Tag Archives: Equality

Pantagruel Comes for the Establishment Clause

That is the title of an essay I have up at the Library of Law and Liberty. Here’s the beginning:

In the second book of the sixteenth century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.” When the lawyers and jurists propose to give Pantagruel the relevant texts, writs, historical records, learned treatises, and legal authorities, he orders all of this “scribble-scrabble foolscrap” immediately burned. These materials, he scoffs, are “pure subversions of equity,” for “the law grew up out of the field of natural and moral philosophy.” After a perfunctory hearing and by the light of “philosophical and evangelical justice,” Pantagruel rules with swift panache, and his judgment is hailed as wiser than Solomon’s.

Pantagruel is coming for the Establishment Clause. He comes today bearing the standard of equality, and the manifestations of equality that he would have courts superimpose on the Constitution. In several disputes ostensibly involving the constitutional prohibition on “laws respecting an establishment of religion,” courts are interpreting this provision of the First Amendment to require adherence to a kind of pure principle of equality, or its close cousin, neutrality. And just as Pantagruelic justice beguiled Rabelais’ fictional Parisian intelligentsia, so, too, is the egalitarian justice of today’s courts extolled by the legal professoriate. Yet though certain forms of unequal treatment by the state on the basis of religion surely do create questions of constitutional dimension, we now face something like the obverse situation: courts so rigorously adhere to notions of egalitarian justice that the Establishment Clause is bloated to the point of collapsing of its own weight.

Panel: Freedom of Religion or Belief and Gender Equality (Oct. 30)

In New York on October 30, the NGO Committee on Freedom of Religion or Belief, together with BYU’s International Center for Law and Religion Studies, will host a luncheon and panel discussion on Freedom of Religion or Belief and Gender Equality. Featured speakers include:

  • Heiner Bielefeldt, UN Special Rapporteur for Freedom of Religion or Belief, and author of a new report, “Freedom of Religion or Belief and  Equality Between Men and Women”;
  • Lakshmi Puri, deputy executive director of UN Women;
  • Gulalai Ismail, founder and chairperson of  Aware Girls;
  • Margareta Grape, representative to the UN, World Council of Churches;
  • Tina Ramirez, president, Hardwired.

Details are here.

Law, Religion, and Putin’s Times Op-Ed

Law and religion is not at the very forefront of the rapidly changeable geo-political situation regarding Syria (though, as we have noted here, it is certainly in the immediate background). But somehow, some way, law and religion managed to make its way into Russian President Vladimir Putin’s New York Times editorial (which the Times decided to title, “A Plea for Caution From Russia“), printed on no less exceptional a date than September 11. After condemning “the language of force” (at least when used by the United States) and praising the newly emergent “growing trust” that marks his “working and personal relationship with President Obama,” Putin saw fit to throw a final rhetorical body-blow against American exceptionalism by deploying the language of law and religion:

I carefully studied [Obama’s] address to the nation on Tuesday. And I would rather disagree with a case he made on American exceptionalism, stating that the United States’ policy is “what makes America different. It’s what makes us exceptional.” It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation. There are big countries and small countries, rich and poor, those with long democratic traditions and those still finding their way to democracy. Their policies differ, too. We are all different, but when we ask for the Lord’s blessings, we must not forget that God created us equal.

Tocqueville and Gobineau

It is fitting to end this series with a study of the exchanges between GobineauTocqueville and his younger friend and assistant, Arthur de Gobineau. For if Tocqueville was the explorer of the new age of democracy, Gobineau was the herald of a return to an age of aristocracy, if in an untraditional and modernized form.

Though little remembered now, Gobineau was a prolific and assiduous writer, known chiefly for his defense of racism, the Essai sur l’inégalité des races humaines (1853-55) (“Essay on the Inequality of the Human Races”). Eleven years younger than Tocqueville and, like him, the Essaiscion of a noble family (if a lesser one), Gobineau was probably introduced to Tocqueville by royalist friends of both. Whether or not they had met previously, the two men began a correspondence in 1843. The exchange resulted from an invitation the Académie des sciences morales et politiques had extended to Tocqueville in that year, to prepare a study on modern moral doctrines in order to establish what, if anything, was novel in them. Tocqueville sought to enlist the young Gobineau’s assistance in the project. The ensuing correspondence took, for Tocqueville, a surprising turn, as he found his deepest beliefs about the relationship of Christianity to modern society sharply challenged. Tocqueville abandoned the study in 1848, probably owing to the revolution of that year.

A second major round of correspondence took place beginning about a decade later, around the time of the appearance of Gobineau’s book on racial inequality. This new, illiberal orientation in Gobineau’s thought deeply disturbed Tocqueville, who told Gobineau frankly that he objected to its “fatalism” and its “materialism.” To other correspondents, Tocqueville complained that Gobineau’s “stud farm philosophy” expounded “dangerous thoughts . . . in a journalistic style.” See Françoise Mélonio, Tocqueville and the French 129 (Beth Raps trans. 1998). For his part, Gobineau exulted that the book had “struck the nerve of liberal ideas at its core.” Id.

Despite their basic differences, Tocqueville befriended Gobineau, launching him on a diplomatic career when Tocqueville became France’s Foreign Minister in 1849. Gobineau did not repay Tocqueville’s kindness: in his 1874 novel Les Pléiades, his used the character of Genevilliers to mock and satirize his benefactor. Mélonio at 128-30.

The interest and importance of the Tocqueville-Gobineau correspondence has been rightly emphasized by several scholars. See especially Aristide Tessitore, “Tocqueville and Gobineau on the Nature of Modern Politics,” 67 Review of Politics 631 (2005); see also Christian Bégin, “Tocqueville et la fracture religieuse,” 32 The Tocqueville Review/La Revue Tocqueville 167 (2011); Larry Siedentop, Tocqueville 96-106; 126-30 (1994); William A. Galston, “Tocqueville on Liberalism and Religion,” 54 Social Research 499 (1987). The historian John Lukacs has edited and translated most – though unfortunately not all – of the correspondence, and I shall use this translation. Alexis de Tocqueville, “The European Revolution” & Correspondence with Gobineau (John Lukacs ed. & trans. 1968).

The ultimate issues

The confrontation between Tocqueville and Gobineau was played out on at least two levels.

First, as of 1843, Gobineau “might best be described as a radical partisan of the Enlightenment project.” Tessitore at 632. Throughout his career, however, Tocqueville had argued that modern Western society was indebted to both the Enlightenment and Christianity, that the central doctrines of both movements were compatible, and that the tension between them was fruitful and beneficent, each correcting the flaws and excesses of the other. See id. at 639; 652; Galston at 502-04. The core principles of the Enlightenment, such as “the natural equality of men,” were also part of the patrimony of Christianity. See Alexis de Tocqueville, The Ancien Régime and the Revolution 21 (Bevan trans. 2008).

For Gobineau, the Enlightenment marks a revolutionary transformation in the West, ushering in a post-Christian era in which morality has come to rest on a wholly naturalistic foundation. See Tessitore at 641. For Tocqueville, by contrast, the coming of Christianity is the only true revolution that the West has yet seen, or may ever see. (The same thesis has been defended at length, but without reference to Tocqueville, in David Bentley Hart’s brilliant Atheist Delusions, cited earlier in this series.). There is, indeed, a radical discontinuity in the dominant ethos of the West; but this is the rupture between classical antiquity and the rise of Christianity, not between the Christian ages and the aftermath of the Enlightenment. True, the morality of the nineteenth century differs significantly from that of the pre-Enlightenment period, notably with regard to the importance of political action and the recognition of life’s material needs. But these changes, Tocqueville insists, merely reflect the development of Christian morality over long stretches of time and its adaptation to new circumstances. They do not constitute evidence of the dominance of a radically de-christianized ethos. See Tessitore at 636; 644-45; 648; Galston at 505-08.

Second, Gobineau’s view of modern morality in the early 1840s laid the foundation for his later teaching about human inequality.

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Conference: “Religious Freedom and Equal Treatment: An International Look” (Oct. 11-12)

Brooklyn Law School will host a symposium, “Religious Freedom and Equal Treatment: An International Look,” on Oct. 11-12. Details are here.

Tocqueville on the naturalness of religious belief

In considering the relationship between Christianity and modern democracy, Tocqueville was bound to offer some explanation of the fact that democracy in America was hospitable to that faith while democracy in France was hostile to it. Such an explanation could of course also help explain why, in America, the Reformation and the Enlightenment were and have remained allies while, in much of Europe, the Enlightenment and the Counter-Reformation were, until recent times, vehemently opposed. And it could also shed light on the persisting phenomenon that Americans even now are typically more “religious” than Europeans.

One might have thought that the difference between French and American had something to do with the origins of the two democracies: American democracy took hold in an overwhelmingly Protestant environment, while French democracy arose in opposition to the Catholic Church. Indeed, Tocqueville himself observed that the early Puritan settlers of America brought with them “a form of Christianity which I can only describe as democratic and republican,” and that the circumstances of America’s founding were thus “exceptionally favorable to the establishment of a democracy and a republic in governing public affairs.” Democracy in America at 336 (Bevan trans.). To understand America fully, Tocqueville suggests, we must keep its Puritan origins in mind: “[i]t is religion which has given birth to Anglo-American societies: one must never lose sight of that.” Id. at 496.

In fact, however, Tocqueville’s explanation of the (sometimes amicable, sometimes antagonistic) relationship between Christianity and democracy followed another course. The crucial distinction, he argues, is not between Protestant and Catholic forms of Christianity, but between religion in its “natural” state and religion as a “political” institution. When a political régime permits religion to remain in its “natural” condition, and religion for its part does not seek a “political” role, religion will flourish and, moreover, the régime may find itself stronger for that fact. On the other hand, if a régime seeks to instrumentalize religion or if religion seeks political power, religion will inevitably suffer and any benefits to the régime from its alliance with religion will be fleeting.

Although Tocqueville says that “[a]longside every religion lies some political opinion which is linked to it by affinity,” id. at 336, and acknowledges that “Catholicism resembles absolute monarchy,” id. at 337, he nonetheless insists that neither Protestantism nor Catholicism is especially fitted to or congruent with any specific type of political régime. “[I]n the United States there is no single religious doctrine which is hostile to democratic and republican institutions.” Id. at 338. If anything, Tocqueville believes that Catholicism, despite its apparent affinity for monarchy, would be a better form of Christianity from the standpoint of democracy than Protestantism. Catholicism leads men towards equality, while Protestantism leads them towards independence, id. at 337; and the former condition is more favorable to democracy. Thus, although Catholics retain “a firm loyalty” to their form of worship and are “full of fervent zeal” for their beliefs, they are “the most republican and democratic class in the United States” id., at once “the most obedient believers and the most independent citizens,” id. at 338.

Such, in brief, is Tocqueville’s main line of argument. But as we shall discover, many qualifications to it are needed and some significant problems for it arise. Let us begin by considering his analysis of the situation in pre-Revolutionary France.

Two Trends in French Enlightenment Thought

The French Revolution, Tocqueville thought, saw two great passions at work: political and religious. Of these, the anti-religious passion was “the first to be kindled and the last to be extinguished.” Alexis de Tocqueville, The Ançien Régime and the Revolution 21 (original ed. 1856; Bevan trans. 2008). The Revolution’s hatred of religion was largely the handiwork of eighteenth century French Enlightenment philosophy which, he says, “is correctly considered as one of the main causes of the Revolution” and which was “profoundly anti-religious.” Id.

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ICLARS Conference: “Religion, Democracy, and Equality” (August 21-23)

The International Consortium for Law and Religion Studies (ICLARS) will host a conference, “Religion, Democracy, and Equality” next month in Virginia. The conference will be split among Richmond, Williamsburg, and Charlottesville. Seventy law and religion scholars from around the world, including CLR faculty Mark Movsesian and Marc DeGirolami, will participate. The most recent version of the conference program is here.

ICLARS is an international network of scholars and experts of law and religion begun in 2007. Its purpose is to provide a forum for exchange of information, data, and opinions among members, which are then made available to the broader academic community. Currently, ICLARS has members from more than 40 countries.

Astoria on The Endorsement Test and Equal Status

Ross Astoria (U. of Wisconsin, Parkside) has posted The Endorsement Test and Equal Status. The abstract follows.

Since its inception, jurists and legal scholars have hotly contested the utility and fairness of the endorsement test. For its detractors, the endorsement test is unanchored in the constitutional text, devoid of limitations on the exercise of judicial power, and accordingly produces misguided outcomes. In contrast, its remaining adherents think the endorsement test expresses the basic democratic value of equality, and therefore find it worthy of preservation.

This paper is an attempt to reinvigorate the endorsement test
by more concisely articulating the relationship between endorsing and equality. As the endorsement test is presently conceived and employed, however, this relationship is oblique at best. In order to foreground equality, then, the endorsement test requires significant modification, which I propose in Section III. The primary purpose of these modifications is to assign to the norm of equal status the central role in Establishment Clause jurisprudence, particularly in those cases conventionally dubbed “display cases.” As far as I can tell, this is a new approach to religion clause jurisprudence. To test the modified endorsement test, I tease out its implications by applying it to several cases and scenarios.

In what follows, I first introduce the norm of equal status by
comparing it with other norms which religion clause theorists often take as salient (Sec. II). I then introduce the modification to the endorsement test, showing in the process how the endorsement test, as presently conceived, fails to foreground the norm of equal status (Sec. III). Finally, I apply the modified endorsement test to several common display case scenarios (Sec. IV). In the conclusion, I say a few things about the superiority of the modified endorsement test (Sec. V).

McCrudden & O’Leary, “Courts and Consociations”

This May, Oxford University Press will publish Courts and Consociations: Human Rights versus Power-Sharing by Christopher McCrudden (Queen’s University, Belfast & University of Michigan Law School) and Brendan O’Leary (Queen’s University, Belfast).  The publisher’s description follows.Courts

Consociations are power-sharing arrangements, increasingly used to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts. Current examples include Belgium, Bosnia, Northern Ireland, Burundi, and Iraq. Despite their growing popularity, they have begun to be challenged before human rights courts as being incompatible with human rights norms, particularly equality and non-discrimination.

Courts and Consociations examines the use of power-sharing agreements, their legitimacy, and their compatibility with human rights law. Key questions include to what extent, if any, consociations conflict with the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements.

In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and then in Sejdic and Finci v Bosnia regarding the constitution established for Bosnia Herzegovina under the Dayton Agreement. The Court’s decision in Sejdic and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in Belgium. This book accounts for this change and assess its implications. The problematic aspects of the current state of law are demonstrated. Future negotiators in places riven by potential or actual bloody ethnic conflicts may now have less flexibility in reaching a workable settlement, which may unintentionally contribute to sustaining such conflicts and make it more likely that negotiators will consider excluding regional and international courts from reviewing these political settlements.

Providing a clear, accessible introduction to both the political use of power-sharing settlements and the human rights law on the issue, this book is an invaluable guide to all academics, students, and professionals engaged with transitional justice, peace agreements, and contemporary human rights law.

Call for Papers: “Religion, Democracy, and Equality”

The International Consortium for Law and Religion Studies (ICLRS) will host its third annual conference, “Religion, Democracy, and Equality,” in Richmond this coming August and has issued a call for papers on the following themes:

  • Religious pluralism and treatment of religious minorities
  • Religion and anti-discrimination norms
  • Hate speech, hate crimes, and religious minorities
  • Religion and gender issues.

Details are here.