Religious Freedom in America

I have been reading this collection on “Religious Freedom in America,” edited by Allen Hertzke. The authors cover the subject from a number of perspectives, including Thomas Kidd and Vincent Philip Muñoz with perspectives on the Founding, and important contributions from the Sikh and Muslim traditions, which are not often heard in these debates.

There is also an empirical essay of particular interest for those trying to figure out the current state of religious freedom. America post-Smith has a welter of “mini-RFRAs” establishing balancing tests meant to offer more protection to religious exercise than a “rational basis” standard. The results are not encouraging. Professors Robert R. Martin and Roger Finke collected thousands of religious liberty cases and coded them according to various metrics. One metric was how often courts invoked a “compelling” government interest in considering a religious liberty claim. In an earlier post, I had noted the relative lack of detail in judicial opinions concerning what constitutes a “compelling” interest in federal law that, along with the least restrictive means to meet that interest, would overcome a substantial burden on religious freedom.   The authors provide some answers from their review of state court decisions. Their review indicated that states have articulated at least some compelling interests; these include “completing a trial without a three-day delay in deliberations, maintaining a zoning district as a single-family residential zone and … public safety and ‘aesthetics’”.  Among other things, they conclude that although the United States remains a stronghold for religious liberty by comparison with other countries, religious freedom prevails in less than half the cases, and that “free exercise claimants remain at a stark disadvantage in the face of generally applicable, religiously neutral laws.”

From the results of this study, it seems the legacy of Smith has worked all too well. Despite RFRA and state-level initiatives, the state under cover of “neutral” laws, still wins most of the time. And there is much reason to believe many of these neutral laws are not neutral at all, especially when we consider initiatives like the contraceptive mandate. But this study does give the lie to the arguments of some secularists that religion is too powerful in our society. The contrary seems to be increasingly the case.

Roberts, “Voodoo and Power”

In November, the Louisiana State University Press will release “Voodoo and Power: The Politics of Religion in New Orleans, 1881-1940,” by Kodi A. Roberts (Louisiana State University).  The publisher’s description follows:

The racialized and exoticized cult of Voodoo occupies a central place in the popular image of the Crescent City. But as Kodi A. Roberts argues in Voodoo and Power, the religion was not a monolithic tradition handed down from African ancestors to their American-born descendants. Instead, a much more complicated patchwork of influences created New Orleans Voodoo, allowing it to move across boundaries of race, class, and gender. By employing late nineteenth and early twentieth-century first-hand accounts of Voodoo practitioners and their rituals, Roberts provides a nuanced understanding of who practiced Voodoo and why.

Voodoo in New Orleans, a mélange of religion, entrepreneurship, and business networks, stretched across the color line in intriguing ways. Roberts’s analysis demonstrates that what united professional practitioners, or “workers,” with those who sought their services was not a racially uniform folk culture, but rather the power and influence that Voodoo promised. Recognizing that social immobility proved a common barrier for their patrons, workers claimed that their rituals could overcome racial and gendered disadvantages and create new opportunities for their clients.

Voodoo rituals and institutions also drew inspiration from the surrounding milieu, including the privations of the Great Depression, the city’s complex racial history, and the free-market economy. Money, employment, and business became central concerns for the religion’s practitioners: to validate their work, some began operating from recently organized “Spiritual Churches,” entities that were tax exempt and thus legitimate in the eyes of the state of Louisiana. Practitioners even leveraged local figures like the mythohistoric Marie Laveau for spiritual purposes and entrepreneurial gain. All the while, they contributed to the cultural legacy that fueled New Orleans’s tourist industry and drew visitors and their money to the Crescent City.

Around the Web this Week

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

Accetti, “Relativism and Religion”

In November, Columbia University Press will release “Relativism and Religion: Why Democratic Societies Do Not Need Moral Absolutes” by Carlo Invernizzi Accetti (City College, City University of New York). The publisher’s description follows:

Moral relativism is deeply troubling for those who believe that, without a set of moral absolutes, democratic societies will devolve into tyranny or totalitarianism. Engaging directly with this claim, Carlo Invernizzi Accetti traces the roots of contemporary anti-relativist fears to the antimodern rhetoric of the Catholic Church, and then rescues a form of philosophical relativism for modern, pluralist societies, arguing that this standpoint provides the firmest foundation for an allegiance to democracy.

In its dual analysis of the relationship between religion and politics and the implications of philosophical relativism for democratic theory, this book makes a far-ranging contribution to contemporary debates over the revival of religion in politics and the conceptual grounds for a commitment to democracy. It conducts the first comprehensive genealogy of anti-relativist discourse and reclaims for English-speaking readers the overlooked work of political theorists such as Hans Kelsen and Norberto Bobbio, who had articulated the bond between philosophical relativism and democracy. By engaging with attempts to replace the religious foundation of democratic values with a neo-Kantian conception of reason, this book also offers a powerful case for relativism as the strongest basis for a civic ethos that integrates different perspectives into democratic politics.

“The ‘Alawis of Syria: War, Faith and Politics in the Levant” (Kerr & Larkin, eds.)

In November, Oxford University Press will release “The ‘Alawis of Syria: War, Faith and Politics in the Levant” edited by Michael Kerr (King’s College London) and Craig Larkin (King’s College London). The publisher’s description follows:

Throughout the turbulent history of the Levant the ‘Alawis – a secretive, resilient and ancient Muslim sect – have aroused suspicion and animosity, including accusations of religious heresy. More recently they have been tarred with the brush of political separatism and complicity in the excesses of the Assad regime, claims that have gained greater traction since the onset of the Syrian uprising and subsequent devastating civil war.

The contributors to this book provide a complex and nuanced reading of Syria’s ‘Alawi communities -from loyalist gangs (Shabiha) to outspoken critics of the regime. Drawing upon wide-ranging research that examines the historic, political and social dynamics of the ‘Alawi and the Syrian state, the current tensions are scrutinised and fresh insights offered. Among the themes addressed are religious practice, social identities, and relations to the Ba’ath party, the Syrian state and the military apparatus. The analysis also extends to Lebanon with a focus on the embattled ‘Alawi community of Jabal Mohsen in Tripoli and state relations with Hizballah amid the current crisis.

Should Catholic Hospitals be Catholic?

This is the kind of essay that we will see more of. Jerry Coyne argues that religious liberty has no place in hospitals, “even Catholic ones.” The piece nicely combines bigotry in the name of science with an innocence of what actually would happen if he were heeded. It is somewhat shameful that The New Republic would publish such a tendentious piece, but then again, that magazine is not what it once was.

Coyne makes two points. First, he argues that the mere prevalence of Catholic hospital networks means they should have to waive objection to treatments they find morally objectionable – in Coyne’s tragic real life example, that of a woman who needs a caesarean and a tubal ligation. The Catholic hospital agreed to perform the first but not the second (leave aside for a moment whether this is congruent with Catholic teaching, and it is unclear whether the tubal ligation was necessary at the time).

Second, Coyne basically says Catholic institutions can’t be Catholic:

One could [love that could! – ed.] argue that yes, individual doctors who are pious Catholics should not be compelled to perform birth control, even when necessary to save a woman’s life. But, as noted above, the Church Amendment also stipulates that a Catholic hospital itself cannot be forced to perform practices [sic] sterilizations or abortions. Even if its doctors aren’t Catholic, then, and are willing to do the ligation, they must abide by the law and tell Mann to go elsewhere.

Coyne ignores a couple of key points. First, the reason why rights are considered immune from state interference is precisely to avoid the lazy utilitarian argument Coyne sets out. It doesn’t matter if there are many religious institutions or a few, the state cannot abrogate religious freedom in the name of secular goals.

The second point Coyne tries to make is simply unrealistic. If Catholic hospitals allowed non-Catholic doctors to perform procedures contrary to Catholic doctrine, how would a patient even know? Would the hospital be required to keep such doctors on staff, just in case? How about nurses or other employees; would there have to be a quota for them as well? This is another reason why institutional affiliation and exercise of corporate rights makes sense; it eliminates confusion and burden in the exercise of a right. And as Hobby Lobby shows, there is nothing unconstitutional about an institution acting on its beliefs.

Smith, “Religious Persecution and Political Order in the United States”

In October, Cambridge University Press will release “Religious Persecution and Political Order in the United States,” by David T. Smith (University of Sydney). The publisher’s description follows:

Religious freedom is a foundational value of the United States, but not all religious minorities have been shielded from religious persecution in America. This book examines why the state has acted to protect some religious minorities while allowing others to be persecuted or actively persecuting them. It details the persecution experiences of Mormons, Jehovah’s Witnesses, Catholics, Jews, the Nation of Islam, and orthodox Muslims in America, developing a theory for why the state intervened to protect some but not others. The book argues that the state will persecute religious minorities if state actors consider them a threat to political order, but they will protect religious minorities if they believe persecution is a greater threat to political order. From the beginning of the republic to after 9/11, religious freedom in America has depended on the state’s perception of political threats.

Kleidosty, “The Concert of Civilizations”

In July, Ashgate released “The Concert of Civilizations: The Common Roots of Western and Islamic Constitutionalism,” by Jeremy Kleidosty (University of Jyväskylä, Finland).  The publisher’s description follows:

Are Western and Islamic political and constitutional ideas truly predestined for civilizational clash? In order to understand this controversy The Concert of Civilizations begins by deriving and redefining a definition of constitutionalism that is suitable for comparative, cross-cultural analysis. The rule of law, reflection of national character, and the clear delineation and limitation of governmental power are used as lenses through which thinkers like Cicero, Montesquieu, and the authors of The Federalist Papers can be read alongside al-Farabi, ibn Khaldun, and the Ottoman Tanzimat decrees. Bridging the civilizational divide is a chapter comparing the Magna Carta with Muhammad’sConstitution of Medina, as both documents can be seen as foundational within their traditions. For the first time in political theory, this text also provides a sustained, detailed analysis of Khayr al-Din al-Tunisi’s book The Surest Path, which explains his fusion of Muslim and Western ideas in his writing of Tunisia’s first modern constitution, which is also the first constitution for a majority-Muslim state. Finally, the book discusses the Arab Spring through a brief overview of the revolutions in Egypt, Libya, and Tunisia, and offers some early thoughts about Tunisia’s uniquely successful revolution.

Marsden, “The Crisis of Religious Toleration in Imperial Russia”

This month, Oxford University Press releases “The Crisis of Religious Toleration in Imperial Russia: Bibikov’s System for the Old Believers, 1841-1855” by Thomas Marsden (University College London). The publisher’s description follows:

This book is about an unprecedented attempt by the government of Russia’s Tsar Nicholas I (1825-1855) to eradicate what was seen as one of the greatest threats to its political security: the religious dissent of the Old Believers. The Old Believers had long been reviled by the ruling Orthodox Church, for they were the largest group of Russian dissenters and claimed to be the guardians of true Orthodoxy; however, their industrious communities and strict morality meant that the civil authorities often regarded them favourably. This changed in the 1840s and 1850s when a series of remarkable cases demonstrated that the existing restrictions upon the dissenters’ religious freedoms could not suppress their capacity for independent organisation. Finding itself at a crossroads between granting full toleration, or returning to the fierce persecution of earlier centuries, the tsarist government increasingly inclined towards the latter course, culminating in a top secret ‘system’ introduced in 1853 by the Minister of Internal Affairs Dmitrii Bibikov.

The operation of this system was the high point of religious persecution in the last 150 years of the tsarist regime: it dissolved the Old Believers’ religious gatherings, denied them civil rights, and repressed their leading figures as state criminals. It also constituted an extraordinary experiment in government, instituted to deal with a temporary emergency. Paradoxically the architects of this system were not churchmen or reactionaries, but representatives of the most progressive factions of Nicholas’s bureaucracy. Their abandonment of religious toleration on grounds of political intolerability reflected their nationalist concerns for the future development of a rapidly changing Russia. The system lasted only until Nicholas’s death in 1855; however, the story of its origins, operation, and collapse, told for the first time in this study, throws new light on the religious and political identity of the autocratic regime and on the complexity of the problems it faced.

Ansari, “Islam and Nationalism in India”

In November, Routledge will release “Islam and Nationalism in India: South Indian Contexts” by M.T. Ansari (University of Hyderabad, India). The publisher’s description follows:

Islam in India, as elsewhere, continues to be seen as a remainder in its refusal to “conform” to national and international secular-modern norms. Such a general perception has also had a tremendous impact on the Muslims of the Indian subcontinent, who as individuals and communities have been shaped and transformed over centuries of socio-political and historical processes, by eroding their world-view and steadily erasing their life-worlds.

This book traces the spectral presence of Islam across narratives to note that difference and diversity, demographic as well as cultural, can be espoused rather than excised or exorcized. Focusing on Malabar – home to the Mappila Muslim community in Kerala, South India – and drawing mostly on Malayalam sources, the author investigates the question of Islam from various angles by constituting an archive comprising popular, administrative, academic, and literary discourses. The author contends that an uncritical insistence on unity has led to a formation in which “minor” subjects embody an excess of identity, in contrast to the Hindu-citizen whose identity seemingly coincides with the national. This has led to Muslims being the source of a deep-seated anxiety for secular nationalism and the targets of a resurgent Hindutva in that they expose the fault-lines of a geographically and socio-culturally unified nation.

An interdisciplinary study of Islam in India from the South Indian context, this book will be of interest to scholars of modern Indian history, political science, literary and cultural studies, and Islamic studies.