Category Archives: CLR News

Movsesian Lecture at Houston’s Lanier Library (Sept. 6)

For readers in the neighborhood, I’m delighted to say that I’ll be giving a lecture, “Religious Freedom for Mideast Christians, Yesterday and Today,” at the Lanier Theological Library in Houston on Saturday, September 6:

Recently, in a city in Syria, an Islamist group imposed on Christian citizens the dhimma, the traditional “agreement” governing relations with Christians in Islamic law. According to the dhimma, Christians are tolerated as long as they pay a special tax and agree to abide by restrictions on worship and other public behavior. The dhimma governed Christians for centuries, but was abolished 150 years ago, when Mideast countries generally adopted Western models of religious equality. Its reappearance in Syria today has sent a chilling message to Christians throughout the region.

In this lecture, Professor Mark Movsesian, Director of the Center for Law and Religion at St. John’s University in New York, will discuss the religious freedom concerns of Christians in the Mideast. He will explore the historical treatment of Christians and describe the situation today. Inparticular, he will explain the current threats to Christians and explain why some observers believe the Christian communities of the Mideast are going through one of the worst periods of persecution in their history.

Details are here. Stop by and say hello!

Conference on International Religious Freedom Photo Gallery

This summer, the Center for Law and Religion co-hosted a conference in Rome, “International Religious Freedom and the Global Clash of Values,” with the St. John’s Center for International and Comparative Law and LUMSA University. We were honored that Pope Francis offered some remarks on religious freedom to kick off the conference. Pictures of various conference-related events can be found below.

The Forum in the Law Reviews

One interesting development in legal scholarship over the last 10 years or so is the increasing importance and prominence of legal blogs as a source of academic commentary. And one measure (a minor one, to be sure, but an interesting one) of the success of legal blogs in affecting legal academic commentary and discussion is the growing frequency of their citations in traditional law reviews. I am surely not the first to make these observations, and doubtless other legal blogs have been cited in law reviews more times than has our relatively young Center for Law and Religion Forum, which is 3 years old. Still, here are the Forum’s citations in the law reviews over its life:

1. Andrew Koppelman, “Freedom of the Church” and the Authority of the State, 21 J. Contemp. Legal Issues 145 (2013).

  • FN 95: “Steven D. Smith, How Important is Public Support for Religious Freedom?, Center for Law and Religion Forum, July 16, 2012, http://clrforum.org/2012/07/16/ how-important-is-public-support-for-religious-freedom-2-2/).”

2. Jed Glickstein, Should the Ministerial Exception Apply to Functions, Not Persons?, 122 Yale L.J. 1964 (2013).

3. Marie A. Failinger, Twenty-Five Years of Law and Religion Scholarship: Some Reflections, 30 Touro L. Rev. 9 (2014).

4. Elizabeth A. Clark, Liberalism in Decline: Legislative Trends Limiting Religious Freedom in Russia and Central Asia, 22 Transnat’l L. & Contemp. Probs. 297 (2013).

  • FN 95: “Mark L. Movsesian, Copycats, Ctr. for L. & Religion Forum (Aug. 25, 2012),http://clrforum.org/2012/08/25/copycats (noting arrest of copycat protesters who interrupted service in cathedral in Cologne, Germany).”

5. Michael A. Helfand, Religion’s Footnote Four: Church Autonomy As Arbitration, 97 Minn. L. Rev. 1891 (2013).

  • FN 134: “Michael Helfand, The New Footnote Four?, Center for L. & Religion (May 25, 2012), http://clrforum.org/2012/05/25/the-new-footnote-4/ (arguing that footnote four of Hosanna-Tabor undermines the jurisdictional approach to the religious clauses)”

6. Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L. Rev. 343, 344 (2014).

7. Bruce Ledewitz, Experimenting with Religious Liberty: The Quasi-Constitutional Status of Religious Exemptions, 6 Elon L. Rev. 37 (2014).

8. Perry Dane, Natural Law, Equality and Same-Sex Marriage, 62 Buff. L. Rev. 291 (2014).

Like Us? Tell the ABA

Just a reminder that the American Bar Association is soliciting suggestions for its annual list of the 100 best legal blogs. 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!

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.