The Synod on the Family and the Developing World

Opening_Session_of_the_Extraordinary_Assembly_of_the_Synod_of_Bishops_at_the_Vatican_on_Oct_6_2014_Credit_Mazur_catholicnewsorguk_CC_BY_NC_SA_20_3_CNA_10_7_14

First World Problems?

Not long after his election, the new Pope explained why he had taken the name “Francis”: “Ah, how I would like a church,” he said, “that is poor and is for the poor.” It was refreshing: the Pope was going to change the basic terms of the conversation between the Church and the world. Instead of waging a grinding “culture war” against a secular West, the Church would instead speak to the most urgent concerns of the global East and South. The first Pope to come from beyond Europe and the Mediterranean basin promised to be the champion of those who lived in the parts of the earth where hunger, injustice and persecution abounded. Places like the Philippines, Mexico, and Nigeria had already become the true center of gravity of a global Church, displacing Quebec, Chicago, Milan and Vienna. The new Pope would speak for the populations of the emerging world – for their suffering, their desperation, their resilience, their energy, their sense of hope. The “North/South” polarity would supplant the “Left/Right” one. The Church would make the pivot to poverty. In making that turn, it would address the West too – but by awakening it from the deadly self-absorption of the affluent.

So when one learns that the Synod of Catholic cardinals and bishops summoned by the same Pope has returned the conversation to the culture wars of the West – though with unmistakable overtones of capitulation on many of the bishops’ part — it is, to say no more, a disappointment. Try as it may, the Church under Francis seems to be unable to resist scratching the sores of Western sexuality. The consuming obsessions of the West, now in the terminal phases of the sexual and cultural revolutions that have swept over it for more than half a century, are dominating the Church’s agenda once again. At the Pope’s insistence, the bishops did a reset, plunging the Church into renewed debate over divorce and homosexuality and cutting short the conversation that the Pope had earlier invited over famine, persecution and want. With Islamist terrorist groups like Boko Haram recently murdering 2500 Catholics in one Nigerian diocese alone, and with Christian children being crucified or cut in half by ISIS, you might think that the world’s bishops would have more pressing things on their mind than the compatibility of same-sex unions with Church teaching. You would, of course, be wrong.

Indeed, even considering “family” issues alone, the non-Western Church was short-changed: how much attention was given to the question of inter-faith marriages, despite its being a major concern for the Church in India? In the Philippines, many marriages break up because poverty forces a spouse or parent to migrate overseas in search of employment, leaving home, spouse and children behind. Philippine Cardinal Luis Tagle noted this problem, saying that poverty “goes right at the heart of the family” in his country ; but how much attention did this issue get?

What is more, the organizers of the Synod openly expressed their indifference to – if not contempt for – the opinions of the leaders of the non-Western Church. They spoke as if the opposition of the African bishops to their “modernizing” program could stem only from irrational hatred and prejudice. What the Africans needed, they seemed to be saying, was a good, stiff dose of Richard Posner’s writings. In the controversy over the initial draft of the Synod’s statement, Cardinal Walter Kasper, an octogenarian German theologian and a favorite of the Pope’s, infamously said:

Africa is totally different from the West. Also Asian and Muslim countries, they’re very different, especially about gays. You can’t speak about this with Africans and people of Muslim countries. It’s not possible. It’s a taboo. For us, we say we ought not to discriminate, we don’t want to discriminate in certain respects.

Kasper later denied having made those revealing remarks – a denial that was then proven to be false. In any case, the remarks hardly seemed out of character for the Cardinal. In an interview with the German magazine Focus published under the heading “Third World Land,” Kasper was reported to have said, “When you land at Heathrow you think at times you have landed in a Third World country.” The German Cardinal obviously notices different things when he is at the airport from what Cardinal Tagle does. The Philippine prelate spoke of his anguish in watching Filipino mothers at airports forced to part from their children because their poverty is so desperate that they must leave their families and search for work abroad.

Not Just Cardinal Kasper

Even if Cardinal Kasper’s statement were merely condescension on the part of the passenger with the first-class cabin towards the passengers in steerage, it would be bad enough. But Kasper and those like him simply did not seem to understand the position. Perhaps the Africans and Asians are not just squinting narrowly at the issue of homosexuality, but rather looking at the state of Western culture as a whole? And perhaps they do not like what they see? Perhaps the cultural exports of the secular West – its current practices regarding marriage, abortion, childbirth, the family, the relations between the sexes – are no more wanted in Africa and Asia than the West’s toxic wastes and sewage effluents? (New York Cardinal Dolan’s wonderful defense of the “prophetic” African Church effectively made these points. )

But the problem with the Synod went far beyond the tactlessness and incomprehension of elderly European churchmen. Apparently at the Pope’s insistence, the Synod’s final report included three controversial articles that had received the approval of a Synod majority, but not the supermajority required for consensus. The final report will now go to the Church throughout the world for discussion and debate before the Synod reconvenes. You can be sure that the media coverage of the debate in this intervening period will focus overwhelmingly on the articles that the Pope reinstated. Cui bono? In their effort to get the conversation back on the familiar tracks of the Western culture wars, the Pope and his bishops are doing serious harm to millions of faithful Catholics trying to live out the Gospel in hostile and often dangerous conditions in the emerging world.

My former student, Andrew Ratelle, makes the point forcefully:

By upholding the nuclear family, the Church made what was perhaps the most important social investment in history. People in the poorer, more pagan regions of the world where polygamy, polyandry, arranged and child marriages were common, now had a place to look for support when it came to building a life that was most beneficial for themselves and their children. By weakening this support, or at the very least dispersing it to include more “diverse” arrangements, these bishops have weakened the very shield from which the nuclear family has received so much protection. Even in our own country, where “diverse” familial arrangements have almost become synonymous with urban poverty and crime (at least for those who have no gilded safety net to fall into), where should families look to now, since the Church has seen fit to dilute the medicine they have thrived on for so long?

Church leaders in the developing world understand this perfectly well. South African Cardinal Wilfrid Napier, for instance, wondered how he could deny communion to an African man living in polygamy in accordance with local culture and tradition, if he had to administer the sacrament to a divorced man married to his second wife? “Successive” polygamy, Napier pointed out, is hardly distinguishable from “simultaneous” polygamy.

Pope Francis was right (at first): it really is time to change the conversation. The global Church is not the parochial Western Church; the Church of the poor and the marginal is not the affluent, greying Church of Western Europe and North America. The Church should not be shadowing the West’s cultural trajectory all the way downwards. The future of the Church lies elsewhere. Ex oriente, lux.

Photo from the Catholic News Agency.

“Politicization of Religion, the Power of State, Nation, and Faith” (Ognjenovic & Jozelic, eds.)

This December, Palgrave Macmillan Press will release “Politicization of Religion, the Power of State, Nation and Faith: The Case of Former Yugoslavia and its Successor States” edited by Gorana Ognjenovic and Jasna Jozelic (University of Oslo).  The publisher’s description follows:

Politicization of ReligionThere is a great difference between a war being categorized as “religious” and religion being politicized for the purpose of achieving a political goal. However it can at times be hard to tell difference between the two. It can be especially hard to do so when the difference between “pretend to be” and “is” is obscured almost to a point beyond recognition. Volume one analyzes the mass production and use of counterfeit religious symbolism used for political purposes. Volume two of this book focuses more on the actual practical application of the symbolism within the context of state, nation and faith: the use of counterfeit religious symbolism to blur the essential distinction between “what is a real danger to a nation” and “what is not.”

Vaitheespara, “Religion and Nation in South India”

This December, Oxford University Press will release “Religion and Nation in South India: Maraimalai Adigal, the Neo-Saivite Movement and Tamil Nationalism, 1876-1950” by Ravi Vaitheespara (University of Manitoba).  The publisher’s description follows:

While most scholarship on nationalism have focused on the recent secular foundations of nationalism, this work examines the religious roots of nationalism and specifically the (Neo) Shaivite roots of Tamil nationalism and the Dravidian movement. The book traces the anti-Aryan, anti-Brahmin character of Tamil nationalism and the Dravidian movement to the Tamil Neo-Shaivite movement that emerged against the background of Neo-Vedantic and Vaishnavite revivalist current that accompanied the rise of pan-Indian nationalism. Drawing from a range of influences including European Orientalist and Missionary critiques of the philosophical idealism found in Brahmanism and Neo-Vedantic thought, the Neo-Shaivite articulation of non-Brahmin Tamil nationalism endowed Tamil nationalism with a critical spirit and critical grammar that not only rejected such idealism—but also celebrated the more firmly grounded and sensuous Tamil tradition celebrated in ancient Tamil and Bhakti poetry. The book presents these insights and arguments through a critical exploration of the life and work of Maraimalai Adigal (1876-1950) who not only played a central role in consolidating the intellectual and cultural foundation for non-Brahmin Tamil nationalism but whose life intersected with many of the pioneer figures in the Tamil nationalist and Dravidian movement.

Conference at EUI (Florence) on The Roberts Court and the Protection of Religious Freedom in the United States

I am delighted to be participating this Wednesday in a conference at the European University Institute in Florence, Italy, on The Roberts Court and the Protection of Religious Freedom in the United States, organized by Center friends Olivier Roy and Pasquale Annicchino. Regretfully, my intervention will be virtual rather than in person. Here’s the description of the conference (in Italian) and the program:

Contesto 

John Glover Roberts Jr. è stato nominato Chief Justice della Corte Suprema degli Stati Uniti il 22 settembre 2005, nomina confermata una settimana dopo dal Senato con 78 voti favorevoli e 22 contrari. In questi 9 anni si sono succedute numerose decisioni di assoluto rilievo del massimo organo giurisdizionale statunitense. Tra queste alcune hanno portato a definitivo compimento una nuova interpretazione ed una differente applicazione delle due clausole del primo emendamento costituzionale che si occupano di libertà religiosa: la Free Exercise Clause e la Establishment Clause. Dopo aver inquadrato nel contesto storico e politico la presidenza Roberts, questo workshop intende esaminare le principali pronunce della Corte Suprema sulla libertà religiosa.

Ogni relatore sarà chiamato a commentare una pronuncia e, mediante un approccio di “law in context” a darne una interpretazione nell’ambito del più ampio sviluppo della giurisprudenza della Corte.

L’obiettivo è quello di realizzare un volume collettivo (in italiano) che possa offrire agli studiosi nuovo materiale di riflessione e studio su un argomento che tocca gli interessi scientifici sia dei costituzionalisti che dei cultori delle materie ecclesiasticistiche.

Funded by European Research Council 7th Framework Programme

Programma 

12.00-12.05 Introduzione

12.05-13.00 La Corte Roberts e la tutela della libertà religiosa 

Fred Gedicks | BYU, USA

Marc De Girolami | St John’s University, USA (intervento via Skype)

13.00-14.00 Pranzo di lavoro 

14.00-15.30 Discussione casi – I sessione 

Valentina Fiorillo | Università di Roma “La Sapienza”, Italia

Adelaide Madera | Università di Messina, Italia

Pasquale Annicchino | EUI, Italia

Discussione generale

15.30-15.45 Pausa caffé 

15.45-17.00 Discussione casi –II sessione 

Marco Ventura | KU Leuven, Belgio

Susanna Mancini | Università di Bologna, Italia

Diletta Tega | Università di Bologna e Corte costituzionale italiana, Italia

Discussione generale

17.00-18.15 Discussione finale

“The Oxford Handbook of American Islam” (Haddad & Smith, eds.)

Next month, Oxford University Press releases “The Oxford Handbook of American Islam”  edited by Yvonne Y. Haddad (Georgetown University) and Jane I. Smith (Harvard Divinity School, retired). The publisher’s description follows:

Islam has been part of the increasingly complex American religious scene for  well over a century, and was brought into more dramatic focus by the attacks of September 11, 2001. American Islam is practiced by a unique blend of immigrants and American-born Muslims. The immigrants have come from all corners of the world; they include rich and poor, well-educated and illiterate, those from upper and lower classes as well as economic and political refugees. The community’s diversity has been enhanced by the conversion of African Americans, Latina/os, and others, making it the most heterogeneous Muslim community in the world.

With an up-to-the-minute analysis by thirty of the top scholars in the field, this handbook covers the growth of Islam in America from the earliest Muslims to set foot on American soil to the current wave of Islamophobia. Topics covered include the development of African American Islam; pre- and post-WWII immigrants; Sunni, Shi`ite, sectarian and Sufi movements in America; the role and status of women, marriage, and family; and the Americanization of Islamic culture.

Throughout these chapters the contributors explore the meaning of religious identity in the context of race, ethnicity, gender, and politics, both within the American Islamic community and in relation to international Islam.

 

“Choreographies of Shared Sacred Sites: Religion, Politics, and Conflict Resolution” (Barkan & Barkey, eds.)

Next month, Columbia University Press will release “Choreographies of Shared Sacred Sites: Religion, Politics, and Conflict Resolution” edited by Elazar Barkan (Columbia University) and Karen Barkey (Columbia University). The publisher’s description follows:

This anthology explores the dynamics of shared religious sites in Turkey, the Balkans, Palestine/Israel, Cyprus, and Algeria, indicating where local and national stakeholders maneuver between competition and cooperation, coexistence and conflict. Contributors probe the notion of coexistence and the logic that underlies centuries of “sharing,” exploring when and why sharing gets interrupted—or not—by conflict, and the policy consequences.

These essays map the choreographies of shared sacred spaces within the framework of state-society relations, juxtaposing a site’s political and religious features and exploring whether sharing or contestation is primarily religious or politically motivated. While religion and politics are intertwined phenomena, the contributors to this volume understand the category of “religion” and the “political” as devices meant to distinguish between the theological and confessional aspects of religion and the political goals of groups. Their comparative approach better represents the transition in some cases of sites into places of hatred and violence while in other instances they remain noncontroversial. The essays clearly delineate the religious and political factors that contribute to the context and causality of conflict at these sites and draw on history and anthropology to shed light on the often rapid switch from relative tolerance to distress to peace and calm.

Around the Web this Week

Some interesting law and religion news stories from around the web this week:

Hertel, “The Crescent Remembered”

This December, Sussex Academic Press will release “The Crescent Remembered: Islam and Nationalism on the Iberian Peninsula” by Patricia Hertel (University of Basel).  The publisher’s description follows:

The Crescent RememberedContemporary Spain and Portugal share a historical experience as Iberian states which emerged within the context of al-Andalus. These centuries of Muslim presence in the Middle Ages became a contested heritage during the process of modern nation-building with its varied concepts and constructs of national identities. Politicians, historians and intellectuals debated vigorously the question how the Muslim past could be reconciled with the idea of the Catholic nation.

The Crescent Remembered investigates the processes of exclusion and integration of the Islamic past within the national narratives. It analyzes discourses of historiography, Arabic studies, mythology, popular culture and colonial policies towards Muslim populations from the 19th century to the dictatorships of Franco and Salazar in the 20th century. In particular, it explores why, despite apparent historical similarities, in Spain and Portugal entirely different strategies and discourses concerning the Islamic past emerged. In the process, it seeks to shed light on the role of the Iberian Peninsula as a crucial European historical “contact zone” with Islam.

“Politics of Religion and Nationalism” (Requejo & Nagel, eds.)

This December, Routledge Press will release “Politics of Religion and Nationalism: Federalism, Consociationalism and Secession” edited by Ferran Requejo and Klaus-Jürgen Nagel (Universitat Pompeu Fabra, Barcelona).  The publisher’s description follows:

There are numerous examples of how religion and nationalism intertwine. In some cases, a common religion is the fundamental marker of a nation’s identity, whereas in others secular nationalism tries to hold together people of different religious beliefs.

This book examines the link between religion and nationalism in contemporary polities. By exploring case studies on India, Russia, Israel, Canada, Chechnya, Bosnia-Herzegovina, Belgium, Northern Ireland, Scotland, Sri Lanka, Catalonia and the Basque Country, it seeks to understand the relationship between these two key societal forms of diversity and assess the interaction between religious and nationalist perspectives. Expert contributors examine a variety of phenomena, including secular nationalism, secessionism, and polities in which religious pluralism is evolving.

This book will be of interest to students and scholars of political science, religion and politics, nationalism, federalism, secession, political philosophy, racial and ethnic politics and comparative politics.

More Questions on the Significant Harm to Third-Parties Establishment Clause Theory

In my last post on the subject, I wondered why there had not been more discussion on the part of advocates of the Significant Harm to Third-Parties Establishment Clause theory (abbreviated for convenience hereafter as SHTEC) regarding the application of that theory to the prison-beard case, Holt v. Hobbs. As Rick Garnett notes, the application of SHTEC theory to both Hobby Lobby and Holt v. Hobbs was recently addressed by Nelson Tebbe, Micah Schwartzman, and Richard Schragger. I will rapidly pass over the characterizations of the existing doctrine, as Rick discusses some of this and I’ve talked about it before, except to observe that whatever virtues SHTEC theory may have, its status as an “established principle of constitutional law” seems an improbable one. As I have explained before, SHTEC theory represents a major extension of current law. I also read the Hobby Lobby vote breakdown differently. If Justice Kennedy really accepted SHTEC theory, and believed that third-party rights in Hobby Lobby would have been violated by an accommodation for Hobby Lobby, then it is confusing to me that he would have joined the Court’s footnote 37. But he did join it (and of course he also said some very nice things about Justice Ginsburg).

On the application of SHTEC theory to Holt v. Hobbs, and to RLUIPA prison cases generally, I have some additional questions. My principal difficulties are terminological. I am having a hard time understanding what constitutes “significant” or “substantial” harm to “third party interests” and how that standard works in tandem with the RLUIPA standard.

First, the standard of significance seems elusive to me. With a slight tweak of the facts, maybe this becomes clearer. Suppose that the prison had a “No hair on the face or head longer than 1/4 inch” policy. And suppose it had evidence that exactly one person (or two, or five) had hidden a shank or a SIM card in their hair. What is the relationship for SHTEC purposes between frequency of harm and gravity of harm? Are one or two such instances enough to be “significant” because the gravity of the threatened harm is so great? Whatever one may think of the harm to third parties in Hobby Lobby, that harm is less grave than the third party harm I am positing (assuming one can agree that harm to life is graver than harm to access to employer-paid contraception), but of course the number of incidents of harm is greater in Hobby Lobby than in my modified Holt v. Hobbs hypo. SHTEC theory advocates can respond that Holt v. Hobbs didn’t deal with any of that. And so what is really going on is a failure of evidence. That’s fine, but that side-steps the issue. I’m less interested in the particular state of the evidence here than in understanding how SHTEC theory would apply in even a slightly more difficult prison case (surely these would fruitfully multiply after a favorable ruling for the prisoner in Holt v. Hobbs).

Second, I have difficulty with the distinction between third-party harms and government/state harms. Is there such a sharp difference? Or is it in the end all harm of various kinds to the state (that is to say, harms of multiple and varying kinds to the rest of us who are not being accommodated)? It may be some evidence in favor of the latter that there have been no separate SHTEC claims brought in the context of RFRA or RLUIPA actions. Everything has been analyzed pursuant to the statutory standard. Again, that’s because third party harm might be a kind of compelling interest that ultimately constitutes a state interest under RFRA or RLUIPA. Whether it rises to that level will depend on just how severely it burdens third parties (as Caldor put it, those accommodations which “take no account” of third parties are going to be in hot water). But notice what happens if one layers a SHTEC claim on top of the RFRA/RLUIPA compelling interest standard. Now it seems that third party harm claimants are on an equal footing with religious claimants. Religious claimants must allege a substantial burden; third party claimants can then allege a contravening “significant” burden; with the result that the government need not accommodate the religious claimant, and can circumvent its obligations to come forward with a compelling interest, by pointing to the SHTEC theory violation that would result from religious accommodation.

Third, in addition to administrative harms (which were not argued by the state in Holt v. Hobbs), there may be, as I’ve said before, symbolic harms of various kinds at issue (the state didn’t argue these either…but the state did a fabulously poor job of defending this case). Symbolic harms might affect the prison, the inmates, and the rest of us who support, in various ways, the system of criminal justice. As I indicated in my previous post, these are just as much harms to identifiable interests as are financial harms. They might include harms with respect to the equal treatment of prisoners and harms to the state’s interest (that is to say, to our interests, as well as the prisoners’ interests) in imposing discipline and uniformity on prisoners who very much need it. These are true harms. They are part of the purposes and functions of prisons in general. They even implicate certain important functions of punishment, including retributivism and rehabilitation, functions of punishment that Congress itself has recognized as important in the Sentencing Reform Act, among other places. Surely many state legislatures have done something similar in their own penological systems. To my mind, they may indeed be very significant. The egalitarian harms could be resolved in part by leveling up for non-believers, but that leveling up is extremely likely to produce other harms (resentments among those who cannot come up with a reason of “conscience” as well as rising administrative costs as more and more prisoners seek exemptions of various kinds).

Fourth, a final point of puzzlement: why is there no discussion in SHTEC theory of different standards of deference in a case like Holt as opposed to a case like Hobby Lobby. Under existing law, there is no deference at all in the latter (the standard is one of strict scrutiny), while there is great deference to the state in the former. Indeed, one of the primary points of uncertainty in the oral argument in Holt was how to reconcile strict scrutiny with this substantial deference to prison administrators (cf. Grutter v. Bollinger). But I have not seen this difference in the amount of deference accorded to the state discussed by SHTEC theorists (I may well have missed it). Does SHTEC theory incorporate a deferential posture with respect to prisons (and the military, and perhaps certain other institutions)? It certainly could, and it seems to me that such deference would take the form of giving a great deal more latitude to the state (or to third parties) on the issue of what is “substantial” or “significant” harm. Perhaps Arkansas still loses in Holt v. Hobbs. But it shouldn’t take much more at all for it to win.