Category Archives: Commentary

Mayor de Blasio Reverses NYC Dept of Education Policy of Exclusion

New York City Mayor Bill de Blasio has reversed the New York City Department of Education’s policy of exclusion of religious groups that engage in “worship” from the use, on equal terms with other groups, of public school classrooms–a policy that was upheld several times by the Second Circuit as vindicating “interests favored by the Establishment Clause.” The Mayor concluded that “[a] faith-based organization has a right like anyone else” to use the public school space.

David Cameron on the Persecution of Christians

The persecution of Christians, slowly, is making its way onto the world’s agenda. In his annual Easter message, British Prime Minister David Cameron (above) urged churches in Britain to do more to draw attention to the suffering of Christians across the globe. Cameron also spoke, unusually, about his own Christian faith and the benefits Christianity “brings to Britain.” Skeptics might perceive an attempt to smooth relations with rank-and-file Conservatives, many of whom Cameron antagonized by supporting same-sex marriage. But politicians always have a variety of motives. Cameron deserves credit for raising the issue of persecution at a time when many in the West ignore it.

And why do so many in the West ignore the persecution of Christians? The always valuable John Allen explains:

Why isn’t this global war on Christians more of a cause célèbre?Fundamentally, the silence is the result of a bogus narrative about religion in the West. Most Americans and Europeans are in the habit of thinking about Christianity as a rich, powerful, socially dominant institution, which makes it hard to grasp that Christians can actually be victims of persecution.

I’ve made a similar point myself, here.

Quote for the Day

On the spread of American pop culture across the globe:

[S]ince the Internet ensures that barriers are transgressed with impunity, the lowest forms of human life will in due course dominate the screen in every living room, and the blame for this will fall squarely on America. Of course, that will be unjust. The blame for watching destructive images falls on the person watching them. The problem is that people are sorely tempted beings, unable to protect themselves from their own worst desires without the help of a culture that backs up their efforts.

Roger Scruton, Pop Imperialism.

How Do You Say “Nones” in French?

From a French post describing my work on the Nones:

Est-il important de donner une définition au mot “religion”? Mark Movsesian, professeur de Droit à l’Université St. John a récemment publié un article sur la montée de la population des “Sans”, ces Américains qui se déclarent sans appartenance religieuse. Selon certaines évaluations, ils seraient 20% des adultes et, parmi les “millénaristes”, atteindraient 30%.

So it’s “les Sans.” I’d have thought it was “les Riens,” or maybe “les Aucuns.” Que sais-je? You can read the whole post in French here.

Report: Obama Administration to Increase Aid to Syrian Rebels

 

Kessab19

Holy Mother of God Armenian Apostolic Church in Kessab

The Wall Street Journal reports today that President Obama’s national security advisers have agreed on a proposal to increase US aid to “moderate” Syrian rebels. Although the advisers disagree on the advisability of more aggressive military intervention, they have apparently coalesced around a plan for US Special Forces to train and equip the moderates. This is in line with a report on Walter Russell Mead’s blog that Obama agreed during a recent visit to Saudi Arabia to supply the rebels with shoulder-launched anti-aircraft missiles, or “manpads.”

One can understand the Administration’s frustration. Two-and-a-half years after Obama said that Assad would have to go, and several months after the President’s about-face on chemical weapons, the Assad regime seems more secure than it has for a long time. But two factors counsel strongly against more aggressive assistance to the rebels. First, as Patrick Brennan writes, “for months and months now, it’s been obvious that the effective parts of the Syrian opposition are militant Islamists” like the Nusra Front and the Islamic State in Iraq and the Levant (ISIL). Pro-Western moderate rebels, the sort the Administration likes to promote, are more or less “powerless.” If the opposition were to succeed in overthrowing Assad, it’s quite possible that the Islamists would overwhelm their secular allies–perhaps through a democratic election, as in Egypt in 2012–and transform Syria into an Islamist state. How would that advance America’s interests? 

Second, assistance to the rebels would almost certainly worsen the already dire situation of Syria’s Christians. Just in the last two weeks, the Nusra Front attacked the Armenian town of Kessab, displacing thousands of Christians. Fortunately, first reports of a massacre seem to have been unfounded. Indeed, the rebels are conducting a PR offensive to assure Kessab–and the world community–that they mean no harm. Christians are skeptical, and with good reason. ISIL recently imposed the centuries-old dhimma in a different Christian town, Raqqa, and, as UN Secretary General Ban Ki-moon observed this morning, “gross human rights violations undeniably continue.” Islamists have kidnapped nuns and bishops and murdered clergy. Only today, masked gunmen, presumably Islamist rebels, murdered a Catholic priest in a rebel-controlled district in the city of Homs. For these reasons, Syria’s Christians mostly support the Assad regime, usually quietly, sometimes vocally.

At this writing, it’s not clear whether the plan to equip and train the Syrian rebels will be adopted. In the words of the Journal report, “It isn’t clear where Mr. Obama stands.”

Supreme Court Declines to Hear Wedding Photographer Dispute

The Supreme Court today denied certiorari in Elane Photography v. Willock, the case involving a claim by a photography business that it was compelled to create images celebrating a gay wedding pursuant to New Mexico’s public accommodations statute, in violation of the business owner’s First Amendment rights.

The decision by the Supreme Court not to hear the case leaves in place the New Mexico Supreme Court’s decision against Elane Photography.

More Establishment Clause Bloat from the Second Circuit

As Ms. Wright reports below, the United States Court of Appeals for the Second Circuit has issued its latest decision in Bronx Household of Faith v. Board of Education of the City of New York. For lots of background on the case, which involves equal access to a limited public forum–public school classrooms–after hours for a religious organization that engages in, among other things, “worship,” just type “Bronx” into the search tool at right, and see this post in particular. The court found for the City, with a dissent by Judge Walker.

Writing for the panel majority, Judge Leval framed the case in these terms:

This appeal raises the question whether the Board of Education of The City of New York (the “Board”), in making the City’s school facilities available outside of school hours for use by outside users and subsidizing such use, may, in furtherance of interests favored by the Establishment Clause of the First Amendment, refuse to permit the holding of religious worship services.

The trouble ought to be evident already. What exactly are “interests favored by the Establishment Clause”? Are they the same as interests the violation of which would be unconstitutional? Clearly not. If they were such interests, then it would be unconstitutional for the City to permit Bronx Household of Faith to use its facilities. But it isn’t unconstitutional for the City to do so. So what are these “interests”? How is the City acting consistently with “its constitutional duties” here? What “duties”? The City has no “constitutional duties” to exclude this organization.

After resurrecting the hoary distinction between “expression” and “conduct” (never mind that the Free Exercise Clause protects “exercise”), the court continues:

the Hialeah ordinances [in the Lukumi Babalu case] were motivated by the city council’s disapproval of the targeted religious practice. The Board has no such motivation. There is not a scintilla of evidence that the Board disapproves of religion or any religion or religious practice, including religious worship services. Its sole reason for excluding religious worship services from its facilities is the concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion. This difference is of crucial importance in determining the reach of Lukumi’s reasoning that a burdensome regulation focused on a religious practice is constitutionally suspect and therefore subject to strict scrutiny. This reasoning makes perfect sense when the regulation’s focus on religion is gratuitous, and all the more so when it is motivated by disapproval of religion (or of a particular religion or religious practice). On the other hand, it makes no sense when the regulation’s focus on religion is motivated by the governmental entity’s reasonable interest in complying with the Establishment Clause….The Establishment Clause prohibits government from engaging in conduct that would constitute an establishment of religion, such as endorsing, or seeming to endorse, a religion. It is only to the extent that governmental conduct affects religion that the restrictive force of the Religion Clauses is operative. Accordingly, rules and policies designed to keep a governmental entity in conformity with its obligations under the Religion Clauses must of necessity focus on religious subject matter.  If the focus is not religious, the Religion Clauses have no application. Such focus on religion is neither an invidious discrimination nor constitutionally suspect. To the contrary, it is inevitable.

(12-13, emphasis added). I see. So a municipality can exclude religious people and organizations from access on equal terms to a limited public forum such as a public school classroom if including them would be not only “endorsing” religion but also “seeming to endorse” religion.

What does it mean to “seem to endorse religion”? I’m reminded of triple inchoate crimes in criminal law, like attempting to attempt to solicit somebody to commit a crime. What government exclusion of religion would be impermissible under a standard that protects an interest in appearing or seeming to favor religion? The court says that it would not be constitutionally impermissible for the government to issue the following rules: “This city shall not adopt any rule or practice that constitutes an improper burden on the free exercise of religion, or that constitutes an establishment of religion.” Or, “No school or teacher shall compel any student to participate in religious exercises, or seek to persuade any student to alter his or her religious beliefs.” I don’t understand the point of these examples. Of course those rules would be permissible. Those rules reflect what the Religion Clauses actually prohibit, not what they “appear” or “seem” to prohibit.

There are other debatable features of the majority opinion, including the extension of Locke v. Davey, which involved state subsidies, to this limited public forum case. More to the point, however, appearance of endorsement is not the standard under the Establishment Clause as misguidedly interpreted by the Supreme Court even since the Allegheny case. But as I have explained before, the endorsement test, with its emphasis on hurt feelings, offenses taken (and given), and the delicacy of personal sensibilities is at least partly to blame for what is an “inevitable” and deeply regrettable bloating of the Establishment Clause.

CLR Podcast on Sebelius v. Hobby Lobby

In our most recent podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss last week’s oral argument in Sebelius v. Hobby Lobby, the Contraception Mandate case. We address the background of the litigation, the rhetorical strategies adopted by each side, and the major doctrinal questions the Court will need to resolve. We also make predictions about how the Justices will ultimately rule. The podcast will be useful for students and others looking for an introduction to this extremely important case.

Toobin: Hobby Lobby Challenge is About Hurting Poor People

Jeffrey Toobin has an article in The New Yorker (no, not the one about how Justice Thomas is incompetent because he is overweight) that expresses the view that the challenge to the contraceptives mandate in Hobby Lobby is really just part of a larger effort to deprive poor people of needed medical care. Here’s his evidence:

The political nature of the case was an open secret during the argument at the Court. Sotomayor told Paul Clement, the lawyer for Hobby Lobby, who was a solicitor general under George W. Bush, “You picked great plaintiffs.” (Customarily, of course, it is the plaintiffs who pick the lawyers.) Elena Kagan pointed out to Clement that he was really attacking the entire law. “Isn’t that just a way of saying that you think that this isn’t a good statute, because it asks one person to subsidize another person?” she asked. “But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, no, I don’t want to give that, that woman is quite directly, quite tangibly harmed.”

It comes as news to me that what Hobby Lobby objects to is the concept of a legislative subsidy, rather than a government regulation–and not a statute–that decides how the subsidy will be financed. And I’m sure Hobby Lobby will be surprised to learn that it doesn’t care about poor people–say, the poorer of its own employees for whom it provides health plans–health plans that some have urged it simply to abandon if it feels so strongly about its religious objections.

And here is a line from Peter Berger’s latest column: “I am not overly fond of The New Yorker magazine with its incongruous mix of politically correct articles and advertisements for outrageously expensive goods.”

President Obama and Pope Francis on Mideast Christians

In the Boston Globe, the always worthwhile John Allen analyzes today’s meeting between President Obama and Pope Francis. Although the two men will agree on issues like economic inequality, Allen says, they will likely differ on others, including, notably, Mideast policy.

Pope Francis often highlights the crisis Mideast Christians face; President Obama, not so much. “Few on the Catholic side are inclined to see the Obama administration as a great defender of those Christians at risk,” Allen writes, “while standing up against violent anti-Christian persecution is emerging as a cornerstone of Francis’ social and political agenda”:

On Egypt, Obama took a “pox on both your houses” stance last summer with regard to the Muslim Brotherhood and the army after a military council declared controversial President Mohamed Morsi deposed. The Vatican was more favorable to the military intervention, inclined to see it less as a coup and more as a reflection of popular will.

In Syria, the Obama administration has made the removal of President Bashar al-Assad a precondition for any negotiated end to that country’s civil war, while the Vatican is more skeptical about regime change, in part out of concern that whatever follows Assad might actually be worse.

Underlying these contrasts is that the Vatican’s reading of the Middle East is heavily conditioned by the perceptions of the Christian minorities in these countries, who generally see either a powerful military or strong-arm rulers as a buffer between themselves and Islamic radicalism. They often point to Iraq, where a once-thriving Christian community has been gutted in the chaos that followed the collapse of Saddam Hussein.

You can read the full article here.