Author Archives: Mark L. Movsesian

Panel at AAR Meeting Next Month

The Religion and American Law Discussion Group will host a panel at the upcoming meeting of the American Academy of Religion in San Diego (November 22-25). Topics will include “Religion and American Law, Applied” and “The Meaning and Ramifications of Greece v. Galloway.” Speakers include Dusty Hoesly (UC-Santa Barbara), Michael Barber (UC-Santa Barbara), Michael Graziano (Florida State), Charles McCrary (Florida State), Alan Brownstein (UC-Davis), Steve Smith (San Diego), and Steven Green (Willamette). Details about the conference are here.

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.

The Armenian Church in Myanmar: A Follow-Up

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Photo from the BBC

A follow-up to last month’s post on the Armenian Orthodox church in Myanmar: This summer, the BBC did a lovely story about a 150-year old Armenian parish church in the city of Yangon, St. John the Baptist (above). Hardly any parishioners remained, the BBC said, maybe 10 people on a good Sunday. Most of the congregation were not Armenians, either, the Armenians having left Myanmar, with the British, decades before.

A small group of holdouts had continued to maintain the church, however, led by a priest, Father John Felix. Father John was not Armenian Orthodox, the story indicated, but Anglican. Nonetheless, the Armenian Church had, in an ecumenical gesture, invited him to use St. John the Baptist for the small number of faithful who remained, even though he had a very limited knowledge of the Orthodox liturgy. (Most of the parishioners had a very limited knowledge, too). Apparently he was starting to attract a following from among Christian believers of many communions.

The BBC got its information straight from Father John. It turns out, however, that he’s not really “Father” John at all. The Anglican archbishop says that John Felix was never ordained a priest, only a deacon, and that, for unspecified reasons, the Anglican Church no longer allows him to conduct religious services. How he ensconced himself at St. John the Baptist is a mystery. He apparently inserted himself a few years ago, after the last “full” member of the congregation passed away. The Armenian Church hierarchy seems not to have known about it. To be fair, they have many more pressing issues with which to contend.

This summer’s story drew a lot of attention. As I say, once the Anglicans found out about John Felix, they spread the word he wasn’t one of theirs. The story got noticed in Armenia as well. Last week, the Catholicos, or Patriarch, of the Armenian Church, Karekin II, visited Yangon to reconsecrate the altar and conduct a proper liturgy; a large crowd attended. The Catholicos also announced that henceforth an Orthodox priest from Calcutta would fly in on weekends to conduct liturgies at the church. As for John Felix, he’s indicated he intends to remain at the church and has refused to turn over the keys. The BBC says legal action seems likely.

The BBC has posted a video interview with John Felix. He seems like a nice enough man, and gamely tries to chant the Kyrie Eleison (in Armenian, Der Voghormia) to show his bona fides. But, if the BBC is to be believed, he’s been deceiving everyone for years. He has actually purported to conduct weddings and baptisms for unsuspecting parishioners. Is he well-meaning but misguided, or an out-and-out scoundrel? It’s impossible to tell. What a very strange story.

Dim Drums Throbbing, In the Hills Half Heard

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Today is the 443rd anniversary of the Battle of Lepanto

On Christians and the Open Letter to the Islamic State

Recently, a group of more than 120 Islamic law scholars, many of them from very prominent institutions in the Sunni world like Cairo’s Al Azhar University, signed an Open Letter to the leader of the Islamic State (aka IS, or ISIL, or ISIS), Dr. Ibrahim Awwad Al-Badri (aka Abu Bakr Al-Baghdadi). The letter sharply criticizes IS, arguing that most of its actions violate Islamic law. Among other things, the letter rejects IS’s declaration of a caliphate; its conception of jihad; its persecution of non-Muslims, including Christians and Yazidis; its atrocities against women and children; its killing of journalists and aid workers; and its destruction of the shrines of the prophets.

The Open Letter is a welcome development and its authors and signatories deserve credit. Western observers often criticize Muslim leaders for their failure to speak out against Islamist groups like IS, since the silence of Muslim leaders can be taken as assent. The Open Letter makes clear that IS does not represent the totality of Islam and that its Salafist interpretations are not the last word in fiqh. It’s valuable to have a critique of IS from within the Islamic law tradition itself.

And yet, if one reads the Open Letter closely, one sees that its conclusions are not all that Western observers might hope. At the First Things site, Ayman Ibrahim explores some of the letter’s ambiguities. For example, the scholars criticize IS’s attempt to reestablish the caliphate, not because the idea itself is outmoded, but because IS is too small to assert worldwide Muslim rule. “There is agreement (ittifaq) among scholars that a caliphate is an obligation upon the Ummah,” the letter concedes. But a small group like IS cannot declare a caliphate all on its own. “In truth, the caliphate must emerge from a consensus of Muslim countries, organizations of Islamic scholars and Muslims across the globe.”

Well, what if IS ultimately does ultimately obtain support for its caliphate? Given the group’s meteoric success so far, perhaps IS feels optimistic and would like to give it a try. Would consensus make IS’s caliphate legitimate? And does the letter really mean to suggest that Muslims across the globe have a religious obligation to seek the restoration of some sort of caliphate? That’s certainly how it sounds. How about Muslims in the West?

Or take the treatment of Christians, a matter Ibrahim does not discuss. As most people know by now, IS has murdered or expelled Iraqi and Syrian Christians who refuse to agree to the terms of the dhimma, the classical Islamic law “agreement” in which Christians accept subordinate status and pay a poll tax called the jizya. The Open Letter sharply criticizes IS for these actions. “These Christians are not combatants against Islam or transgressors against it,” the letter protests, but “friends, neighbors and co-citizens. “

This defense of Christians from leading Muslim scholars is very helpful. But then the letter makes clear the Islamic law basis for the scholars’ critique: “From the legal perspective of Shari’ah,” it says, the Christians of Iraq and Syria “all fall under ancient agreements that are around 1400 years old, and the rulings of jihad do not apply to them.” As non-combatants, these Christians are subject to a smaller jizya than IS has assessed . This smaller jizya is a substitute for the zakat Muslims pay and is to be distributed among the whole population, including Christians on occasion, as a form of charity.

In other words, the scholars’ objection is not that IS has subjected Iraqi and Syrian Christians to the dhimma and imposed on them the jizya. Rather, the objection is that these Christians are already subject to the dhimma and that IS has no authority to impose new terms, and that IS is collecting the wrong form of jizya. To put it mildly, this reasoning is not likely to reassure Christians and encourage them to return to their homes — assuming those homes still exist.

Some readers will think I am caviling. But I really don’t think so. In law, reasons matter. As I say, the Open Letter is a welcome contribution to the debate over IS and the signers, some of whom have no doubt taken personal risk, deserve credit. But the reasoning of the letter — well, let’s just say it raises some serious questions.

Video of Panel Presentation on Religious Liberty

The Lanier Theological Library in Houston has posted a video of a panel on religious liberty that took place at the library earlier this month. Among other subjects, the panel addressed the rise of contemporary Islamism, the treatment of Christians in the Mideast, the prevalence of Islamic-law arbitration in Europe and the US, and the legality of American drone strikes on American citizens affiliated with Islamist groups. I participated in the panel, along with Mark Lanier (Founder, Lanier Theological Library), Dean Michael Simons (St. John’s), Professor James Hoffmeier (Trinity Evangelical Divinity School), and Fr. Mario Arroyo (Archdiocese of Galveston-Houston). Take a look.

On Old Age (and Ezekiel Emanuel)

In a much-discussed Atlantic essay, “Why I Hope to Die at 75,” Ezekiel Emanuel — physician, public commentator, and prominent supporter of the Affordable Care Act — argues that we’d all be better off if we died at 75. That way, we would escape the debility and indignity that accompany old age and avoid being burdens to our children and other loved ones. And we would have the solace of not outliving our productivity. After all, he writes, “by 75, creativity, originality, and productivity are pretty much gone for the vast, vast majority of us.” Emanuel has no plan to commit suicide if he reaches 75, he says. But he plans to reject all medical treatments, even routine ones, that go beyond the palliative.

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He Knew

Emanuel rightly mocks “American immortals” who seem to believe they should (and maybe will!) live forever. And, in a culture like ours, which values youth and professional achievement virtually above everything else, his argument has a kind of plausibility. I’ve had 25 year-old students tell me they already feel over the hill. Why linger on into your eighties or nineties, when your best days and accomplishments are far behind you? Plus, society would save lots of money if people stopped seeking medical care at 75.

Nonetheless, there’s a serious flaw in Emanuel’s thinking. Strength, health, creativity — these are good things, but they are not the only things that give life meaning. From a Christian perspective, for example, the point of life is to express gratitude to and love for the Lord, and this we can do at any age. In the fullness of time, God will call each of us; until then, we have to try our best. There’s no point rushing Him.

Not everyone believes this, of course. But one needn’t be a Christian, or a religious believer of any kind, to appreciate that old age has some things to offer. “For old men who are reasonable and neither cross-grained nor churlish find old age tolerable enough: whereas unreason and churlishness cause uneasiness at every time of life,” said the pagan Cicero (above). And one needn’t be a religious believer to see that the elderly may still have much to contribute to us, even if they are weak, sick, and no longer able to write symphonies.

In a lovely response to Emanuel, my friend, John McGinnis, explains this, offering his own parents as an example. John does a much better job than I could, so I’ll just quote him:

But youth and good health do not measure humanity. Millions in diminished health enjoy life, being with their relatives, laughing at old movies, even just sitting in the breeze and sunshine. And their relatives and friends enjoy being with them. Indeed, they may find in the elderly’s struggle with aging an inspiration and a reaffirmation of life. In caring for the frail, weak and sometimes woebegone, they may also expand their own sympathies and express some small measure of gratitude for the debt of a good upbringing that can never be fully repaid.

That is certainly my experience watching my parents age well past 75. I have never admired my father more than when at the cusp of ninety he faces down his own infirmities and cares for my mother who has Parkinson’s disease. And although much is taken from my mother, much abides—her concern for others, her delight in reading new novels and rereading old ones. Emanuel argues that in seeing the decline of those we love, we may forget our happy memories of them in their years of vigor and achievement. But those memories do not need to summoned at particular times, because they infuse my being. In any event, the most valuable memories of all are not defined by physical wellbeing but by spirit and character. For so many people beyond 75 the forging of character continues and the power of their spirit at their end will instruct us by example at our own.

For one important thing, though, Emanuel is to be commended. Most of us do our best to ignore our mortality and the questions it raises about how we’re living our lives. As Pascal observed long ago, people will do pretty much anything to distract themselves and avoid thinking about it. That’s not wise; even a long life goes by so very fast. Every writer knows the benefits of deadlines: they force you to concentrate and get serious. Well, Emanuel says, he’s given himself a deadline.

One More Word on Ted Cruz and Christians

Senator Ted Cruz responded yesterday to writers who criticized his needlessly provocative remarks at the recent In Defense of Christians Summit earlier this month. He suggested that his critics didn’t care about Christians — their real target was Israel. His evidence? None of his critics had ever expressed concern for Mideast Christians before:

Then, among one particular community, which is sort of the elite, intellectual Washington, D.C., crowd, there has been considerable criticism… A number of the critics, a number of the folks in the media have suggested, for example, that my saying what I did distracted from the plight of persecuted Christians.

What I find interesting is almost to a person, the people writing those columns have never or virtually never spoken of persecuted Christians in any other context. I have spoken literally hundreds of times all over the country. This is a passion. I’ve been on the Senate floor, and I intend to keep highlighting this persecution. I will say it does seem interesting that the only time at least some of these writers seem to care about persecuted Christians is when it furthers an anti-Israel narrative for them. That starts to suggest that maybe their motivation is not exactly what they’re saying.

For a man who claims a passion for the plight of Mideast Christians, he doesn’t seem to have followed public discussion of the subject. The writers to whom he alludes — Michael Dougherty, Ross Douthat, Rod Dreher, Mollie Hemingway, Matt Lewis, and, I guess, me (my criticism of him at the First Things site was the most widely-read and commented-upon post at the site last week) — have written plenty on the topic. First Things’s Matt Schmitz kindly posted a list of my own posts — 37 of them.

Within a few hours, Senator Cruz had apologized:

It was a mistake to suggest that critics of my remarks at IDC had not spoken out previously concerning the persecution of Christians; many of them have done so, often quite eloquently. It was not my intent to impugn anyone’s integrity, and I apologize to any columnists who took offense. The systematic murder of Christians in the Middle East is a horrible atrocity, and all of us should be united against it. Likewise we should speak with one voice against the persecution of Jews, usually being carried out by the very same jihadist radicals.

OK, I accept — although he still hasn’t apologized for lumping me in with the elite, intellectual, Beltway crowd. But it’s an ugly thing to insinuate bigotry in people who disagree with you, and, on this issue at least, Senator Cruz seems to make a habit of it. Nothing good can come from this, not for Mideast Christians, not for Israel, and not for Senator Cruz. I have an proposal. His critics will stop talking about Senator Cruz if he does. Is it a deal?

Center Announces New Student Fellows

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L-R: Prof. Marc DeGirolami, Stephanie Cipolla ’16, John Boersma ’15, Prof. Mark Movsesian

As the academic year begins, we’re delighted to announce the appointment of our student fellows for 2014-2015, John Boersma ’15 and Stephanie Cipolla ’16. John and Stephanie have already been helping with the daily Scholarship Roundup posts, but they’ll be taking on other responsibilities as well. We’re glad to have them with us and look forward to the year ahead.

For more information about the new fellows, please click here.

Int’l Moot Court Competition in Law & Religion (Venice, March 2015)

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Nice Place for a Moot Court Competition

Here’s a great opportunity for law students. The Fondazione Studium Generale Marcianum in Venice (above) is hosting a new, international moot court competition on the subject of law and religion. The competition, which will take place in Venice next March, will draw teams of students from American and European law schools:

The goal of the Moot Court Competition is to bring together in Venice, for a limited period of time and in an intensive way (9-11 March 2015), a group of law school students in order to make them discuss a case with professional jurists. The students, coming from European and American Law Schools, will participate as teams. They will deal with a case at the intersection between law and religion, a central issue for the entire world and indeed a crucial theme for the Marcianum.

The initiative will bring together scholars and students of different backgrounds to have them address the very same case from two different standpoints. Some scholars will sit as the Supreme Court of the United States; some as the European Court of Human Rights. Teams will argue the same case before one of the two boards of judges. After a verdict, a roundtable will gather some scholars to debate the case as well as the way the two moot courts have addressed it.

This approach will give the students an opportunity to measure themselves with a case related to fundamental rights, developing reflective and argumentative skills and, at the same time, it will offer them, and the other participants, the occasion to highlight the different cultural points of view of the two Courts, enhancing the comparative perspective.

I’ll serve as one of the judges on the moot American court, along with Professor Bill Kelley of Notre Dame and Judge Richard Sullivan of the Southern District of New York. Professors Louis-Leon Christians (Catholic University of Louvain), Mark Hill (Cardiff University) and Renata Uitz (Central European University Budapest) will make up the European panel. Professor Silvio Ferrari (Milan) and Brett Scharffs (BYU) will serve as keynote speakers.

For details on the competition, as well as entry requirements, please click here.