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Religious Literacy Training for Law Students?

Posted on May 14, 2013 by | 3 Comments

When law professors grouse behind closed doors, one of their favorite topics is how law students lack fundamental knowledge and skills they were supposed to get in high school and college.  According to prevailing wisdom, law students don’t know how to write a proper sentence, are ignorant of the most basic historical facts, have no concept of economics, and couldn’t construct a syllogism to save their lives.

Much of this is curmudgeonly hazing of the young by the old that is a regularized and institutionalized rite of one’s transition from youth to age.  “In the good old days, we actually learned things in school.”  Having passed the forty-year mark and hence being an official curmudgeon, I shall indulge in a little whining of my own.  My complaint is the lack of basic religious literacy among law students. 

To be fair, this is not just a phenomenon of law students or the young more generally. A 2010 Pew survey found an appalling lack of religious knowledge in the United States, which is by many measures a highly religious country. More than half of Protestants could not identify Martin Luther as a leader of the Protestant Reformation. And about four in 10 Jews didn’t know that Maimonides was Jewish.  Forty-five percent of Roman Catholics didn’t know that, according to church teaching, the bread and wine used in the Eucharist becomes the body and blood of Christ.  (Interestingly, atheists and agnostics scored higher than religious adherents in the survey).

It’s my sense that the mainstream of the American educational system eschews teaching about religion, not necessarily out of hostility, but out of a fear that religion is too hot and divisive a topic to handle in polite company.  The demise of universal Sunday School or comparable religious training and the diminished rigor of such training even where it exists have contributed to a state of affairs where most people know little about their own religion, much less the religious beliefs of others.

This dearth of general religious knowledge is borne out in my own experience as a law professor.  Comments drawing on religious teachings or metaphors—Moses’ smashing of the tablets, the parable of the Good Samaritan, etc.—are often greeted with blank stares, uncomfortable silence, or nervous giggles, as if I were making oblique references to early 80s Swedish disco music.  The occasional student will tell me outside of class that they enjoyed my references since they were a religion major in college, as if the key tenets of the religions that shaped Western civilization are today the sorts of esoteric and specialized knowledge committed to a few nerdy academics.

Unlike early 80s Swedish disco music (which is catchy but insipid), religious literacy remains key to legal literacy.  One cannot understand the development of the common law, the American constitutional order, or even the rise of the modern regulatory state without some conception of the underlying system of religious beliefs. 

One wonderful example:  In The Origins Reasonable Doubt:  Theological Roots of the Criminal Trial, Yale legal historian Jim Whitman shows that our current assumptions about the reasonable doubt standard in criminal cases have the history exactly backwards.  Today, everyone assumes that the reasonable doubt standard is meant to protect the criminal defendant—to give him every benefit of the doubt and erect barriers to over-zealous prosecutors.  Whitman shows that, historically, this story has it absolutely backwards.  The reasonable doubt standard developed not for the purpose of making prosecutions harder but to make them easier.  To understand why requires a basic understanding of Christian doctrine.  In eighteenth century England, jurors took seriously Jesus’ command, “judge not or you will be judged.”  The jurors feared that if they passed a wrongful judgment of conviction—keeping in mind that Jesus himself was wrongly convicted—they themselves would be eternally damned.  The crown finally started telling juries that if they found guilt beyond any reasonable doubt, then surely they wouldn’t need to worry about damnation.  So the reasonable doubt standard came into being not to protect the criminal defendant but to facilitate convictions.

Similarly, when my Contracts students struggle to understand the seemingly arbitrary differences between legal and equitable remedies that persist to this day, it’s essential for them to understand that the early Chancellors were Anglican clergymen—and all that implies for the moralistic and religious qualities of equity.  Why the unclean hands doctrine bars a request for an injunction but not one for damages makes no sense unless one understands the role of Christian theology in the development of the English common law and legal institutions.

Alas, helping law students make sense of these subtleties requires introducing some remedial religious education to law school, a project that relatively few law professors have the willingness or capacity to carry out.  While law schools are finding ways to make up for their students’ educational deficits in such areas as writing, economics, history, and logic, religion is largely confined to specialized first amendment courses which are less about the substance of religious doctrines than the ways that the law can avoid touching them.  Legal pedagogy is largely a religion-free zone.

As I said, curmudgeonly whining is a time-honored rite of passage . . . 

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Religious Communities as Disruptive Competitors

Posted on May 9, 2013 by | 2 Comments

Last fall, Barak Richman and I had a friendly exchange on this blog about whether antitrust law should apply to restrictive practices governing rabbinical hiring.  Our debate raised the question of whether antitrust norms are appropriate for regulating competition within religious organizations.  Two recent judicial decisions, one involving Benedictine monks in Louisiana and the other involving a Hutterite colony in Montana, raise questions about commercial competition between religious and secular organizations.

The Benedictine monks case arose out of  Hurricane Katrina, which destroyed part of the St. Joseph’s Abbey’s pine timberlands.  The abbey traditionally harvested pines to support itself.  In need of an alternative source of income, the monks decided to get into the casket business, hand-making two models of “blessed” pine caskets in their workshop.  Before they had sold a single casket, the monks received a cease and desist order from the Louisiana State Board of Embalmers and Funeral Directors.  The monks were informed that they were not allowed to sell caskets unless they “become a licensed funeral establishment, which would require a layout parlor for 30 people, a display area for the coffins, the employment of a licensed funeral director and an embalming room.”  These conditions meant, in effect, that the monks were prohibited from getting into the casket business. The monks brought a constitutional challenge and recently won a surprising victory in the United States Court of Appeals for the Fifth Circuit, which held that “mere economic protection of a particular industry” is not “a legitimate governmental purpose.”

The Montana case concerns a Lehrerleut Hutterite colony in Big Sky, Montana.  The Hutterites live communally, renouncing all private ownership of property and contributing labor to supply the colony’s needs.  Although the Hutterites speak a German dialect, refrain from participation in the political process, and are largely separated from the outside world, they apparently perform some outside construction projects for hire.  Until 2009, the Hutterites were exempted from Montana’s worker’s compensation insurance obligations.  Rival contractors complained that the Hutterites were able to underbid them because of the cost advantage from not having to carry worker’s comp.  The state legislature responded by amending its workers’ comp statute to cover the Hutterites.  The Hutterites challenged the statutory amendment on free exercise of religion grounds, but lost in the Montana Supreme Court.  A petition for certiorari in the U.S. Supreme Court is currently pending.
 
The Louisiana and Montana cases raise very different constitutional questions, but exemplify a common fact–when religious organizations enter commercial markets, they are often disruptive competitors.  In economic theory, a disruptive competitor is one that plays by different rules than other market participants and hence forces other producers to adjust their competitive strategies.  For example, firms that bring new technologies or distribution systems or lower cost structures to markets are said to be disruptive competitors.
 
Disruptive competition is usually considered a good thing.  Markets often become too cozy, complacent, and habit-bound for the good of consumers and even other competitors.  Disruptive competitors shake things up and promote greater efficiency and innovation.
 
I’m not claiming that the Benedictines or Hutterites deserve to win their cases just because they are disruptive competitors.  But when I see business interests invoking state regulations to stymie competition from small communities of monks and farmers, I can’t help rooting for the little guys.

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A Few Comments on Evangelicals and the Legal Elite

Posted on May 2, 2013 by | 1 Comment

I wanted to respond to some of the comments to my post on why evangelicals are underrepresented in the legal elite and thought it might be easier to do it in a separate post.

Several people have attributed evangelical underrepresentation to admissions bias.  That may be part of it, but I doubt that’s a huge factor at least in the last decade or so.  The reason is that law school admissions officers are under HUGE, HUGE pressure to maximize two things:  GPA and LSAT score, which feed into the all-important U.S. News and World Report Rankings.  Yes, other factors are also taken into account, but it’s hard for me to see admissions offices routinely turning down applicants with 3.98 GPAs and 179 LSAT scores just because the undergraduate school happened to be Wheaton, Calvin, Houghton, Taylor, or Westmont.

The suggestion of trying to study this empirically is a great one.  If anyone out there with an interest in these questions is (1) hugely wealthy and/or (2) a skilled social science researcher, there are number of very interesting empirical projects that one could undertake to put some meat on these intuitions.  Drop me a line!

Finally, to the comments that anti-Christian hostility drives evangelicals away, a few observations/questions.  My very preliminary survey data on one elite law school suggested that Catholics were largely holding their national market share (around 20%) whereas evangelicals were not.  Is the elite law school hostility anti-evangelical but not anti-Catholic?  Are the Catholics who go to elite law schools disproportionately from the liberal wing of Catholicism and therefore don’t care about the hostility to traditional Christianity?  In short, why are Catholics but not evangelicals going to these hostile law schools?  

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Does It Matter that Evangelicals Are Underrepresented Among the Legal Elite?

Posted on May 2, 2013 by | 6 Comments

This is the third and last post in my mini-series on evangelical underrepresentation among the legal elite.  My first post presented the claim that evangelicals are underrepresented and the second asked why this might be.  To conclude, I want to ask whether it even matters and, if so, in what ways.  I’ll limit myself to three somewhat random observations.

First, evangelicals don’t seem to care too much about their underrepresentation in the legal elite.  Although there have been a few murmurings about the lack of an evangelical on the Supreme Court, evangelicals seem to be much more interested in judicial appointments that will vote for outcomes favored by evangelicals than on the religious identity of the appointees. Thus, for example, after the Supreme Court nomination of evangelical Harriet Miers fell apart (and to repeat a point from yesterday’s post, observe that Miers, an SMU Law grad, lacked “elite” credentials), there seemed to be no great reaction from evangelicals when John Roberts, a Catholic (who undoubtedly had elite credentials), was picked instead.  The choice of Sam Alito, a Catholic, over one of the (very few) plausible evangelicals (like Mike McConnell) barely registered.

That evangelicals by and large feel “represented” by conservative Catholics in the upper echelons of the legal system is interesting in many ways.  One interpretation is that evangelicals accept that viewpoint rather than identity is what matters to representation—a claim that has all sorts of implications for other kinds of “diversity” questions (i.e, do liberal whites adequately represent the interests of liberal African-Americans?). 

Another implication—and I’ll go ahead and say it although I know I’ll get pushback (perhaps even assassination)—is that evangelicals care about identity, but increasingly understand evangelical and conservative Catholic identity as converging.  Is it possible that, in the post-Vatican II world, evangelicals and Catholics are beginning to see themselves less as mere political allies and more as sharing a common identity in the loyal and traditionalist wing of Christendom?  This is clearly happening at least at the margins (witness the growth of evangelical Catholicism and liturgical revivals within Protestant evangelicalism, for example).

A second point:  Does evangelical underrepresentation in elite legal jobs matter to the way law is performed?  In his wonderful book Constitutional Faith, Sandy Levinson draws parallels between the competing Catholic and Protestant traditions on textualism, authority, and tradition and similar debates in law.  In Levinson’s terminology, a “Protestant” judge would assert that (scriptural) constitutional text trumps tradition and that all citizens are equally entitled to interpret the (scriptures) Constitution for themselves (i.e., paralleling the “priesthood of all believers”).  By contrast, a “Catholic” judge would assert that tradition may be more important than textual exegesis and that the “priesthood” of judges are the ultimate interpreters of the Constitution.

If it were the case that Protestants in general, and evangelical Protestants in particular, were likely to follow a “Protestant” disposition as judges or other legal elites, then the underrepresentation of evangelicals might matter to the construction of law.  Or, at least it would matter in the sense that legal outcomes would be systematically different if there were more evangelicals among the legal elite.  But, in fact, there seems to be little evidence that judges who are Protestant, Catholic, Jewish or anything else are particularly more likely than others to follow a “Protestant” or “Catholic” approach on textualism, authority, and tradition.  For example, as Levinson showed, the notoriously anti-Catholic Hugo Black scores as “Protestant” on textualism but “Catholic” on judicial authority.

Finally, if I’m not convinced that evangelicals would systematically display traditionally Protestant approaches to texts, authority, and tradition, I do think that a greater evangelical presence among the legal elite might have an important effect on the development of law in another way. The defining element of modern American evangelicalism is its individualistic experientialism, its insistence on a personal born-again experience, its adherence to what religion critic Harold Bloom defines as the key trait of any genuinely American religion—walking alone with Jesus in the wilderness.  To be an evangelical means to know Jesus in the heart.

 It is not hard to see the misfit between evangelicalism’s experiential epistemology and law as a rationalistic, deductive system.  But to a pointy-headed legal academic like me, the portrayal of law as rationalistic and deductive seems so nineteenth century.  In the post-realist, post-modern world, law is increasingly understood as personal, subjective, and even experiential.  To take just one small example, the whole “expressivist” strand of contemporary legal scholarship is about how law is received, understood, internalized, and experienced.

Although evangelicals may not understand this well, modern legal thought may be very much up their alley.  It would be a shame if evangelicals continued to stand on the sidelines while the legal academy, the courts, and other legal institutions worked through the implications of law in the post-modern world—something about which evangelicals should have lots to say.

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Why Are Evangelicals Underrepresented Among the Legal Elite?

Posted on May 1, 2013 by | 17 Comments

In a recent post, I asserted that evangelical Protestants are dramatically underrepresented compared to their national demographic figures in the American legal elite.  In this post, I ask why that is the case.  Let me make clear at the outset that I want to avoid causal reductionism, particularly of the kind that leads to easy imputations of blame.  The causes of this phenomenon are surely complex.

Let me begin by offering a thesis:  An important contributing factor to evangelical underrepresentation in the legal elite is evangelical underrepresentation in student enrollments in elite law schools.  Since the American legal elite is overwhelming staffed with graduates of elite law schools, there is at least a strong association between evangelical underrepresentation in student enrollments and the upper echelons of politically important legal jobs.  Since law school pedigrees are very important to securing elite jobs, then it is likely that evangelical underrepresentation in elite law schools provides a significant explanation for evangelical underrepresentation in the legal elite.

In my last post, I asserted (based on admittedly casual evidence) that evangelicals seem to be dramatically underrepresented (again compared to their national demographic percentage of 26%) in elite law student enrollments.  I can’t improve on that assertion for now, but I can provide some evidence on the importance of an elite law school pedigree for securing elite legal jobs.

A few snapshots:  Since 1970, the law school pedigrees of the thirteen Justices appointed to the Supreme Court are:  seven from Harvard, three from Yale, two from Stanford, one each from Columbia, Northwestern, and Washington & Lee.  Attorney General appointments since 1970:  Harvard (5), Chicago (2), Yale (1), Columbia (1), Berkeley (1), George Washington (1), Pittsburgh (1), Maryland (1), Ohio State (1), and Mercer (1).  Solicitor General appointments since 1970:  Harvard (3), Yale (2), Columbia (2), Chicago (2), Berkeley (1), Virginia (1), Duke (1), George Washington (1).  Among the current active or senior status judges on the D.C. Circuit, which is the top feeder circuit to the Supreme Court (with four current Justices having come from the D.C. Circuit), the figures are:  Harvard (4), Chicago (2), North Carolina (2), Yale (1), Virginia (1), Penn (1), Michigan (1), and UCLA (1).  To put a bow on this, of the 54 elite lawyers included in the foregoing lists, only 10 did not attend a traditional Top 10 law school (and the number falls to 8 if Northwestern and Duke, traditional Top 14 law schools, are included).

To bring things closer to home, consider the JD pedigree of faculty at my current employer, the University of Michigan Law School.  On the tenure or tenure-track faculty, the figures are as follows for faculty with a U.S. JD or LLB:  Yale (16), Harvard (9), Columbia (2), Michigan (2), NYU (2), Berkeley (2), Stanford (1), Virginia (2), Chicago (1), George Washington (1), Wisconsin (1).  These figures are broadly representative of the faculty at top law schools.

Now back to evangelicals and elite legal jobs.  If evangelicals are (and historically have been) underrepresented in student enrollments at the Top 10 law schools, which is the opening of the elite pipeline, it will be no surprise that they are underrepresented in the upper echelons of legal jobs.  So why are evangelicals underrepresented in elite law school student bodies?  Let me offer five possible contributing factors:

  1.  Geography

The elite law schools all draw their student bodies nationally, but there may be overall bias (in the statistical sense) toward students from the Northeast, particularly at the two most important “feeder” schools, Harvard and Yale.  Evangelicals are 26% of the nation, but just 10% of the Northeast.  The data are here.  Further, to the extent that the elite schools draw disproportionately not just from particular states or regions but from particular sub-regions (i.e., Manhattan, large metropolitan areas, etc.) or undergraduate schools, the effect may be even more pronounced.

2. Socio-economic status

Evangelicals skew lower in socio-economic status compared to other major religious demographic groups.  Significant indicators in which evangelicals “underachieve” include  household income and educational degree achievement.  To the extent that elite law schools draw disproportionately from upper income and high educational achievement households, socio-economic status may be an important contributing factor to lower evangelical enrollments in elite law school.

3.      Anti-intellectualism

As Mark Noll chronicled in his wonderful book The Scandal of the Evangelical Mind, American evangelicalism has a long and unfortunate tradition of anti-intellectualism.  It would not be surprising to find that some bright evangelical college graduates decline to pursue legal educations at elite law schools because they have been weaned on a deep mistrust of Ivy League intellectualism.

4.      Anti-elitism

Closely related to the last point but a little different is the possibility that a spirit of anti-elitism keeps some evangelicals away from elite law schools.  It is a mainstay of evangelical teaching that one should avoid pursuing “worldly” status at the expense of godly virtue.  Consider a bright young evangelical college graduate who is weighing a scholarship at the local state law school against a non-scholarship admission to a top ten school.  She balances her desire for a more prestigious degree against her desire to avoid debt and stay close to friends, family, and church.  It would not be surprising to find that, compared to her peers from other traditions, she is more likely to decide that the prestige value of the degree does not merit foregoing the scholarship to the state school.

5.      Alienation from the legal profession

Finally, I wonder to what extent the phenomenon of low evangelical representation at elite law schools is just part of a wider phenomenon of evangelical alienation from the legal profession more generally.  Are eligible evangelicals disproportionately not enrolling in law schools of any variety and opting instead for other sorts of careers?  I don’t know the answer, but it would not be surprising to learn that evangelicals have disproportionately not pursued legal careers because of a variety of attitudes, perspectives, or biases.  Just to throw out a few possibilities:  “practicing law requires unethical compromises;” “law is the province of liberals;” “trial lawyers are ruining America.”

My intuition is that each of these five stories has something to do with it, although I’m unsure how much weight to put on each.  I’m also pretty sure that there’s a lot more to the story, and would welcome reader comments with other perspectives.

I’ve posted some follow-up thoughts on whether it matters that evangelicals are underrepresented here.

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Two Syrian Bishops Kidnapped

Posted on April 25, 2013 by | Leave a comment

A few days ago, I wrote about the persecution of Coptic Christians in Egypt and the failure of many  in the West to recognize it for what it is. The Arab Spring has made the Copts’ situation even more unsafe than it used to be. The Muslim Brotherhood is even less concerned with protecting Copts from violence than the Mubarak regime was.

A similar pattern may be unfolding in Syria. On Monday, two bishops from Aleppo–Bishop Paul Yazigi of the Antiochian Orthodox Church and Bishop John Ibrahim of the Syriac Orthodox Church–were kidnapped at gunpoint near the Turkish border.  (The two churches, one “Eastern” and the other “Oriental” Orthodox, are not full communion, but their relationship in Syria is very close). Some reports say the kidnappers were Chechen fighters working with the Syrian opposition, though the opposition denies involvement. At this writing, the bishops’ location and condition are unknown; early reports of their release, credited to an Antiochian bishop named “Tony” who turned out to be non-existent, were false. The kidnappers murdered the deacon who was serving as the bishops’ driver.

It’s certainly true that Muslims  in Syria are suffering as well. Only yesterday, the minaret of the famous Umayyad mosque in Aleppo, dating from the 12th Century, was destroyed. But Christians are particularly vulnerable and are often caught in the crossfire. Although they have tried to remain neutral, they are associated with the Assad regime; they are suspected by the opposition, especially by Islamist elements. Plus, Christians have connections outside Syria that make it possible for them to emigrate. In a way, this fact makes Christians’ situation more precarious. Islamists reason that,  if pushed enough, Christians will simply leave the country. So why not push them?

The kidnapping of two senior church figures is obviously meant to send a message to Christians: your position here is not secure. If revolution develops in Syria the way it has in Egypt, the country’s Christians have much to fear.

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Gay Wedding Cakes and Liberalism

Posted on April 22, 2013 by | 7 Comments

Over the past several years, there have been a number of reported incidents in the U.S. where a bakery has refused to make a wedding cake for a same-sex wedding. In the latest case, a bakery in Gresham, Oregon refused to bake a cake for a wedding between two women, citing religious objections.  One of the aggrieved fiancées has filed a complaint with the state attorney general’s office, which is now investigating whether the bakery violated an Oregon statute prohibiting discrimination in public accommodations.

This incident illustrates a wider phenomenon—unwillingness to pursue liberal values when it comes to the politics of sexual orientation.  By liberalism, I mean the strain of European political philosophy that arose in the eighteenth and nineteenth centuries partly as a reaction to the devastating religious wars of the sixteenth and seventeenth century, most particularly the Thirty Years’ War that killed eight million people in central Europe.  Liberals like John Locke, Adam Smith, David Hume, and John Stuart Mill stressed individual rights, limited government, and freedoms of speech, press, religion, contract, and property as antidotes to such bloodshed.  They aimed to allow people with fundamentally different world views to contribute jointly to the projects of government, order, and civil society with minimum friction.  Liberalism is the philosophy at the heart of the enduring American constitutional order.

Alas, liberalism is losing out in the culture wars.  The gay wedding cakes battles are representative of a wider disease that infects people in both camps—invoking the power of government to endorse and enforce one’s world view on matters of sexuality and identity.  Rather than just saying, “I’ll take my business elsewhere,” the impulse is to call the attorney general’s office in support of one’s position, as though law and politics were the appropriate fora for deciding the morality of sexual identity and practice.

The predominant forces in both camps are pushing anti-liberal agendas.  In 2004, the Virginia Legislature passed a statute invalidating private contracts between gay people if they replicated the incidences of marriage.  Conservatives continue to resist political settlements on same-sex marriage that would shift marriage decisions from the state to individuals and private communities.  On the other side, progressives are fighting to enshrine their views in marriage and antidiscrimination laws and school curricula.  In the Chik-fil-A flap last summer, progressive politicians around the country threatened zoning prohibitions or other deployments of state power to fight the forces of “hatred and intolerance.”

Where are the liberals?  Where are the people willing to say: “As much as possible, let’s not decide these questions in the arena of the state.  Let’s let them play out in families, churches, religious communities, social networks, friendships, businesses, and private associations.  Let’s resist the impulse to make these kinds of divisive moral and religious questions political questions.  Let’s not fight another Thirty Years’ War.”

Let me try to preempt some likely objections with two concluding observations.

First, a liberal disposition cannot be confined to circumstances where one disapproves of someone else’s conduct but it causes no harm to others—because that’s an empty set.  It’s child’s play for lawyers, philosophers, and economists  to demonstrate that almost anything one person does affects other people.  When the baker refuses to make the wedding cake, it imposes real distress, humiliation, and inconvenience on the person requesting the cake.  Conversely, having to make the cake would impose real offense and moral indignity on the baker.  Liberalism doesn’t depend on a view that one of the parties really isn’t hurt, any more than free speech depends on a view that words can never be hurtful.  Liberalism is a disposition that says “the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.”

Second, to espouse liberalism isn’t to pretend that the state never has to make political judgments on issues of sexual orientation.  Since the state runs the military, it must decide whether gay people can serve in the armed forces.  Since the state regulates adoptions, it must decide whether gay people can adopt.  And there are of course other examples.  But the fact that it is sometimes unavoidable for the state to wade into these thorny issues does not justify the state wading in when it doesn’t have to.  The great project of liberalism is to strive continually for resolutions that don’t involve the state deciding divisive issues of  meaning and morality that require choosing between contending world views.  This isn’t always possible, but it’s possible much more of the time than it happens.

Calling all liberals . . .

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Poll: One-Third of Americans Would Make Christianity the Nation’s Official Religion

Posted on April 8, 2013 by | 2 Comments

It’s hard to know what to make of these results, but a recent Huffington Post/YouGov survey reveals that roughly one-third of Americans would favor amending the Constitution to make Christianity the nation’s official religion. A similar percentage would favor making Christianity the official religion of their own state.

As Walter Russell Mead notes, there’s a lot of ambiguity here. What would it mean for “Christianity” to be the “official religion”? Given the very strong non-denominationalism in American religious life, I have to assume  respondents envisioned something like “Christianity-in-General,” or “Mere Christianity,” rather than any specific Christian communion. As to “official religion,” I doubt respondents had in mind a thoroughgoing establishment in which the state pays clergy salaries out of tax revenues. Most probably, respondents were thinking of mild endorsements of the sort traditional in American life. “In God We Trust,” for example.

One intriguing interpretation of the poll appears in the Huffington Post article itself. By calling for an official religion, respondents may simply be expressing frustration with what they see as an anti-religious theme in American public life. Saying one supports an “official religion” may be way to manifest one’s sense that America has gone too far in erasing its Christian heritage from public life:

The relatively high level of support for establishing Christianity as a state religion may be reflective of dissatisfaction with the current balance of religion and politics. Respondents to the poll were more likely to say that the U.S. has gone too far in keeping religion and government separate than they were to say religion and government are too mixed, by a 37-29 percent margin. Only 17 percent said that the country has struck a good balance in terms of the separation of church and state.

In other words, respondents don’t want a Church of America. They just want the Easter Bunny.

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Enforcing the “Jewish Prenup”

Posted on March 29, 2013 by | Leave a comment

Thanks to Mark for the invitation back to the CLR Forum for a guest post.  Yesterday, a couple of law blogs (see here and here) picked up a story in the Jewish Daily Forward about an important Connecticut state court decision that enforced what is often referred to as the “Jewish Prenup” (“In Victory for ‘Chained’ Wives, Court Upholds Orthodox Prenuptial Agreement“).  I’ve written a bit about the decision previously, but wanted to explain a little bit more about what is at stake.  [UPDATE: Here's a copy of the decision Light v. Light reprinted from Westlaw with permission of Thomson Reuters.  If you wish to check the currency of this case by using KeyCite on Westlaw, then you may do so by visiting www.westlaw.com.”]

Under Jewish law, only a husband can initiate a Jewish divorce.  Moreover, if a husband is “coerced” into granting a divorce, then the divorce is considered invalid.  This combination of rules has caused some significant problems for Orthodox Jewish women seeking to end their marriage where their husband refuses to grant them a Jewish divorce document.  In order to address this growing problem, a number of Jewish organizations – most prominently, the Beth Din of America – created a prenuptial agreement, which is now signed by a growing number of Orthodox Jewish couples.  This agreement’s most salient feature is a provision where the husband agrees to provide his wife with financial support in the amount of $150 per day “so long as the two . . . remain married according to Jewish law.”  The purpose of this provision is to walk a fine line between placing financial pressure on the husband to ensure he grants the divorce without placing so much pressure so as to render any subsequent divorce granted by the husband “coerced” (for a recent article exploring various considerations on this and related points, see here starting on page 12).

It was this support provision that was enforced by the Connecticut Superior Court in its recent decision in the case of Light v. Light.  In so doing, the court considered the husband’s claim that enforcing the prenuptial agreement would violate the First Amendment by requiring the court to “consider[] religious doctrines and ceremonies.”  However, the court rejected this argument, holding that the prenuptial agreement could be interpreted and enforced in accordance with “neutral principles of law”:

In the present case, a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.

It is important to note here that the prenuptial agreement does not require the husband to grant his wife a Jewish divorce.  Indeed, courts have differed as to whether a contract in which a husband agrees to grant his wife a religious divorce is enforceable; the issue raised in such cases is whether or not civil enforcement of a contract that requires a husband to grant a religious divorce violates the religion clauses of the First Amendment (for contrasting views, see here and here).  By contrast, the prenuptial agreement simply requires the husband to make support payments, thereby avoiding these potential First Amendment problems.

This decision – which is in my view both correctly decided and well reasoned – is likely to have significant impact on any future cases involving this increasingly popular prenuptial agreement.  The “Jewish prenup” has done an impressive job of avoiding a variety of both constitutional objections and Jewish Law conundrums.  And as a result, this prenuptial agreement is likely to go quite far in protecting Orthodox Jewish women by providing them with the financial leverage necessary to ensure that they receive their religious divorces from otherwise reluctant husbands.

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Around the Web This Week

Posted on March 15, 2013 by | Leave a comment

Here are some interesting law and religion stories from around the web this week:

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