Tag Archives: Religious Freedom

“Religious Responses to Violence” (ed. Wilde)

In December, the University of Notre Dame Press will release “Religious Responses to Violence: Human Rights in Latin America Past and Present,” edited by Alexander Wilde (American University).  The publisher’s description follows:

During the past half century, Latin America has evolved from a region of political instability and frequent dictatorships into one of electedp03204 governments. Although its societies and economies have undergone sweeping changes, high levels of violence have remained a persistent problem. Religious Responses to Violence: Human Rights in Latin America Past and Present offers rich resources to understand how religion has perceived and addressed different forms of violence, from the political and state violence of the 1970s and 1980s to the drug traffickers and youth gangs of today. The contributors offer many fresh insights into contemporary criminal violence and reconsider past interpretations of political violence, liberation theology, and human rights in light of new questions and evidence.

In contrast to many other studies of violence, this book explores its moral dimensions—up close in lived experience—and the real consequences of human agency. Alexander Wilde provides a thoughtful substantive introduction, followed by thematic chapters on “rights,” “violence,” and case studies of ten countries throughout the region. The book breaks new ground examining common responses as well as differences between Catholic and Evangelical pastoral accompaniment. These new studies focus on the specifically religious character of their responses—how they relate their mission and faith to violence in different contexts—to better understand how and why they have taken action.

Pupcenoks, “Western Muslims and Conflicts Abroad”

In December, Routledge will release “Western Muslims and Conflicts Abroad: Conflict Spillovers to Diasporas,” by Juris Pupcenoks (Marist College).  The publisher’s description follows:

This book explains why reactive conflict spillovers (political violence in response to conflicts abroad) occur in some migrant-background 9781138915527communities in the West. Based on survey data, statistical datasets, more than sixty interviews with Muslim community leaders and activists, ethnographic research in London and Detroit, and open-source data, this book develops a theoretical explanation for how both differences in government policies and features of migrant-background communities interact to influence the nature of foreign-policy focused activism in migrant communities. Utilizing rigorous, mixed-methods case study analysis, the author comparatively analyses the reactions of the Pakistani community in London and the Arab Muslim community in Detroit to the wars in Afghanistan and Iraq during the decade following 9/11. Both communities are politically mobilized and active. However, while London has experienced reactive conflict spillover, Detroit has remained largely peaceful.

The key findings show that, with regards to activism in response to foreign policy events, Western Muslim communities primarily politically mobilize on the basis of their ethnic divisions. Nevertheless, one notable exception is the Arab-Israeli conflict, which is viewed through the Islamic lenses; and the common Islamic identity is important in driving mobilization domestically in response to Islamophobia, and counterterrorism policies and practices perceived to be discriminatory. Certain organizational arrangements involving minority community leaders, law enforcement, and government officials help to effectively contain excitable youth who may otherwise engage in deviant behavior. Overall, the following factors contribute to the creation of an environment where reactive conflict spillover is more likely to occur: policies allowing immigration of violent radicals, poor economic integration without extensive civil society inter-group ties, the presence of radical groups, and connections with radical networks abroad.

DeGirolami, “Virtue, Freedom, and the First Amendment”

I’ve recently posted this paper, Virtue, Freedom, and the First Amendment. Here is the abstract.

The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods — as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.

Something like this collection of views constitutes the conventional account of the First Amendment. This essay offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means — a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem — the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society.

Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture’s core values are not the First Amendment freedoms themselves but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms.

One prominent group has invented a new legal category: “enumerated rights Lochnerism.” These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court’s post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress.

Part I of this essay presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem — the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment.

But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues — exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy — are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court’s post-New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns’s arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment “absolutism.”

The essay concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone — for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.

Panel: “The Present & Future of Religious Freedom” (Chicago, Dec. 10)

The Lumen Christi Institute will host a panel, “The Present and Future of Religious Freedom,” on December 10 in Chicago:

Recent controversy over the HHS contraceptive mandate and the participation of faith-based organizations in federal grant programs has raised questions about religious freedom in the American legal and political systems. This discussion will consider the perceived conflict between civil rights and religious freedom and the roles of Congress, the judiciary, and administrative agencies for how religious freedom will be understood, applied, and protected in the future.

The panelists are Noel Francisco of Jones Day and Michael Moreland of Villanova Law School. Details are here.



L-R: DeGirolami, Sullivan, Movsesian

Thanks again to Rick Garnett, Phillip Munoz, and the hardworking staff at the Notre Dame Law Review for hosting us at the conference on religious liberty last week. It was a wonderful event — substantive, friendly, and engaging. We’ll link to the video when it’s available. Papers will eventually appear in a forthcoming issue of the Law Review. Meanwhile, here’s a shot of three happy CLR types, Marc DeGirolami, Judge Richard Sullivan, and me, just before our panel on religion in the modern world.

Ahmed, “Religious Freedom under the Personal Law System”

In December, Oxford University Press will release “Religious Freedom Under the Personal Law System” by Farrah Ahmed (Melbourne Law School, University of Melbourne). The publisher’s description follows:

The personal law system is hugely controversial and the subject of fierce debates. This book addresses a vital issue that has received inadequate attention in these debates: the impact of the personal law system on religious freedom. Drawing on scholarship on the legal reform of the personal law system, as well as philosophical literature on multiculturalism, autonomy, and religious freedom, this book persuasively argues that the personal law system harms religious freedom. Several reform proposals are considered, including modifications of the personal law system, a move towards a millet system, internal reform of individual personal laws, the introduction of a Uniform Civil Code, and a move towards religious alternative dispute resolution.

This book will be of significant interest to students and scholars of law, politics, and gender studies, as well as lawyers and policymakers across jurisdictions interested in multiculturalism, particularly contemporary debates on the legal accommodation of religious and cultural norms.


Panel Two: Examining the History of Dignitatis Humanae

The second panel kicks off with Phillip Muñoz, whose talk concerns the limits of state power with respect to religion as a historical matter in the text of state constitutions. Phillip’s key point is that there are some features of religious freedom that are categorically outside state power. There are some interests that the state can never pursue. Sherbert and RFRA are mechanisms through which the government can control religion. Phillip focuses on state constitutions because these documents show that the founders had a natural rights view of religious freedom and the unalienability of certain rights, over which the government has no jurisdiction. These rights were categorical limits on government power. But the rights have natural limits–to wit, the natural rights of others.

Brett Scharffs spoke next. Brett offered an interesting account of the different types of restrictions on religious freedom across the world. 39% of the world’s countries have high or very high government restrictions, and these include countries with high populations. Countries on the Asian continent have particularly high representation. There are also statistics for social hostility with respect to religion, which seem to correlate with countries with a high percentage dominant religious group. Catholic majority countries tend to score low as to both measures. His conclusions: religion is a limitation on religious freedom. Second, it is important therefore to look for justifications for religious freedom within those traditions.

Anna Su spoke last. Her presentation was historical whose points were that the US approach was an important, at first, contrast and then, later, a model for the Catholic Church. She also noted that John Courtney Murray’s contributions were prefigured by the Americanist controversy in the 19th century. Religious freedom may be less threatened in secular countries like the US, but that does not mean that religious freedom is less fragile in secular countries than in those with religious bases.

Panel 1: Religious Freedom, the First Amendment, and U.S. Law

I’m here with Mark at the Notre Dame conference and thought I would live blog some of the panels today.

The first panel deals with the First Amendment proper. After a wonderful introduction by Judge Sullivan, Tom Berg spoke first. His primary theme concerned the role of religious organizations in the broader society, particularly those organizations that span the public and private realms. Critics of exemptions say that once a religious organization enters the public realm (by hiring employees who may not share the faith), no exemptions are permissible. Tom’s focus is on what he calls “partly acculturated” organizations–organizations that are deeply involved in providing social services and in performing civic functions but that do not share all of the culture’s norms. He argued that such organizations should receive exemptions both for religious equality reasons and for reasons of the social capital contributed by such groups. As to the latter, the point is not simply about the benefits to society but about the core reasons for protecting religious freedom at all.

Rick Garnett spoke next. He focused on an under appreciated feature of Dignitatis Humanae, the idea that government has a role in creating, proactively, the conditions necessary for the full exercise of religious freedom. As to the second, is this consistent with American constitutionalism? There is at least some tension. But Rick argued that the American account of religious freedom need not be neutral if neutrality demands that the state not regard religion “as a good thing.” That is, there is an important space between establishment and the state’s proper, secular, care for religion. That understanding is reflected in DH. Care, as Rick understands it, might include the building and maintaining of infrastructural spaces within which religious institutions can thrive.

Paul Horwitz spoke third. His theme was a liberal argument for accommodation as to illiberal groups. He began by surveying the usual accommodationist and anti-accommodationist claims. His own view he described as a liberal pluralist perspective. Accommodation is valuable because the state is obliged to act as if there may be important and valuable ideas inaccessible to liberalism. But it is also valuable because not accommodating illiberal groups will ostracize them entirely from society, isolated entirely. This would be a loss for them and for the liberal society. Accommodation “keeps those groups in and not out.”

Chris Lund spoke last. His talk concerned exemptions as well. He argued that without exemptions, many religions could not survive in the modern age. He addressed the claim that certain sorts of exemptions violate the Establishment Clause, those that impose third party harms. There has to be some principle of third party harms and cost, but the difficult questions concern which sorts of harms count. And they are quite difficult. His current factors include: (1) severity of the harm, the problem of course being describing what this means. (2) likelihood of the harm, which is perhaps a bit easier to understand. (3) the religious interest in obtaining the exemption. (4) the existence of other secular exemptions. All of this will require balancing, something the Court is not especially willing to do.

Pin, “The Legal Treatment of Muslim Minorities in Italy: Islam and the Neutral State”

In January, Ashgate will release “The Legal Treatment of Muslim Minorities in Italy: Islam and the Neutral State” by Andrea Pin (University of Padua). The publisher’s description follows:

Islam is a growing presence practically everywhere in Europe. In Italy,Unknown
however, Islam has met a unique model of state neutrality, religious freedom and church and state collaboration. This book gives a detailed description of the legal treatment of Muslims in Italy, contrasting it with other European states and jurisprudence, and with wider global tendencies that characterize the treatment of Islam. Through focusing on a series of case studies, the author argues that the relationship between church and state in Italy, and more broadly in Europe, should be reconsidered both to secure religious freedom and general welfare.

Working on the concepts of religious freedom, state neutrality, and relationship between church and state, Andrea Pin develops a theoretical framework that combines the state level with the supranational level in the form of the European Convention of Human Rights, which ultimately shapes a unitary but flexible understanding of pluralism. This approach should better accommodate not just Muslims’ needs, but religious needs in general in Italy and elsewhere.

“The Protection of Religious Minorities Worldwide” (Defeis and O’Connor, eds.)

Last month, Pax Romana released “The Protection of Religious Minorities Worldwide,” edited by Elizabeth F. Defeis (Seton Hall Law School) and Peter F. O’Connor. Prof. Defeis is an alumna of St. John’s Law and a member of the Advisory Board of the Center for International and Comparative Law at St. John’s.  Mr. O’Connor is a third-year law student at St. John’s. The publisher’s description follows:

Throughout history, religious minorities have experienced discrimination, persecution, expulsion, and genocide. Further, in the last decade, the world has witnessed an unprecedented increase in violent persecution of religious minorities, particularly in the Middle East, in Asia and in Africa. Yet the international community has been a bystander and has not been able or willing to develop a strategy to protect persecuted religious minorities and to stop their expulsion and genocide. After the Second World War with the creation of the United Nations, there were great hopes that all peoples could live in peace with one another as good neighbors, based on the fundamental human rights and the practice of tolerance as stated in the Preamble of the United Nations Charter. However, the United Nations never developed specific and effective strategies to protect the human rights of religious minorities and to stop their persecution, expulsion and genocide. Even so, we must recognize that the United Nations has been providing humanitarian assistance to refugees who fled for religious reasons. The 2014 Symposium at the United Nations in New York on the “Protection of Religious Minorities Worldwide” was directed at the international community in the hope that it will acknowledge the dire situation of so many religious minorities and will adopt practical strategies and measures for protection of, and strong humanitarian assistance for, the expelled religious refugees.