Category Archives: Commentary

America’s Duty to Iraq’s Christians

At The Week, columnist Michael Brandon Dougherty has a hard-hitting piece on America’s responsibility to Iraq’s Christians. In light of the fact that America’s invasion, occupation, and withdrawal created a situation of great and continuing peril for Christians, America should be doing much more to help them. For example, he writes:

Although I’m generally inclined toward a more restrictive position on immigration, the U.S. should, as a matter of practice, be especially generous in granting refugee status to the collateral victims of the war we started in Iraq. It should even offer some refugees of ISIS persecution the material resources to emigrate to America if they so desire.

The dream of transforming Iraq into an incubator of Arab liberalism has turned into a nightmare for religious minorities. America’s intervention in Iraq, and its support of Syrian and Libyan rebels, have created a disastrous disorder in which Islamist threats thrive.

Mosul was a home for Christians for as long as Christianity existed. Not anymore. Now, the U.S. cannot restore these people to their homes, or reverse the desecration of Christian shrines. But our diplomatic, financial, and moral energies should be used to protect them from any further harm.

Read the whole thing.

Is ISIS Ready to Move on Aleppo?

This is very disturbing news. Walter Russell Mead reports that ISIS, last seen expelling the Christians of Mosul, Iraq, from their ancestral homeland, may be readying an attack on Aleppo in Syria:

A Syrian army officer interviewed by al-Monitor is entirely certain that this fight is coming. Maybe not tomorrow, but “very soon,” he says—and the regime is preparing itself.

The fall of Aleppo would have strong symbolic resonance across the Middle East. If ISIS were to capture Aleppo, it will have two of the oldest cities in the Middle East in its pocket. Mosul is the fabled city of Nineveh while Aleppo is the ancient city of Halab, and no one power has held both strongholds since the Ottoman Empire. While this may not seem like a big deal to Western observers, history is experienced very differently especially in that part of the world. And jihadists love a winner: The possession of two storied cities would be a big selling point in ISIS’ recruitment drive.

The Assad regime would offer a much tougher opponent than the hapless Maliki government in Iraq, Mead notes. And Assad “has at least the reluctant backing of Syria’s minorities, who fear that ISIS will conduct the same sort of ethnic cleansing in Syria as it has in Iraq.” Still, as Syria’s financial center, Aleppo would be a great prize, and ISIS will be sorely tempted to keep up the momentum. Stay tuned.

Peter Berger on the Anglican Establishment

At The American Interest, Peter Berger has an interesting post on the benefits of the Anglican establishment. He suggests, citing sociologist Grace Davie, that other countries should consider a soft establishment along Anglican lines, as a way “to combine a specific religious identity with freedom for all those who do not share it”:

Grace Davie, the distinguished British sociologist of religion, has proposed an interesting idea: A strong establishment of a church is bad for both religion and the state–for the former because the association with state policies undermines the credibility of religion, and for the latter because the support of one religion over all others creates resentment and potential instability. But a weak establishment is good for both institutions, because a politically powerless yet still symbolically privileged church can be an influential voice in the public arena, often in defense of moral principles. Davie’s idea nicely fits the history of the Church of England.  In earlier centuries it persecuted Roman Catholics and discriminated against Nonconformist Protestants and Jews. More recently it has used its “bully pulpit” for a number of good causes, not least being the rights of non-Christians. Thus very recently influential Jewish and Muslim figures have voiced strong support for the continuing establishment of the Church of England, among them Jonathan Sacks, the former Orthodox Chief Rabbi of Great Britain, and the Muslim Sayeeda Warsi, currently  Minister of Faith and Communities in David Cameron’s cabinet.

Of course it would be foolish to recommend that the British version of state/church relations be accepted in other countries—as foolish as to expect other countries to adopt the very distinctive American form of the separation of church and state. However, as I have suggested in other posts on this blog, the British arrangement is worth pondering by other countries who wish to combine a specific religious identity with freedom for all those who do not share it. For starters, I’ll mention all countries who want legislation to be based on “Islamic principles” (not full-fledged sharia law); Russia, struggling to define the public role of the Orthodox Church; Israel trying to define the place of Judaism in its democracy; India, similarly seeking to fit hindutva into its constitutional description as a “secular republic”. In a globalizing world, cross-national comparisons can be surprisingly useful.

 

Obama Administration Announces Plans to Revise the Contraceptives Mandate

This CNN story reports that the White House has announced “revisions” to the contraceptives mandates that was the subject of both the Hobby Lobby and more particularly the Wheaton College litigation. But after reading the body of the story, it may be more precise to say that the White House has announced that it plans to revise the mandate. Here’s a quote from an Administration official: “In light of the Supreme Court order regarding Wheaton College,” said the official, “the Departments intend to augment their regulations to provide an alternative way for objecting nonprofit religious organizations to provide notification, while ensuring that enrollees in plans of such organizations receive separate coverage of contraceptive services without cost sharing.” Though the Wheaton College order was not a final disposition on the merits but only a preliminary injunction, the announcement suggests that the Administration believes that it may lose on the merits as well.

The story reports that the revised rule will be issued “within the month.”

The Dhimma Returns in Iraq

al arabiya

Photo: Al Arabiya

Sad news from Iraq this weekend. In response to an ultimatum from ISIS–the “Islamic State in Iraq and Syria,” or, if you prefer, just the “Islamic State–Christians have evacuated the northern city of Mosul. For thousands of years, Mosul has been a center of Christianity, particularly the various Syriac Christian communions: Chaldean-rite Catholics, Syriac Orthodox, and the Assyrian Church of the East, a church that once spread as far as China. As recently as a decade ago, tens of thousands of Christians lived in Mosul. After this weekend, virtually none remain.

The expulsion of Christians from Mosul suggests something very worrying about the possible future of Islamism. And it serves as a reminder of what can happen to religious minorities when secular dictatorships in the Arab world collapse.

Mosul lies within the territory of the “caliphate” that ISIS, a militant Sunni Islamist group, has proclaimed in parts of Iraq and Syria. Its ultimatum to the Christians of Mosul is the same it gave the Christians of Raqqa, Syria, last spring. “We offer them three choices,” ISIS announced last week: “Islam; the dhimma contract – involving payment of jizya; if they refuse this they will have nothing but the sword.” In recent days, ISIS operatives went through Mosul marking the homes of Christians with the Arabic letter “Nun” for “Nasara,” from “Nazarenes,” a word that refers to Christians. The implications were clear.

Some readers may be unfamiliar with the term dhimma. The dhimma is the notional contract that governs relations between the Muslim umma and Christians (and Jews) in classical Islamic law. Theoretically, it dates back to the “agreement” one of the early caliphs made with the Christian community of Syria. The dhimma allows Christian communities to reside in Muslim society in exchange for payment of a poll tax called the jizya—in Mosul, ISIS was requiring a jizya of about $500—and submission to various social and legal restrictions. The dhimma forbids Christians from attracting attention during worship, for example, from building new churches, and generally from asserting equality with Muslims.

It’s wise to take ISIS at its word. On Saturday, ISIS operatives expelled the 52 Christian families who remained in the city–after first requiring them to leave all their valuables behind. For good measure, ISIS also burned an 1800-year-old church and the Catholic bishop’s residence, along with its library and manuscript collection.

One could say much about this sad uprooting of Christianity from a place where it has survived for millennia, but here are two observations. First, a psychological line has been crossed, and this may have dire consequences in future. For the moment, ISIS is unique among Islamist groups in calling for formal reinstatement of the dhimma. Although Islamists everywhere reject the idea of equality for Muslims and Christians, they typically avoid calling for the dhimma, as they understand that most contemporary Muslims find the concept abhorrent. Nothing succeeds like success, however. ISIS has now shown that it is possible to reestablish the dhimma at the center of the Muslim world. Other Islamist groups will no doubt take notice. Christians who remain in the Middle East have great cause for worry.

Second, although principal responsibility for this outrage lies with ISIS, and with Iraq’s Prime Minister, Nouri al-Maliki, whose misgovernment has created a situation in which ISIS can gain a following, the United States bears responsibility as well. Its invasion of, and hasty withdrawal from, Iraq set in motion a chain of events that has allowed radical groups like ISIS to succeed. In the Middle East, secular dictatorships can be very brutal. But they are often the only thing that stands in the way of the absolute destruction of minority religious communities. Toppling such dictatorships and hoping for their replacement by “moderate” elements is not a good bet. Incredibly, this seems to be a lesson the United States still has to learn.

New York Times Columnist: Hobby Lobby Majority is Like Boko Haram

Really, I mean it.

It’s tough to keep pace with the monumental, colossal stupidity these days about this case. It would be a full-time job to respond to all of the garbage, and who’s got the energy or inclination for that? This poor man aligns the Hobby Lobby Supreme Court majority with ISIS and Boko Haram. The unifying thread–both are anti-American:

The most horrific of the religion-inspired zealots may be Boko Haram in Nigeria. As is well known thanks to a feel-good and largely useless Twitter campaign, 250 girls were kidnapped by these gangsters for the crime of attending school. Boko Haram’s God tells them to sell the girls into slavery….

Violent Buddhist mobs (yes, it sounds oxymoronic) are responsible for a spate of recent attacks against Muslims in Myanmar and Sri Lanka, leaving more than 200 dead and close to 150,000 homeless. The clashes prompted the Dalai Lama to make an urgent appeal to end the bloodshed. “Buddha preaches love and compassion,” he said.

The problem is that people of faith often become fanatics of faith. Reason and force are useless against aspiring martyrs.

In the United States, God is on the currency. By brilliant design, though, he is not mentioned in the Constitution. The founders were explicit: This country would never formally align God with one political party, or allow someone to use religion to ignore civil laws. At least that was the intent. In this summer of the violent God, five justices on the Supreme Court seem to feel otherwise.

“The founders” certainly were not “explicit” in the Constitution about the points that Egan makes. “Explicit” means “clearly stated.” Where are the points Egan makes about the Constitution clearly stated? What “intent” does he refer to? There is lots of evidence that at least some of “the founders” actually would recognize that religion sometimes can provide grounds for viable and cognizable objections to civil laws. Nothing “explicit” in the Constitution absolutely prohibits such a recognition. And I daresay that “the founders” would rise up in unison to shout down the abject fool who lumped together organizations that kidnap, torture, and kill people with a court of law that, agree or disagree with its decision, does its best to interpret the law. There are many times when I disagree with the Supreme Court’s decisions as to fundamental questions. But I recognize that those are legal disagreements. Cannot Egan do the same? In what way did “five members of the Supreme Court” align themselves with a “violent God” by ruling as they did, rather than simply issue a decision with which Egan disagrees?

Where is there to go with such talk? What is there left to say?

The Necessity of Legal Sacralization

One of the topics of a Libertas Project session concerned the Napoleonmaxim, “Christianity is part of the common law.” There is a fascinating debate between Thomas Jefferson and Joseph Story (both in their unofficial capacities) about the maxim, much of which concerns the accuracy of the translation from the French of the phrase, ancien scripture, as used by a fifteenth century judge named Sir John Prisot (Chief Justice of Common Pleas, as far as I have been able to determine). You can see the debate worked out in this fine volume edited by Professors Daniel Dreisbach and Mark David Hall. The maxim was invoked in 19th century American judicial decisions concerning violations of anti-blasphemy laws as well as Sunday closing laws. But what did the phrase mean, and when did it go out of usage, and why?

In a superb article, When Christianity Was Part of the Common Law, Professor Stuart Banner explores the use and the decline of the maxim. It seems to have been used relatively frequently in judicial decisions of the 19th century, far less frequently in the early 20th, and by mid-century have gone out of usage entirely. Indeed, the last use of the maxim that Banner records is in a 1955 Pennsylvania state court decision that I assign my students in criminal law–Commonwealth v. Mochan–involving a prosecution for “persistent, lewd, immoral, and filthy” phone calls. Banner concludes that the maxim had almost no tangible legal effect on the substance of the 19th century blasphemy and Sunday closing law prosecutions. Those cases were about disturbing the peace in general, not about specific injuries done to Christianity that the law could remedy.

Does this mean that the maxim was functionally useless. Not at all. The maxim did not go to the substance of law, but to its nature. And the fact that the maxim falls out of use in the early twentieth century has as much or more to do with our changing conception of the common law as it does with our changing views about religion. The common law in the older view had an existence independent of the particular statements of judges: it was founded on sources much broader than the positive commands of authorized government functionaries. Those sources, which included Christian sources, sacralized the common law; they rendered it greater and deeper than positive law. One can see this view in a nineteenth century Pennsylvania blasphemy case, Updegraph v. Commonwealth, in which the court said of the common law: “It is not proclaimed by the commanding voice of any human superior, but expressed in the calm and mild accents of customary law.”

What Edmund Burke saw as the political, legal, and constitutional value of establishment is quite similar to the functions that the maxim served in 19th century America. These both were ways in which law was sacralized. The idea was to remind officials that they are subject to a greater power, and that this greater power is founded on and drawn from sources of transcendence outside the law (see also Town of Greece v. Galloway, as I explained here). In the context of the exercise of judicial power, the sacralizing function of the maxim was to reject the claim that judicial will is all that exists. Just as, in Burke’s view, disestablishment destroys the sacralizing power of law, so, too, does the rejection of the maxim desacralize law in the American experience. Here is Banner:

Where the common law has this sort of existence independent of the statements of judges, it can include systems of thought otherwise external to the legal system without causing any tension. If the common law can be found in our architecture, in our dreams, in our manner of speech—and especially in our prerational judgments as to right and wrong—then there is nothing mystical about the notion that the common law incorporates Christianity.

This view of the common law simply died out. We no longer believe that judges discover the common law. We believe that they, and they alone, make it. When judges render a decision, that decision is not–as the old view had it–”the best evidence of the common law” but not itself the common law. The common law just is the judicial will. If judges recognize the doctrines of Christianity as part of the common law, they are making Christianity the law. That is exactly a reason that the maxim would raise Establishment Clause complaints today where in the past it would raise none.

And yet I wonder what fills the void in place of the sacralizing meta-doctrine that Christianity is part of the common law. There are two possibilities. The first is that the modern state is no longer in need of sacralization or consecration at all. We just know better today. This seems to be the view taken by Banner at the conclusion of his piece.

But a second possibility is very different. It posits that all states—and certainly all modern states whose ambit of power is large and ever-increasing—depend on sacralizing credos and maxims. If the maxim that Christianity is part of the common law is dead, other credos reflected in new maxims inevitably must take its place. No state, and especially no state whose jurisdiction is expanding into realms traditionally overseen by other social powers—can long survive without the consecration of its law.

#BringBackOurChristians

Last spring, Boko Haram, a jihadist group fighting to establish an Islamist state in Nigeria, kidnapped hundreds of girls from a public school in the city of Chibok. The kidnapping led to a worldwide hashtag campaign, #BringBackOurGirls. Media celebrities signed up; political leaders, too, such as British Prime Minister David Cameron. American First Lady Michelle Obama famously tweeted a photo from the White House.

Three months have passed. Boko Haram has not released the girls, but the hashtag is no longer trending. The media has moved on to other stories. In fact, Boko Haram appears to miss the attention. This week, the group released a video to remind the world it’s still around.

The video features the group’s leader, Abubakar Shekau (left), ridiculing the West’s campaign to free the girls and demanding, instead, that Nigeria’s President, Goodluck Jonathan, release members of Boko Haram currently in prison. “You go around saying ‘Bring Back Our Girls,’” he mocks. “Bring Back Our Army.” For good measure, he repeats gleefully into the camera, “Kill, Kill, Kill, Kill Christians!”

The video is worth watching for a couple of reasons. First, it’s a nice lesson in the limits of social media. Feel-good hashtag campaigns, on their own, accomplish precisely nothing. To refer without irony to “the promise of the hashtag,” as a State Department spokesperson recently did in the context of the Ukraine crisis, is an embarrassment. Groups like Boko Haram will laugh off such trivialities or, indeed, co-opt them for their own purposes. So will other, more sovereign, opponents.

I don’t suggest the West should send commandos to Nigeria to free the girls, even assuming we could find them. Invading countries has a way of backfiring. In fact, we may not be capable of very much in this situation, unfortunately. But one thing’s for sure. Juvenile, self-regarding tweets–the foreign-policy version of selfies–will only make the West seem effete and, well, laughable.

Second, Shekau’s call to “Kill Christians” clarifies something important. As as a result of the Chibok kidnapping, the West sees Boko Haram as anti-women. But that’s a relatively minor part of the story. Boko Haram is not principally anti-women, but anti-Christian. The group has been carrying out atrocities against Christians for years. It’s just that the West has not found the story important. Indeed, Chibok itself is a largely Christian city, and most of the kidnapped schoolgirls are Christians. That’s a major reason why Boko Haram abducted them in the first place.

The media and Western human rights advocates have a hard time seeing Christians as sympathetic victims. Even when they acknowledge that Christians are suffering, they feel they somehow have to apologize for raising the subject. (Nicholas Kristof’s recent column for the New York Times is a good example). This bias prevents clear understanding, though. “Bring Back Our Girls?” How about, “Bring Back Our Christians?”

Shiffrin on Hobby Lobby

First Amendment scholar Steven Shiffrin has a typically thoughtful post on the Hobby Lobby decision. Part of what makes the post so good is that it follows from Steve’s own longstanding and (to me) persuasive criticisms of the extraordinary lengths to which we are prepared to recognize rights of free speech. Parenthetically, the last time I checked, Steve is not particularly well-known for his dyed-in-the-wool conservatism. But setting aside that rather tedious ideological point, it is quite striking to see the expansive interpretation of the rights of speech (whatever the source–constitutional or statutory) in conjunction with what critics of decisions like Hobby Lobby argue should be a narrowing of the rights of religious freedom. Steven goes through a few of the issues, but among the best parts of Steve’s post is the following:

I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification.

Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim….

Why protect those who traffic in depictions of the abuse of animals and the like, but not protect the conscience of conservative Christians?

À La Lanterne

A reader points out that today is Bastille Day, the anniversary of the French Revolution, which brought laïcité to Europe. In commemoration whereof, here is a fun quiz from NPR about the Marseillaise, an anthem that will raise the ire of all Throne-and-Altar types. I’m not naming names.