Category Archives: CLR News

My Review of Steve Smith’s Rise and Decline of American Religious Freedom

I’ve got a review of Steve’s book over at The University Bookman. A bit from the beginning:

In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.

This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.

Some Notes on the Libertas Project’s Religious Freedom Workshop

I am just back from passing a wonderful few days of fellowship and reflection at the Libertas Project’s workshop on religious freedom, hosted by the gracious and erudite Michael Moreland at Villanova Law School and sponsored by the generous Templeton Foundation. Together with other MOJ denizens Kevin Walsh and Michael Scaperlanda, I had the pleasure of talking together with a terrific group of learned political theorists, historians, theologians, and law professors about various issues–old and new–concerning the historical trajectory and current condition of the right of religious freedom.

Zak Calo and I had the privilege of moderating the seven sessions of the workshop. And the three of us–Michael, Zak, and I–worked together to assemble a panoramic set of readings to direct the group’s attentions and reflections:

  • Chapters from Brad Gregory’s The Unintended Reformation and Mark Lilla’s The Stillborn God kicked things off
  • A historical session on Burke, the relationship of establishment and regimes of religious toleration, and the intellectual history of the maxim, “Christianity is part of the common law”
  • A session that included readings by Murray and Niebuhr set against United States v. Seeger
  • A session that considered Pope Benedict XVI’s Regensburg Address, Micah Schwartzman’s article about the moral justifiability of religion’s special constitutional protection, and Town of Greece v. Galloway
  • And finally a few sessions devoted to Steve Smith’s recent book, The Rise and Decline of American Religious Freedom, with applications and speculations about various contemporary controversies

In all it was an extremely successful and productive event bringing together a broad range of disciplinary expertise and insight. I’ll have a bit more to say about some of the more particular subjects that interested me, but for now just want to congratulate Michael on organizing this excellent conference.

Like Us? Please Tell the ABA

The American Bar Association is compiling its annual list of the 100 best legal blogs–that’s “blawgs,” for you uninitiated–and is soliciting reader suggestions. We were honored to make the list this past year and would be honored for a repeat. So, if you like the work we’re doing here at the Center for Law and Religion Forum–the Commentaries, Podcasts, and Scholarship Roundups, the Around the Web feature, the Conversations, Debates, and Guest Posts from law professors and other experts–please nominate us. The nomination form is here and the deadline is August 8. Thanks!

Pope Francis’s Remarks on Religious Freedom for Our Conference (DeGirolami trans.)

I took a shot at translating Pope Francis’s remarks on religious freedom, which he addressed to the participants at our conference on international religious freedom. I have tried to be faithful to the text, sacrificing a bit of readability. I have done this in part because some partial translations I’ve seen are not true enough to the original, even if the resulting translation here still leaves some open spaces in meaning (which, at any rate, should not be filled by the translator). Here is the original in Italian. I’ve also got a few comments at the end of the translation.

I welcome you on the occasion of your international conference, dear brothers and sisters. I thank Professor Giuseppe Dalla Torre for his courteous words. 

Recently the debate about religious freedom has become very intense, asking questions of both governments and religious denominations. The Catholic Church, in this respect, refers to the Declaration Dignitatis Humanae, one of the most important documents of the Ecumenical Council Vatican II.

In effect, every human being is a “seeker” of truth about his own origins and his own destiny. In his mind and in his heart arise questions and thoughts that cannot be repressed or suffocated, inasmuch as they emerge from the deeps and are by nature connected with the intimate essence of the person. These are religious questions and they demand religious freedom to manifest themselves fully. These questions seek to shed light on the authentic meaning of existence, on the ties that connect it to the cosmos and to history, and they mean to pierce the darkness by which the human condition would be surrounded if such questions were not asked or if they remained answerless. The Psalmist says: “When I see your heavens, work of your fingers/ the moon and the stars that you have fixed, / what then is man that you would remember him, / a son of man that you would care for him?” Psalms 8: 3-4.

Reason recognizes in religious freedom a fundamental right of man that reflects his highest dignity, that of the capacity to seek the truth and to adhere to it, and recognizes in that right an indispensable condition in order to deploy his own potentialities. Religious freedom is not only the freedom of a thought or of a private sect. It is freedom to live according to ethical principles consequent to discovered truth, whether privately or publicly. This is a great challenge in the globalized world, where weak thought—which is like a disease—lowers the general ethical level, and in the name of a false notion of tolerance ends by persecuting those who defend the truth about man and that truth’s ethical consequences.

Legal regimes, national or international, are called to recognize, guarantee, and protect religious freedom, which is a right that inheres intrinsically in the nature of man, in his dignity as a free being, and is also an indicator of a healthy democracy and one of the principal fonts of the legitimacy of the state.

Religious freedom, implemented in constitutions and in laws and translated into coherent behaviors, favors the development of relationships of mutual respect among the different faiths and their healthful collaboration with the state and political society, without confusion of roles and without antagonisms. In place of the global conflict of values, coming from a nucleus of universally shared values, a global collaboration in view of the common good becomes possible. 

By the light of the acquisitions of reason, confirmed and perfected by revelation, and of the civil progress of peoples, it is incomprehensible and worrisome that, even today, in the world there remain discriminations and restrictions of rights for the sole reason of belonging to and professing publicly a certain faith. It is unacceptable that true and actual persecutions exist for reasons of religious membership! And wars too! This wounds reason, attacks peace, and humiliates the dignity of man.

It is a motive of great pain for me to observe that Christians in the world suffer the largest number of such discriminations. Persecution against Christians today is even more powerful than in the first centuries of the Church, and there are more Christian martyrs than in that era. This is happening more than 1700 years after the edict of Constantine, which granted freedom to Christians to profess their faith publicly.

I hope profoundly that your conference illustrates with depth and scientific rigor the reasons that today oblige the legal order to respect and defend religious freedom. I thank you for this contribution. I ask you to pray for me. From my heart I wish you the best and I ask God to bless you. Thank you.

Some brief thoughts:

1. A note on the fourth paragraph with Patrick Brennan’s good questions in mind. According to my translation, the Pope did not say that “every person has a right to seek the freedom to live according to ethical principles, both privately and publicly, consequent to the truth one has found.” The full paragraph fragment in Italian is:

La ragione riconosce nella libertà religiosa un diritto fondamentale dell’uomo che riflette la sua più alta dignità, quella di poter cercare la verità e di aderirvi, e riconosce in essa una condizione indispensabile per poter dispiegare tutta la propria potenzialità. La libertà religiosa non è solo quella di un pensiero o di un culto privato. E’ libertà di vivere secondo i principi etici conseguenti alla verità trovata, sia privatamente che pubblicamente.

The phrase in question, as well as the entire paragraph fragment, is more faithfully translated as “discovered truth” rather than “the truth that one has found” ; “discovered truth” refers back to the same truth that is being sought for in the previous section of this paragraph.

2. Note the reference to the “global clash of values” in paragraph six–a specific comment on our conference–and the Pope’s statement that such a clash can be overcome. That struck me as relevant to the discussion that Tom Berg and I have been having here, here, and here.

3. Nevertheless, in spite of his optimism about the prospects for religious freedom, the Pope expresses great distress about the plight of Christians in the world today, as can be seen in the paragraphs toward the close of the speech.

Skepticism about International Religious Freedom: Types 1 and 2

A little more on last week’s conference, “International Religious Freedom and the Global Clash of Values,” which CLR co-hosted in Rome.

First, a word of thanks to the participants. The presentations were thoughtful, the debate sharp but respectful. It was all one could want in an academic conference. And we had a private audience at the Vatican with Pope Francis! As Marc writes, to have the Pope address us personally, on a subject we study, at a conference we helped organize, was a remarkable experience.

We’ll post videos of the presentations as they become available. (A video of Pope Francis addressing the group is here). For now, though, I’d like to say just a few words about what I saw as one of the central themes at the conference: a certain skepticism about the promise of “international religious freedom.”

To be sure, many at the conference endorsed the idea of international religious freedom. International human rights law accepts that such a concept exists. International courts and organizations apply it; national governments purport to promote it in their foreign policy. Perceptive scholars like Heiner Bielefeldt, the UN’s Special Rapporteur on Freedom of Religion or Belief, who appeared on one of our panels, work hard to advance it across the globe. Yet the concept of international religious freedom also provokes some skepticism, and did so at the conference. It seems to me this skepticism takes one of two forms, what we might call “Type 1″ and “Type 2″skepticism.

Type 1 skepticism holds that, although a universally applicable concept of religious freedom exists, states and international organizations lack the commitment to make it effective. At the conference, the Berkley Center’s Tom Farr expressed this sort of skepticism. He maintained that religious freedom is grounded in human nature itself. “Religion,” he argued, “is the universal human search for a greater-than-human source of being and ultimate meaning.” Because the search for transcendence is part of what it means to be human, the international order must allow people to participate in the search without unnecessary obstruction.  “To deny a person the right to engage in this search and to live in accord with the truths he discovers,” Tom maintained, “is to deny the very essence of what it means to be human.”

This formulation owes a great deal to natural law; indeed, in his remarks to the group, Pope Francis spoke of religious freedom in much the same terms. The problem for Tom, the source of his skepticism, is that states, including liberal Western states, do not do enough to protect this universal right. For example, he noted, “the American policy of advancing international religious freedom, which is highly rhetorical and lacks any strategic rationale, has been largely anemic and ineffective.” He noted that the post of US ambassador for international religious freedom has been vacant for months.

The second sort of skepticism, what I am calling “Type 2 skepticism,” differs fundamentally. It objects to the notion that “religious freedom,” as human rights advocates define it, is a neutral, universally applicable concept. What the human rights community perceives as neutral and universal is in fact a product of a particular culture and history–Western Christianity and the Enlightenment, especially the latter. One cannot legitimately expect other civilizations–Islamic, Hindu, Confucian, even Eastern Christian–simply to adopt religious freedom as Western lawyers define it. At the conference, Emory’s Abduh An-Na’im expressed this sort of skepticism. Religious freedom, he argued, must be expressed in idioms that non-Western societies can accept without surrendering their own religious and cultural heritage. I can’t recall his exact words, but he put it something like this: “If I have to choose between my ‘religion’ and ‘human rights,’ I’ll choose my religion every time.”

The two types of skepticism are related. Indeed, Type 2 skepticism provides an explanation for Type 1. In a world where civilizations differ on the core meaning of religious freedom, advancing a universal formulation is impossible. You might get states to agree on vague treaty language; the treatment of the right to change one’s religion in the International Covenant of Civil and Political Rights offers a famous example. But enforcement is another matter.

None of this is to say the we should give up on the idea of international religious freedom. Religious persecution around the world is too widespread, too serious a problem, for lawyers simply to throw up their hands. The two kinds of skepticism suggest, though, that as a practical matter advocates for international religious freedom may need to accept somewhat modest goals, at least for the present, and avoid universal assumptions that create unnecessary obstacles for their project.

More on Corporations in Hobby Lobby

At the Religion News Service site, Cathy Lynn Grossman discusses the overheated rhetoric about for-profit corporations in the Contraception Mandate case, quoting my recent post on the subject at the Cornerstone site. As I’ve said, the Court could easily avoid the slippery slope by limiting its holding to close corporations like Hobby Lobby itself. Stay tuned — we’ll know pretty soon.

Reflections on “International Religious Freedom and the Global Clash of Values”

Mark has noted the important and interesting talk that Pope Francis gave about the condition of religious freedom around the world–a very fitting address inaugurating our conference in Rome, “International Religious Freedom and the Global Clash of Values.” It really was quite special and memorable to have the Pope give remarks on a subject that we study here at the Center, at an audience we attended, for a conference that we organized. I thought to add a few thoughts about some of the themes that emerged from the conference presentations.

The keynote address was delivered by the Berkley Center’s Tom Farr, whose primary claim was that in order for international religious freedom to thrive as a human right, we need a deeper grounding–both principled and pragmatic–of the importance of the right of religious freedom as both an anthropological reality and as a practical necessity. I had the honor of moderating Tom’s talk and asked him whether in this particular climate what was needed was a thicker account of religious freedom or instead an (even) thinner account. He gave a thoughtful answer reflecting both the need for deep structures of justification and the difficulty of achieving consensus about them.

The first panel concerned the politics of international religious freedom and included the United States Ambassador to the Holy See, Ken Hackett, the United Nations Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, and Pasquale Annicchino of the European University Institute. It was in Dr. Bielefeldt’s talk that a useful tension began to emerge among some of the speakers–between those who were bullish or optimistic about the prospect that international law can effectively promote religious freedom and those who were a little more skeptical. Dr. Bielefeldt falls into the more optimistic camp–a good thing indeed, given his position. He emphasized the difference between the promotion of religious freedom in order to advance civic peace, on the one hand, and its promotion in order to vindicate a basic human right, on the other. Here I was reminded of the controversial “civic peace” justification in the American law of religious freedom.

The second panel dealt with comparative perspectives on international religious freedom. The perspectives compared included those of the member states of the Council of Europe and of Italy specifically. Here I was particularly interested in Marco Ventura’s lucid presentation about the difference between divergent and convergent approaches to religious freedom among and across European member states. Professor Ventura described the move toward convergence and argued for even greater convergence than has already been achieved. I had some questions about this coming from a country that has also struggled with the issue of convergence and divergence in the constitutional law of religious freedom. Here again, the tension between globalism and regionalism was in evidence in a slightly different way.

The third panel concerned Islamic and Christian perspectives on international religious freedom, and included presentations by Abdullahi Ahmed An-Na’im, Olivier Roy, and Nina Shea. Here the primary point of tension involved the causes or roots of religious persecution of these two major religious groups. And here, too, there was skepticism, principally from Professor An-Na’im, about the efficacy of human rights regimes to protect religious freedom. “There was a world before international human rights, and there will be a world after international human rights,” he said.

In all, a very rewarding set of presentations.

Pope Francis Opens Center’s Conference with Statement on Religious Liberty, Persecution of Christians

Pope Francis opened our conference in Rome last week with a statement on religious liberty and the persecution of Christians. He reflected on the place of religious liberty in Catholic thought and decried religious discrimination across the world, particularly against Christians.

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Pope Francis Greets Conference Participants (News.va)

The Pope’s remarks came at a special audience at the Vatican for participants in the conference, “International Religious Freedom and the Global Clash of Values,” which the Center for Law and Religion co-sponsored with the St. John’s Center for International and Comparative Law and the Department of Law at the Libera Università Maria SS. Assunta. Referring to the Second Vatican Council’s declaration, Dignitatis humanae, the Pope argued that people require religious freedom in order to be fully human:

“Every human is a ‘seeker’ of truth on his origins and destiny,” the Pope said. “In his mind and in his ‘heart,’ questions and thoughts arise that cannot be repressed or stifled, since they emerge from the depths of the person and are a part of the intimate essence of the person. They are religious questions, and religious freedom is necessary for them to manifest themselves fully.”

He called religious freedom “a fundamental right of man.” It is “not simply freedom of thought or private worship,” but “the freedom to live according to ethical principles, both privately and publicly, consequent to the truth one has found.”

“Legal systems, at both national and international level, are therefore required to recognize, guarantee and protect religious freedom, which is a right intrinsically inherent in human nature.”

Religious freedom is also “an indicator of a healthy democracy” and “one of the main sources of the legitimacy of the state,” the Pope continued.

Nowadays, international and domestic law protect religious freedom. Notwithstanding this protection, however, religious discrimination continues. In fact, Pope Francis noted, 1700 years after the Edict of Milan, Christians worldwide suffer disproportionate discrimination and persecution. “The persecution of Christians today is even more virulent than in the first centuries of the Church,” he said, “and there are more Christian martyrs today than in that era.”

We’ll have a fuller discussion of the Pope’s statement when the Vatican releases an official English translation. Meanwhile, here’s a video report on the audience in English.

Movsesian on the Hobby Lobby Case

Cornerstone has published a short essay of mine on whether a corporation like Hobby Lobby qualifies as a person for purposes of RFRA. Relying on a comment from Chief Justice John Roberts at oral argument, I suggest that the Court may draw a distinction, for RFRA purposes, between large, publicly-held corporations and small, privately-held corporations like Hobby Lobby itself:

In truth, there is something very odd in the notion that a large, publicly-traded corporation with thousands of institutional shareholders around the world—Exxon-Mobil, for example—has religious scruples that guide its conduct. (Most Exxon-Mobil shareholders, I think, would be deeply surprised.) Large, publicly-traded corporations exist principally to make profits for the shareholders, who remain passive with respect to the corporation’s day-to-day operations. Religion is the farthest thing from their minds.

Moreover, if such corporations could exercise a religion, chaos could result. How would we determine when a corporation has a belief, Justice Sotomayor asked? Which of the thousands of shareholders would be entitled to raise their religious scruples? Would the majority of shareholders—51%—decide the matter for everyone else? What about the minority shareholders who object?

On the other hand, it isn’t strange to think that some for-profit corporations might exercise religion. As law professors Alan Meese and Nathan Oman argue in a recent essay in the Harvard Law Review, most American corporations are small, private firms with a only a handful of shareholders. In such corporations, the shareholders take great interest in day-to-day operations and may run their businesses with religious convictions in mind.

You can read my essay here.

UPDATE: Revised Conference Agenda– “International Religious Freedom and the Global Clash of Values”

Here is the updated schedule for our upcoming conference, International Religious Freedom and the Global Clash of Values, in Rome, Italy on June 20-21. If you happen to be in Rome, it would be great to have you!

The Center for International and Comparative Law and the Center for Law and Religion at St. John’s School of Law, and the Department of Law at the Libera Università Maria SS. Assunta, are pleased to present an academic conference:

International Religious Freedom and the Global Clash of Values

Taking place in Rome on Friday, June 20, 2014, and Saturday, June 21, 2014, the conference will bring together American and European scholars and policymakers to discuss the place of religious freedom in international law and politics. Speakers will address a variety of perspectives. Proceedings will be in English and Italian with simultaneous translation.

Revised Conference Agenda

Friday, June 20, 2014

1:30 – 2:30 p.m.
Lunch

2:30 – 2:45 p.m.
Welcome

2:45 – 4 p.m.
Keynote Panel
Religious Freedom in International Law, Yesterday and Today
Thomas Farr (Georgetown University)
John Witte, Jr. (Emory University)
Moderator: Marc DeGirolami (St. John’s University)

4:15 – 5:30 p.m.
Panel 1: The Politics of International Religious Freedom
Pasquale Annicchino (European University Institute)
Heiner Bielefeldt (UN Special Rapporteur on Freedom of Religion or Belief)
Hon. Ken Hackett (US Ambassador to the Holy See)
Moderator: Margaret E. McGuinness (St. John’s University)

Saturday, June 21, 2014

8:30 – 9 a.m.
Coffee

9 – 10:15 a.m.
Panel 2: Comparative Perspectives on International Religious Freedom
Francisca Pérez-Madrid (University of Barcelona)
Marco Ventura (Catholic University Leuven and University of Siena)
Roberto Zaccaria (University of Florence)
Moderator: Monica Lugato (LUMSA)

10:15 – 10:30 a.m.
Coffee

10:30 – 11:45 a.m.
Panel 3: Christian and Muslim Perspectives on International Religious Freedom
Abdullahi Ahmed An-Na’im (Emory University)
Olivier Roy (European University Institute)
Nina Shea (Hudson Institute)
Moderator: Mark L. Movsesian (St. John’s University)

Noon – 12:30 p.m.
Conference Conclusions
Giuseppe Dalla Torre
LUMSA

Location
LUMSA, Complesso del Giubileo
via di Porta Castello, 44 – Roma

Registration
Please register to attend the conference by June 9 at: eventi@lumsa.it

More Information
Monica Lugato | LUMSA Department of Law | monicalugato@lumsa.it
Mark L. Movsesian | St. John’s School of Law |Mark.Movsesian@stjohns.edu