Category Archives: Mark L. Movsesian

Conference: “Common Sense in the West” (Long Island, July 17-20)

The Adler-Aquinas Institute will host a conference, “Common Sense in the West,” in Huntington, NY, on July 17-20. Here’s a description from the Blog of the Courtier website:

An upcoming conference co-sponsored by the Adler-Aquinas Institute, Renewing the West by Renewing Common Sense, will give those of you with a philosophical bent the chance to meet with others of like mind, in order to consider some of the issues facing Western society today, as old bonds fracture and need repair or replacement.  How does the church receive funding from the state going forward, if said funding increasingly has moral and ethically problematic strings attached to it? How do we see the question of theological anthropology now, in the wake of the new, trendy version of atheism? What can we learn from the ideas and leadership styles of figures like Ronald Reagan and St. John Paul II?  What lessons about tyranny from Socrates are still applicable in the present socio-political climate?

These are some of the topics to be considered the weekend of July 17-20 at the inaugural international conference, which will be held at the beautiful Seminary of the Immaculate Conception on Long Island  Registration is still available, and includes accommodation, meals, and receptions, but spaces are becoming limited.  You can find out how to register by visiting the Adler-Aquinas Institute site.

European Court Decides Church Autonomy Case; Russian Judge Calls Clerical Celibacy a Human Rights Violation

I’m a little late getting to this, but I wanted to say a few words about Fernández Martínez v. Spain, the church autonomy case the European Court of Human Rights decided last month. By a vote of 9-8, the court held that Spain did not violate the European Convention on Human Rights when it declined to renew the contract of a public school teacher who had been offering classes in Catholicism.

Because of the close vote, some commentators have expressed worries about the case’s implication for church autonomy in Europe. I think those worries are overstated. The closeness of the vote turns on the peculiarities of the Spanish public school system, in which state employees offer religious instruction. The dissent of the Russian judge does cause concern, however. Judge Dedov’s opinion suggests a bias against Catholicism unlike anything I can remember in a judicial opinion.

In Spain, public schools offer religious instruction at state expense. The teachers are state employees. But the Spanish government has entered into agreements with four religious communities–Catholic, Evangelical, Jewish, and Muslim–which provide that schools will select instructors in those religions from candidates the communities certify as suitable. With respect to classes in Catholicism, the local Catholic bishop must approve instructors. Fernández Martínez lost his job when the local bishop refused to approve him. The bishop withdrew his approval when Fernández Martínez, a Catholic priest who had decided to marry and raise a family, appeared at a public protest in favor of optional clerical celibacy.

Fernández Martínez argued that the refusal to renew his contract violated his right under Article 8 of the Convention “to respect for his private and family life.” The court disagreed. The interference with the claimant’s right was justified in this case, it held. Spain had acted to protect the important principle of church autonomy, specifically, the right of the Catholic Church to designate which people could offer Catholic instruction in the public schools. Although the instructors were state employees, they were also representatives of the Church. It was not unreasonable for the Church to assert that Fernández Martínez’s conduct affected his credibility as a Catholic representative.

All this seems straightforward. So why was the vote so close? The eight dissenting judges expressed some unfortunate skepticism about what they called “absolute” church autonomy. To my mind, though, the key factor seems to have been that Fernández Martínez was a state employee, paid from public funds. As a result, the dissenters believed, the state had an obligation to him independent of the Church’s decision. It “is not the Bishop’s decision that should be scrutinized,” the dissenters wrote, “but the [state's] reaction to that decision.” For example, the state might have tried to find Fernández Martínez another position that would not involve teaching Catholicism. Instead, the state had simply let him go.

Judge Dmitry Dedov

In short, the closeness of the vote reflects the peculiarities of the Spanish system, in which teachers of Catholicism are state employees, rather than the principle of church autonomy itself. (I recognize that the Spanish system may not be so peculiar in the European context, but that’s a subject for another post.) On the other hand, one of the dissents does raise serious concerns. In a personal dissent, which no other member of the court joined, the Russian judge, Dmitry Dedov, argued that mandatory priestly celibacy was itself a human rights violation the court should not tolerate.

Mandatory celibacy has been a “well-known and serious problem” in Catholicism for centuries, Dedov wrote, citing Victor Hugo’s The Hunchback of Notre Dame and Colleen McCullough’s The Thorn Birds. It had caused a great deal of grief and led priests to abuse children “in many countries.” One could not justify holding people  to a vow of celibacy, even a voluntary one:

The Convention protects freedom of religion…. But it does not entitle religious organizations, even in the name of autonomy, to persecute their members for exercising fundamental human rights. If the Convention system is intended to combat totalitarianism, then there is no reason to tolerate the sort of totalitarianism that can be seen in the present case.

“I believe,” he concluded, “that optional celibacy is the best way out of this problem and that it could also–I hope–serve as a preventive measure against clerical sex abuses of children in the future.”

I suppose Judge Dedov, who attended a Soviet university in the 1980s, is in a position to know something about totalitarianism. But, really, his dissent is an embarrassment. No one asked Judge Dedov for his views on clerical celibacy. The merit of religious doctrine is not a matter for secular human rights judges to address, and certainly not in a simplistic and gratuitously insulting way. (The Thorn Birds? Really?) And to assert, without offering evidence, that Catholicism’s rules on clerical celibacy have themselves caused the sex abuse crisis–a crisis that has, no doubt, many causes–is not what one expects from a judge.

In a human rights court, litigants from religious communities have a right to think the judges will treat them fairly and, to the extent possible, decide cases without bias. Judges are not there to offer musings on comparative religion. Judge Dedov’s dissent suggests he has a personal problem with the Catholic Church. He should take that problem somewhere else.

“Religion and Inequality in America” (Keister & Sherkat eds.)

Next month, Cambridge University Press will release Religion and Inequality in America: Research and Theory on Religion’s Role in Stratification, edited by Lisa A. Keister (Duke University) and Darren E. Sherkat (Southern Illinois University). The publisher’s description follows:

Religion is one of the strongest and most persistent correlates of social and economic inequalities. Theoretical progress in the study of stratification and inequality has provided the foundation for asking relevant questions, and modern data and analytic methods enable researchers to test their ideas in ways that eluded their predecessors. A rapidly growing body of research provides strong evidence that religious affiliation and beliefs affect many components of well-being, such as education, income, and wealth. Despite the growing quantity and quality of research connecting religion to inequality, no single volume to date brings together key figures to discuss various components of this process. This volume aims to fill this gap with contributions from top scholars in the fields of religion and sociology. The essays in this volume provide important new details about how and why religion and inequality are related by focusing on new indicators of inequality and well-being, combining and studying mediating factors in new and informative ways, focusing on critical and often understudied groups, and exploring the changing relationship between religion and inequality over time.

Justice Sotomayor’s Puzzling Dissent in the Wheaton College Case

Sonia_Sotomayor_in_SCOTUS_robe

Justice Sonia Sotomayor

The battle over the ACA’s Contraception Mandate continues. Yesterday, the Supreme Court granted a temporary injunction to Wheaton College, a religious nonprofit that is challenging the mandate in federal court. As a religious nonprofit, Wheaton qualifies for a regulatory accommodation. It can avoid the mandate by completing a form stating that it opposes covering contraceptives for its employees and giving this form to its third-party plan administrator; the administrator must then provide contraceptive coverage to the employees at its own expense. Wheaton objects that completing the form and submitting it to the administrator would make it complicit in providing coverage for contraceptives, which it opposes on religious grounds. As a consequence, Wheaton argues, the accommodation itself violates RFRA.

Yesterday, by 6-3 vote, the Court ruled that the government may not enforce the mandate against Wheaton pending final disposition of Wheaton’s legal challenge. As a result, until the case is resolved, Wheaton need not complete the form or provide it to the plan administrator. The government, which obviously knows about Wheaton’s challenge, may arrange contraceptive coverage for Wheaton’s employees in the meantime. The Court expressly stated that its grant of a temporary injunction “should not be construed as an expression of the Court’s views on the merits” of Wheaton’s challenge.

Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissented. Her dissent is puzzling. On the one hand, she makes a valid point about the standard for granting this sort of injunction. Traditionally, a high bar exists. The Court will grant an injunction only if the legal rights at issue seem “indisputably clear.” At this point, it’s hard to say that about Wheaton’s claim. There are arguments on both sides and, as Justice Sotomayor points out, the district court hasn’t yet determined the facts and adjudicated the case.

But Justice Sotomayor didn’t stop there, and the rest of her opinion is unfortunately problematic. Here are three quick examples:

  • Internal Inconsistency: Notwithstanding her complaint that the Court had preempted the trial judge’s adjudication of the merits of Wheaton’s claim, Justice Sotomayor presumes to decide the merits herself. “Wheaton has not stated a viable claim under RFRA,” she writes. That seems rather a prejudicial statement, especially as Wheaton’s case, or one very like it, will undoubtedly reach the Court soon. Besides, the Court expressly stated that it wasn’t ruling on the merits of Wheaton’s claim. One should note that, later in her dissent, Justice Sotomayor says only that “Wheaton’s claim is likely to fail.” So perhaps her first statement was  just  a little careless. But one expects more in a Supreme Court opinion.
  • Unfair Criticism: Justice Sotomayor sharply criticizes the Court for going back on its word earlier this week in Hobby Lobby. In Hobby Lobby, the Court indicated that the accommodation is a less restrictive means of promoting the government’s interest in women’s health than the mandate itself. If the accommodation is an acceptable alternative in Hobby Lobby, she asks, why not in this case? This criticism is unfair. The Hobby Lobby Court didn’t say the accommodation is the least restrictive means of promoting the government’s interest, only that it is a less restrictive means than the mandate itself. True, the Court’s language in Hobby Lobby was a little opaque. But it’s wrong to suggest the Court is being sneaky or indecisive.
  • Pot and Kettle: You’d hardly know it from reading Justice Sotomayor’s opinion, but last January she herself joined the Court in granting a similar injunction to another religious nonprofit challenging the mandate, the Little Sisters of the Poor. In a footnote in yesterday’s opinion, Justice Sotomayor tries to distinguish the January case, but not very convincingly. The Little Sisters’ third-party administrator wasn’t going to cover contraceptives anyway, she writes, so, unlike Wheaton’s employees, the Little Sisters’ employees had nothing to lose. But does anyone think Wheaton’s employees will lose contraceptive coverage during the course of this litigation? Both Wheaton’s third-party administrator and the government are aware of the situation and will undoubtedly make such coverage available.

As I say, Justice Sotomayor could simply have discussed the high standard for a temporary injunction and left it there; that would have made for a much stronger opinion. As it is, her dissent suggests a level of frustration that the Court’s ruling yesterday really doesn’t merit. Perhaps Justice Sotomayor knows something she’s not saying about how the Justices will likely decide the next challenge to the mandate that reaches them.

Independence Day, 1821

An Early Vision

“And now, friends and countrymen, if the wise and learned philosophers of the older world, the first observers of mutation and aberration, the discoverers of maddening ether and invisible planets, the inventors of Congreve rockets and shrapnel shells, should find their hearts disposed to inquire, what has America done for the benefit of mankind?

“Let our answer be this–America, with the same voice which spoke herself into existence as a nation, proclaimed to mankind the inextinguishable rights of human nature, and the only lawful foundations of government….

“Wherever the standard of freedom and independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will recommend the general cause, by the countenance of her voice, and the benignant sympathy of her example.

“She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself, beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom. The fundamental maxims of her policy would insensibly change from liberty to force. The frontlet upon her brows would no longer beam with the ineffable splendor of freedom and independence; but in its stead would soon be substituted an imperial diadem, flashing in false and tarnished lustre the murky radiance of dominion and power. She might become the dictatress of the world: she would be no longer the ruler of her own spirit.”

–  John Quincy Adams, Speech to the US House of Representatives, July 4, 1821

Abbas, “The Taliban Revival”

Last month, Yale University Press released The Taliban Revival: Violence and 9780300178845Extremism on the Pakistan-Afghanistan Regime, by Hussein Abbas (National Defense University). The publisher’s description follows:

In autumn 2001, U.S. and NATO troops were deployed to Afghanistan to unseat the Taliban rulers, repressive Islamic fundamentalists who had lent active support to Osama bin Laden’s Al-Qaeda jihadists. The NATO forces defeated and dismantled the Taliban government, scattering its remnants across the country. But despite a more than decade-long attempt to eradicate them, the Taliban endured—regrouping and reestablishing themselves as a significant insurgent movement. Gradually they have regained control of large portions of Afghanistan even as U.S. troops are preparing to depart from the region.

In his authoritative and highly readable account, author Hassan Abbas examines how the Taliban not only survived but adapted to their situation in order to regain power and political advantage. Abbas traces the roots of religious extremism in the area and analyzes the Taliban’s support base within Pakistan’s Federally Administered Tribal Areas. In addition, he explores the roles that Western policies and military decision making— not to mention corruption and incompetence in Kabul—have played in enabling the Taliban’s resurgence.

“Being Muslim in South Asia” (Jeffrey & Sen, eds.)

Next week, Oxford releases Being Muslim in South Asia: Diversity and Daily Life, edited by Robin Jeffrey (National University of Singapore) and Ronojoy Sen (National University of Singapore). The publisher’s description follows:

This book contributes to the rich recent scholarship on contemporary Islam in South Asia. It provides insights into the controversies of the past 150 years over how South Asian Muslims ought to respond to the challenges of modernity and Western imperialism. Though such contests of ideas began with a few intellectuals, their consequences flowed through to touch the lives of ordinary people. The book also traces the processes, in train since British times, that have created large social categories out of diverse, dispersed communities. In the past, such communities shared only a common devotion, a sacred book and the duties the book enshrined. This volume highlights the diversity of peoples and practices among South Asians who follow Islam. Readers learn about aspects of those practices in the resolution of disputes, the education of children, the marriage of offspring, and the recreations of leisure time. The book does not underplay the violence, oppression, and uncertainty that Muslims of South Asia too often face in recent times. Overall, the book invites readers to contemplate the diverse daily lives of the more than 500 million people who are Muslims in South Asia.

European Human Rights Court to France: Do Whatever You Want

This week, Americans understandably have been occupied with the Hobby Lobby case and its implications for religious freedom in our country. But across the Atlantic, the European Court of Human Rights was handing down its own decision on the scope of religious freedom, S.A.S. v. France. The European Court held that France’s ban on clothing designed to cover one’s face in public–what everyone knows, for obvious reasons, as the “burqa ban”–does not violate the European Convention on Human Rights. The court’s ruling reveals the challenges of enforcing a regional, European standard with respect to religious expression.

Some background: Article 9 of the European Convention recognizes a right to manifest one’s religion or belief, subject to limitations that are necessary to promote certain legitimate state interests, including public safety and “the protection of the rights and freedoms of others.” Any such limitation must be proportionate to the interest the state asserts. The European Court has made clear that Article 9 need not apply uniformly across Europe. Given different national histories and cultures, states have discretion to adapt article 9 in light of the needs and values of their particular societies. The Europeans refer to this discretion as the states’ “margin of appreciation.”

France argued that the ban on burqas is necessary to promote public safety and protect the rights and freedoms of others–specifically, the right of people to live in an “open society” characterized by “civility” and “social interaction.” The court rejected the first argument. Even assuming the burqa posed a risk in some circumstances, it held, a blanket ban is disproportionate. If the concern were public safety, a more targeted ban would be appropriate–in the context of security checks, for example.

The court agreed with France, though, that the ban could be justified on the basis of promoting an “open society”–at least, an open society in the French manner. Obviously, not all societies see the burqa as problematic. In Europe, only Belgium has a similar ban. But the French people had decided that the burqa violates “the ground rules of social communication” in their country. This decision deserved deference, the court held. Given the margin of appreciation in such matters, the court would honor France’s determination that “the voluntary and systematic concealment of the face is … incompatible with the fundamental requirements of ‘living together’ in French society.”

This level of deference is really quite breathtaking. Essentially, the European Court is saying, a state can ban religious expression in order to maintain local norms of “living together.” What ban on religious expression would not be allowed under such a standard? Let’s pose a hypothetical case. France already prohibits conspicuous religious dress in public schools. Let’s assume France decides to extend this ban to all public places, arguing that conspicuous religious dress in public creates unnecessary tension and interferes with social interaction à la française. Under the court’s deferential approach, wouldn’t such a ban be permissible? What would be the basis for second guessing France’s assertion about what French social norms require?

The deference to national norms is unavoidable in the context of the Council of Europe, a regime that includes scores of states with widely varying cultures and histories. One size simply doesn’t fit all. If the European Court is to have any legitimacy, it will often need to defer to national judgments on sensitive issues. Still, the European Court purports to pursue a common European standard in respect of human rights. Decisions like S.A.S. suggest that pursuit has a long way to go.

Conference: “The Making of Jerusalem” (Jerusalem, July 2-4)

The Armenian Apostolic Patriarchate of Jerusalem in hosting a conference, “The Making of Jerusalem: Constructed Spaces and Historic Communities,” from July 2 to July 4:

Jerusalem is one of the most contested cities around the world with a rich and complex history. With its web of sacred sites, quarters, and neighbourhoods, it represents a polyglot of historical communities. Today’s Jerusalem is a testament to its temporal, physical and demographic transformations over the centuries. The purpose of this inter-disciplinary conference is to explore various aspects in the making of the city while focusing on historic communities and their concept of – and relationship with – space (be it sacred or secular). It brings together papers from different fields such as history, the social sciences, art, literature, religious studies and area studies, emphasising the Early Modern and Modern periods.

Details are here.

Podcast on Hobby Lobby

In our latest podcast, Mark and I discuss yesterday’s decision in Burwell v. Hobby Lobby Stores, Inc., the contraception mandate case. We summarize and explain the background, the holding, and the reasoning of the case. We also consider possible implications for future religious freedom challenges.