Tag Archives: Religious Freedom

The Return of the Dhimma?

First Things has run my essay on the return of the dhimma in Syria and its potential meaning for Mideast Christians:

Recently, an Islamist group in the Syrian opposition, the Islamic State in Iraq and the Levant (ISIL), captured the town of Raqqa and imposed on its Christian inhabitants the dhimma, the notional contract that governs relations with Christians in classical Islamic law. The dhimma allows Christian communities to reside in Muslim society in exchange for payment of a poll tax called the jizya and submission to social and legal restrictions. In Raqqa, for example, Christians have “agreed,” among other things, to pay ISIL a tax of $500 per person twice a year—poorer Christians can pay less—and to forgo public religious displays.

The dhimma has not been in operation in the Mideast for about 150 years. Even Egypt’s Muslim Brotherhood did not reinstate it during the party’s brief period in power. Indeed, some progressive Islamic scholars argue that the dhimma is an anachronism that should no longer be part of Islamic law. So ISIL’s decision to impose it now has shocked Christians and many Muslims. The formal reestablishment of the dhimma in Raqqa reveals that some Islamists are prepared to cross a line many had thought inviolable.

You can read the whole thing here.

Why Protect Religion?

Tocqueville understood

A growing number of legal scholars question whether a justification exists for protecting religion as its own category. Yes, the text of the First Amendment refers specifically to religion, they concede, but that’s an anachronism. As a matter of principle, religion as such doesn’t merit legal protection. Instead, the law should protect individual conscience, or private associations generally. In fact, it’s not just scholars. In the ministerial exception case a couple of years ago, the Obama Administration argued that the Religion Clauses did not even apply and that the Court should decide the case under more general associational freedom principles.

The Justices unanimously dismissed the Obama Administration’s argument in Hosanna-Tabor, and there seems little chance the Roberts Court will read the Religion Clauses out of the Constitution. But history shows that constitutional text is not an insurmountable barrier, and those of us who think religion as such does merit special protection will need to find arguments beyond the bare language of the First Amendment. In fact, in an increasingly non-religious society, we’ll have to find arguments that appeal to people without traditional religious commitments.

Here’s one such argument. Religion, especially communal religion, provides important benefits for everyone in the liberal state–even the non-religious. Religion encourages people to associate with and feel responsible for others, to engage with them in common endeavors. Religion promotes altruism and neighborliness and mitigates social isolation. Religion counteracts the tendencies to apathy and self-centeredness that liberalism seems inevitably to create.

Tocqueville saw this in the 19th century. Egalitarian democracy, he wrote, encourages a kind of “individualism.” It trains each citizen to look out for himself according to his own best judgment and discount the needs of the wider society. Self-reliance is a good thing; at least Americans have long though so. But the attitude poses two great dangers for liberal society. First, it makes it difficult to motivate people to contribute to the common projects on which society depends: public safety, schools, hospitals, and the like. Second, it makes it easier for despotism to arise. The despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to the concerns of others, so that the state can easily divide and dominate them all.

Tocqueville saw that voluntary associations could lessen these dangers. Religious associations are particularly useful in this regard. They are uniquely good at promoting social engagement–secular as well as religious. According to sociologist Robert Putnam, for example, regular churchgoers are more likely to vote, serve on juries, participate in community activities, talk to neighbors, and give to charities, including non-religious charities. And when it comes to defying state oppression, no groups are more effective than religious associations, which can inspire members to truly heroic acts of resistance, as dictators down the centuries have learned.

To be sure, religions don’t always encourage civic fellowship; to the extent a religion promotes sedition or violence against other citizens, society does not benefit. And perhaps, as Gerald Russello suggests, the non-religious have come so to distrust religion that they will view its contributions as tainted and objectionable from the start. But in encouraging greater social involvement, religion offers benefits to everyone, believers and non-believers, too. It’s worth reminding skeptics of this when they argue that religion, as such, doesn’t merit legal protection.

The Weekly Five

This week’s collection of five new articles from SSRN includes Corinna Lain’s history of Engel v. Vitale, the school prayer case; Anna Su’s review of Steve Smith’s new book on the decline of religious freedom; and pieces on corporate social responsibility in Asia; Christianity and other foundations of international law; and the will to live.

1. John D. Haskell (Mississippi College-School of Law), The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism. According to Haskell, three traditions constitute “modernity” in international legal scholarship—Christianity, Liberalism, and Marxism. These three traditions differ from one another but also have some similarities. He writes, “my hope is that in studying each tradition, we can find a new synthesis that allows fresh analytical tools to conceive the dynamics of global governance today and how they might be addressed.”

2. Corinna Lain (University of Richmond), God, Civic Virtue, and the American Way: Reconstructing Engel. In this history of Engel v. Vitale, the 1962 Supreme Court decision that struck down school prayer, the author argues that the conventional wisdom has the case wrong. Engel was not an example of the Court’s standing bravely against a popular majority. If the Justices had understood how controversial their decision would be, she maintains, they would not have taken the case to begin with. Instead, Engel demonstrates the power of judicial review in stimulating democratic deliberation on the Constitution—what some scholars call “popular constitutionalism.” She argues that popular antipathy to the decision resulted from misunderstandings provoked by the media.

3. Marvin Lim (Independent), A New Approach to the Ethics of Life: The “Will to Live” in Lieu of Traditionalists’ Notion of Natural/Rational and Progressives’ Autonomy/Consciousness. The author maintains that both traditionalist and progressive justifications for protecting human life are inconsistent and unconvincing. In their place, he argues for an ethic of the “will to live.” What ultimately matters is whether actions respect or violate this ethic. This approach would allow abortion and assisted suicide in at least some circumstances, he says.

4. Arjya B. Majumdar (Jindal Global Law School), Zakat, Dana and Corporate Social Responsibility. In this essay, the author traces the tradition of charity in Islam, Hinduism, and Buddhism and explores the relevance of that tradition in corporate law. Especially in Asia, the author says, where corporations have relatively few shareholders and tend to be family or individual operations, religious traditions of charity can play an important role in boosting corporate social responsibility.

5. Anna Su (SUNY Buffalo), Separation Anxiety: The End of American Religious Freedom? This is a review of Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom. Su disagrees with Smith that the Supreme Court’s twentieth-century Religion Clause cases threaten the existence of religious freedom. “These decisions,” she writes, though frustrating and incoherent as they might seem, in fact, are as responsible for the remarkable religious pluralism that exists in American society today as much as for the contemporary secular extremism that Smith deplores.”

Corey on DeGirolami on Religious Freedom

In the University Bookman, Baylor’s Elizabeth Corey has a nice review of Marc’s book, The Tragedy of Religious Freedom:

DeGirolami suggests an alternative way of thinking about the conflicts inherent in religious liberty jurisprudence. He calls this the “tragic” approach. It shares with the extreme skeptics a doubt about the efficacy of theory as a magic bullet for solving real-world disputes. But it also agrees with the comic monist assumption that abstractions—equality, neutrality, noncoercion—are not empty of meaning but rather can be emblems of important values that law aims to protect….

The book merits a much more in-depth treatment than I can give it here. But perhaps what is most striking about it is its appreciation for theory—indeed, the whole work is an assessment of the value of theorizing—that is simultaneously grounded in the concrete and particular: case law. At once philosophical and practical, this book is a must-read for anyone who cares about religious freedom.

Read the whole review here.

CLR Podcast on Sebelius v. Hobby Lobby

In our most recent podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss last week’s oral argument in Sebelius v. Hobby Lobby, the Contraception Mandate case. We address the background of the litigation, the rhetorical strategies adopted by each side, and the major doctrinal questions the Court will need to resolve. We also make predictions about how the Justices will ultimately rule. The podcast will be useful for students and others looking for an introduction to this extremely important case.

Rogers, “The Child Cases: How America’s Religious Exemption Laws Harm Children”

Next month, the University of Massachusetts Press will publish The Child Cases: How America’s Religious Exemption Laws Harm Children by Alan Rogers (Boston College). The publisher’s description follows.

When a four-year-old California girl died on March 9, 1984, the state charged her mother with involuntary man-slaughter because she failed to provide her daughter with medical care, choosing instead to rely on spiritual healing. During the next few years, a half dozen other children of Christian Science parents died under similar circumstances. The children s deaths and the parents trials drew national attention, highlighting a deeply rooted, legal/political struggle to define religious freedom.

Through close analysis of these seven cases, legal historian Alan Rogers explores the conflict between religious principles and secular laws that seek to protect children from abuse and neglect. Christian Scientists argued often with the support of mainline religious groups that the First Amendment s free exercise clause protected religious belief and behavior. Insisting that their spiritual care was at least as effective as medical treatment, they thus maintained that parents of seriously ill children had a constitutional right to reject medical care.

Congress and state legislatures confirmed this interpretation by inserting religious exemption provisos into child abuse laws. Yet when parental prayer failed and a child died, prosecutors were able to win manslaughter convictions by arguing as the U.S. Supreme Court had held for more than a century that religious belief could not trump a neutral, generally applicable law. Children s advocates then carried this message to state legislatures, eventually winning repeal of religious exemption provisions in a handful of states.

The Weekly Five

This week’s collection of new pieces on SSRN includes an article on Catholic objections to Legal Realism by John Breen and Lee Strang;  a history of Just War theory by Robert Delahunty; an article by Zoe Robinson on the definition of “religious institutions” in connection with the Contraception Mandate litigation; and two essays by Micah Schwartzman on religious and secular convictions.

1. John M. Breen (Loyola University Chicago) and Lee J. Strang (University ofToledo), The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism. This article examines the critique of Legal Realism by Catholic scholars in the 1930s and 1940s. Legal historians have unfairly neglected this critique, the authors say, which was both profound and systematic. Catholic legal thinkers who objected to Realism drew on the worldwide revival of Neo-Scholastic philosophy taking place at the time.

2. Robert J. Delahunty (University of St. Thomas), The Returning Warrior and the Limits of Just War Theory. In this paper, Delahunty traces the history of the Just War tradition in Christian thought. Before the twelfth-century Papal Revolution, he writes, the Catholic Church treated the subject in a pastoral, unsystematic way. Soldiers who had killed in wartime were typically required to do penance. In the Papal Revolution, however, the Church transformed itself into an early modern state, equipped with a military force. “As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.”

3. Zoe Robinson (DePaul University), The Contraception Mandate and the Forgotten Constitutional Question. Robinson maintains that arguments about the ACA”s Contraception Mandate often neglect the first question: whether the claimants are “religious institutions” that merit constitutional protection. She develops a list of four factors that identify such institutions: “(1) recognition as a religious institution; (2) functions as a religious institution; (3) voluntariness; and (4) privacy-seeking.” Applying these factors, she argues that religious universities qualify as religious institutions, but not for-profit businesses or religious interest groups.

4. Micah Schwartzman (University of Virginia), Religion as a Legal Proxy. In a response to Andrew Koppelman, Schwartzman argues that affording legal protection to religion as such unfairly discriminates against people with non-religious commitments. He argues that the concept of religion should be expanded to include secular claims of conscience. A wide range of international and domestic laws already do so, he points out. Against the backdrop of these laws, the First Amendment’s singling out of religion “feels somewhat antiquated.”

5. Micah Schwartzmann (University of Virginia), Religion, Equality, and Public Reason. This is a review of Ronald Dworkin’s posthumous work, Religion without God, in which Dworkin argues that, as a moral matter, both religious and non-religious convictions deserve legal protection. Schwartzman agrees, but argues that Dworkin unfortunately resisted using the concept of public reason, familiar from the work of John Rawls and others. Schwartzman believes that reliance on public reason is “inevitable” for those, like Dworkin, “who accept that believers and nonbelievers deserve equal respect for their competing and conflicting views.”

Movsesian on Dworkin

For those interested, my review of Ronald Dworkin’s last work, Religion without God, appears in the current edition of Religion and Human Rights. The link is here; subscription required, I’m afraid!

Conference on Hobby Lobby (March 24)

Georgetown’s Berkley Center and Baylor’s Institute for Studies of Religion will host a conference on the Hobby Lobby case on March 24 at the Willard Hotel in Washington, DC:

Is religious freedom good for business? Can religious liberty aid economic development, or help reduce poverty? What are the limits of religious freedom? Under the law, are for-profit businesses entitled to the exercise of that right in the United States? Does the HHS contraceptive mandate under the Affordable Care Act restrict the religious freedom of businesses? What are the legal, economic, and political implications of the answer to that question?

On March 24, the day before Supreme Court oral arguments on the Hobby Lobby case, the Religious Freedom Project at Georgetown University’s Berkley Center for Religion, Peace & World Affairs will co-sponsor a half-day conference on these and related questions. The conference will announce a new partnership between the Religious Freedom Project and Baylor University’s Institute for Studies of Religion, the co-sponsor of the event. The conference will begin with an “On Topic” keynote conversation between Baylor University President and Chancellor, Judge Ken Starr, and Harvard University Law Professor, Alan Dershowitz.

Details are here.

Hamburger on “Equality and Exclusion”

Philip Hamburger has this short piece, which distills arguments that he makes in this very interesting article. I highly recommend both. The abstract of the long piece and a few quick highlights:

Religious Americans are substantially excluded from the political process that produces laws, and this prompts sobering questions about the reality of religious equality. Put simply, political exclusion threatens religious equality.

The exclusion is two-fold. It arises partly from the growth of administrative power, which leaves Americans, including religious Americans, no opportunity to vote for or against their administrative lawmakers. It also arises from section 501(c)(3) of the Internal Revenue Code. As a result of this section, even when law is made in Congress (or an elected state legislature), religious organizations are restricted in their freedom to petition and to campaign for or against their lawmakers. There thus is a broad exclusion of religious Americans and their organizations from the political process that shapes lawmaking, and Americans thereby have lost essential mechanisms for persuading their lawmakers to avoid burdening their religious beliefs.

Religious liberty thus comes with an unexpected slant. Courts blithely assume that America offers a flat or even legal landscape — a broad and equitable surface on which all Americans can participate equally, regardless of their religion. The underlying exclusion, however, tilts the entire game, so that apparently equal laws actually slant against religion. What is assumed to be a flat and natural landscape turns out to be an artificially tilted game.

The conceptual framing of religious liberty therefore needs to expanded. The central conceptual problem for the free exercise of religion is usually understood as the choice between exemption and equality — the choice between a freedom from equal laws, on account of one’s religion, and a freedom under equal laws, regardless of one’s religion. The conceptual problem, however, turns out to be more complicated. In addition to the constitutional choice between exemption and equality, one must also consider the role of exclusion.

Of course the political exclusion of Americans as a result of the growth of the administrative state would not affect only religious Americans, and Philip recognizes this in the paper. But his particular focus is on the political exclusions that the administrative process has worked on those with religious convictions–and particularly on those whose religious convictions run contrary to or are in tension with the commitments of those in political power.  “Those who are sailing with prevailing winds, theological and political, do not suffer much from the exclusion.”

The argument about section 501(c)(3) is particularly interesting. As is well-known, this provision offers a kind of deal to religious, educational, and charitable organizations: so long as you do not campaign and advocate for political persons and causes, the state will not tax you. The common justification for the imposition of these constraints is that they are merely conditions on spending, but Philip argues here (as he has before) that limits on government power cannot be waived by consent–”private consent cannot enlarge constitutional power.” Constitutional rights are not “tradable commodities.” So the government cannot cut the deal it has cut in section 501(c)(3); it has no power to do so. Philip also questions the idea that exemptions are the same as expenditures for purposes of the spending power. “If refraining from taxing amounted to spending, then all Americans continually would be recipients of government largesse, for the government might have taxed them at a higher rate, and the decision not to impose the higher rate would be a tax expenditure.” If that were true, the government could apply 501(c)(3) against all Americans.

The idea here is that the reason not to tax churches and religious organizations is not that they made a deal with the government in exchange for which they are get the privilege of an exemption. The reason not to tax them is that taxes are not proper as against organizations whose principal mission is nonprofit. Exemptions here are merely mechanisms for recognizing that a tax is inappropriate for organizations that ordinarily have no income. Philip then takes aim at the various justifications for the partial political exclusion worked by 501(c)(3)–that the restriction is “not draconian,” that allows other avenues for religious groups to participate in the political process (the Russian Doll analogy to what is permitted by 501(c)(4) was particularly effective), the ‘we need a mechanism to stop tax deductible political contributions’ claim–arguing that none of them is sufficient to counter the constitutional problems.

Here’s a thought experiment in the piece: suppose the government attempted to apply 501(c)(3 restrictions to professors. Professors are supposed to be disinterested observers, so the government decides to make a distinction between academics and politics. Therefore, as professors (as opposed to as private individuals), they cannot engage in any campaigning or substantial petitioning. After all, professors benefit from a whole lot of federal spending on their students and their univerisities, so it’s perfectly ok to condition federal aid to universities on the absence of political participation of various kinds by professors. And, anyway, if they were true academics, they wouldn’t engage in politicking anyway. I suspect many would think this quite absurd. And as Philip says, “[t]he larger constitutional point is that the reasons for suppression are plentiful, but this does not mean that they make the suppression constitutional.”