Tag Archives: Constitution

Waltman, “Congress, the Supreme Court, and Religious Liberty”

This June, Palgrave MacMillan will publish Congress, the Supreme Court, and Religious Liberty: The Case of City of Boerne v. Flores by Jerold Waltman (Baylor University).  The publisher’s description follows.Waltman

In the landmark case City of Boerne v. Flores, the Supreme Court struck down a major federal statute – the Religious Freedom Restoration Act of 1993. This decision raised questions not only about religious freedom in America, but also about federalism and separation of powers. Using the narrative framework of a tense dispute that divided a small Texas town, Waltman offers the first book-length analysis of the constitutional jurisprudence involved in the passage of the act. Congress, the Supreme Court, and Religious Liberty shows how this case and others like it stimulated and advanced an intense legal debate still ongoing today: Can and should the Supreme Court be the exclusive interpreter of the Constitution?

Constitutions as Establishments

I’ve been thinking a little bit about the difference between establishments and disestablishments of religion.  Constitutions serve several functions, but for this post, I’m interested in one in particular: to entrench the idea that there is a law above the state’s law — a law that cannot be changed by ordinary legislation.  Could one say this about established religions in constitutional states?  The argument would be that established religions in constitutional states place the constitutional state above its ordinary law, and they thereby control and restrain (the reach of) ordinary law.  If the claim works, then as a functional matter, one might think of the Constitution as an establishment of religion.  The Constitution — and, even more specifically, the First Amendment — is our establishment.  It enshrines limits on the power of government, and in the case of the Free Exercise Clause, it can even subordinate the ordinary acts of government to higher law.  And the First Amendment is an establishment inasmuch as it incorporates certain relationships between the state and religion right into the fabric of the governmental structure — relationships which it then fixes and removes from the purview of ordinary law.  The difference between constitutional states with establishments of religions and those without them is that in the former, God or the gods establish the state, while in the latter, people do.  But in both cases, constitutions ‘establish’ the (for lack of a better term) sacredness of the state and cement its position above ordinary law.  And so, from this perspective, the opposite of establishment is not so much disestablishment as tyranny.

Bennett, Traditional African Religions in South African Law

Traditional African ReligionsThis past November, Juta – Academic published Traditional African Religions in South African Law by Tom Bennett (University of Cape Town). The publisher’s description follows.

Traditional African beliefs, together with African cultural traditions, are enjoying a new-found respect in South Africa, due in large part to the advent of the country’s democratic constitution.  In fact, a large majority of the South African population adheres to some form of traditional belief, often in combination with observance of other religions.  Even so, the traditional faiths are poorly understood and, in spite of constitutional guarantees, receive far from equal treatment, a situation quite at odds with the country’s commitment to equality and religious and cultural diversity.

While there are numerous works on the subject of religion in Africa, there are no works on traditional African religions and their legal implications.  The issue is nevertheless of serious political and legal concern in South Africa, since it raises diverse questions involving freedom of religion, the equal treatment of religions, traditional healing, witchcraft, animal sacrifice, circumcision, marriage and burial.

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Hallaq, “The Impossible State: Islam, Politics, and Modernity’s Moral Predicament”

This December, Columbia University Press will publish The Impossible State: Islam, Politics, and Modernity’s Moral Predicament by Wael B. Hallaq (Columbia University).  The publisher’s description follows.

Wael B. Hallaq boldly argues that the “Islamic state,” judged by any standard definition of what the modern state represents, is both an impossible and inherently self-contradictory concept. Comparing the legal, political, moral, and constitutional histories of pre-modern Islam and Euro-America, he finds the adoption and practice of the modern state to be highly problematic for modern Muslims. He then conducts a more expansive critique of modernity’s moral predicament, which renders impossible any project resting solely on ethical foundations.

The modern state not only suffers from serious legal, political, and constitutional issues, Hallaq argues, but it also, by its very nature, fashions a subject inconsistent with what it means to be, or to live as, a Muslim. By Islamic standards, the state’s technologies of the self are severely lacking in moral substance, and the Muslim state, as Hallaq shows, has done little to advance an acceptable form of genuine Shari‘a governance. The Islamists’ constitutional battles in Egypt and Pakistan, the Islamic legal and political failures of the Iranian Revolution, and similar disappointments underscore this fact. Nevertheless, the state remains the favored template of the Islamists and the ulama (Muslim clergymen). Providing Muslims with a path toward realizing the good life, Hallaq turns to the rich moral resources of Islamic history. Along the way, he proves political and other “crises of Islam” are not unique to the Islamic world nor to the Muslim religion. These crises are integral to the modern condition of both East and West, and recognizing such parallels enables Muslims to engage more productively with their Western counterparts.

Gill, “An Argument for Same-Sex Marriage”

Last Month, Georgetown University Press published An Argument for Same-Sex Marriage: Religious Freedom, Sexual Freedom, and Public Expressions of Civic Equality by Emily R. Gill (Bradley University). The publisher’s description follows.

The relationship between religious belief and sexuality as personal attributes exhibits some provocative comparisons. Despite the nonestablishment of religion in the United States and the constitutional guarantee of free exercise, Christianity functions as the religious and moral standard in America. Ethical views that do not fit within this consensus often go unrecognized as moral values. Similarly, in the realm of sexual orientation, heterosexuality is seen as the yardstick by which sexual practices are measured. The notion that “alternative” sexual practices like homosexuality could possess ethical significance is often overlooked or ignored.

In her new book, An Argument for Same-Sex Marriage, political scientist Emily Gill draws an extended comparison between religious belief and sexuality, both central components of one’s personal identity. Using the religion clause of the First Amendment as a foundation, Gill contends that, just as US law and policy ensure that citizens may express religious beliefs as they see fit, it should also ensure that citizens may marry as they see fit. Civil marriage, according to Gill, is a public institution, and the exclusion of some couples from a state institution is a public expression of civic inequality. Continue reading