootcourt@tourolaw.edu> or by phone at (631) 761-7173 or Associate Dean Myra Berman at mberman@tourolaw.edu<mailto:mberman@tourolaw.edu>.

Annicchino on Religious Freedom as a (Non-)Priority in Italy and the EU

Our friend and former guest blogger Pasquale Annicchino (European University Institute) has a strong column on the extent to which religious freedom has, and has not, been a priority for the Italian government and the European Union in general over the last decade or so. He criticizes what he describes as vague sloganeering and lack of action, particularly in the context of the many grave threats posed by ISIS. The column is in Italian, but here is a bit of the original with a quick and dirty translation:

Quello che avviene in queste ore era largamente prevedibile, non era forse evitabile. Sono anni che i principali centri di ricerca, tra tutti il Pew Forum, segnalano la crescita di discriminazioni e persecuzioni ai danni di diverse minoranze religiose in varie zone del mondo. La reazione rispetto a questi dati è stata spesso quella di fare spallucce, di dire che poi, effettivamente, niente di così grave stava succedendo. Il governo italiano, tramite l’azione del Ministero degli Esteri, ha provato negli ultimi anni ad interessarsi al tema della libertà religiosa nel contesto della sua politica estera ma i risultati sono stati praticamente nulli.

[What is happening in these moments was largely foreseeable, though perhaps not avoidable. For years, the principal research centers, foremost among them the Pew Forum, signaled the growth of discrimination and persecution of diverse religious minorities in various regions of the world. The reaction to this data was frequently that of shrugging, or of then saying that, effectively, nothing very serious was happening. The Italian government, through the actions of the Minister of Foreign Affairs, has tried in the last years to become interested in the subject of religious freedom in the context of its foreign policy but the results have been almost nothing.]

Drakeman on Garnett on the Freedom of the Church

Our friend and board member Don Drakeman has a typically smart and interesting response to Prof. Rick Garnett’s excellent piece on the freedom of the church. Over the last few years, Rick has been developing an account of the freedom of the church that depends on the idea of institutional rights (see also Paul Horwitz’s work). 

Don applies the same sorts of methodological insights that he uses in this very good piece about originalism to the idea of the freedom of the church. That is, he considers the sense in which the freedom of the church is, in fact, deemed by the public to be a fundamental right, but also how, as one moves out of the church “sanctuary” and into the world, the world begins to resist. A bit from Don’s piece:

If we were to commission a survey asking, “Should churches have the right of religious freedom?,” I suspect that, except for some parts of académe, the most common response would be: “What is this, some sort of trick question?” After all, two-thirds of the public have recently said that corporations should have “certain religious freedoms.” (From a 2014 “State of the First Amendment” poll that can be found here.) If that many people would, at least in the abstract, give businesses the freedom of religion, it seems likely that nearly all would give that right to churches as well.

It is also likely that the public doesn’t really know what it means for companies, or even churches, to have religious freedom—just that it makes sense. Could we gain more insight on this by considering a contemporary controversy? A “hot button” issue at the moment is what many have called the “contraception mandate.” Here, the pollsters have some interesting data, but first a methodological question: If people are asked about exemptions from the mandate, won’t they just use the question as a proxy for their views on either contraception or healthcare reform, or both? Separating those issues is admittedly hard, but the data may nevertheless tell us something about the public’s sense of the freedom of the church—in particular, what counts as “the church.”

In a March 2012 Public Religion Research Institute poll, Americans were asked if publicly held corporations should be required to provide health plans including contraception at no cost. A total of 62 percent said yes. For “churches, and other places of worship,” only 42 percent said yes. In between were religiously affiliated colleges (54 percent) and hospitals (57 percent). Since the underlying issues of contraception and the Affordable Care Act were the same in each case, the percentages for these three types of institutions should provide us with at least a rough reflection of the public’s sense of the relative strength of each one’s claim for a religiously based exemption.

The take-home here, I think, is twofold. First, the public does seem to believe that there is something to the concept of the freedom of the church; and second, there is a stronger claim for the exercise of that freedom for churches as places of worship than for, say, Notre Dame, Baylor or the country’s large network of religiously-affiliated hospitals.

Satanists Claim Hobby Lobby Exemption from Abortion Informed-Consent Laws (via Huffington Post)

The Huffington Post reports that The Satanic Temple believes that its religious rights are infringed when its members receive anti-abortion pamphlets and information in those states that require informed consent before proceeding with an abortion. The Satanists seem to believe that they can use the Hobby Lobby decision to press their claim. You can see some of the other beliefs of the Satanists at the link.

But the informed-consent laws that the Satanists object to are state laws. This is the document that the Huffington Post pastes onto its story purporting to evidence the claim. Although it does tend to be forgotten and get lost in the nonsense (even by some Supreme Court Justices who took part in the decision), it’s important to remember that Hobby Lobby was a decision under the Religious Freedom Restoration Act. RFRA applies only against the federal government. Perhaps there are some federal abortion informed-consent laws that the Satanists object to as well (though the Huffington Post did not list any of those). At any rate, RFRA won’t be of much help to the Satanists if they are objecting to state informed-consent laws.

That’s of course all before getting to the test that RFRA actually sets out, even if RFRA applied (which it doesn’t). The Satanists would need to show that the mere reception of information about abortion intended to render their consent to an abortion informed imposed a substantial burden on their religious exercise. That seems rather different to me than the threats of financial penalty imposed by the contraceptives mandate on Hobby Lobby. The Satanists would also need to counter the government’s compelling interest in ensuring that a person’s consent was indeed informed before proceeding with an abortion, as well as satisfy the least restrictive means analysis. That would be a challenging standard to meet as well.

The Civil Religion of the First World War

Yesterday was the centenary anniversary of the beginning of World War I. On July 28, 1914,  one month after Archduke Franz Ferdinand of Austria was assassinated, the Austro-Hungarian empire made its first moves against Serbia. The Great War would end more than four years later.

This weekend, I visited the Museum of Fine Arts in Boston, which was hosting a very fine exhibit of American World War I posters. I was struck by the powerful imagery of civil religion in many of them. Here are two exhorting the purchase of war bonds that stood out to me as particularly representative of the genre:

World War I #2

World War I #1

And this afternoon, to remember the War, Mark and I visited the Flag Pole Green in Queens, New York, which has this lovely memorial to the men of Queens who died in the War:

World War I #3Just a few fragments of civil religion–that perennial social coagulant–in memory of the war to end war.