- Falk, “The German Jews in America: A Minority within a Minority”
- El-Gallal, “Islam and the West: The Limits of Freedom of Religion”
- The Weekly Five
- Confino, “A World Without Jews”
- Subramanian, “Nation and Family”
- Werth, “The Tsar’s Foreign Faiths”
- Ferrari & Benzo (eds.), “Between Cultural Diversity and Common Heritage”
- Around the Web This Week
- Bilgrami, “Secularism, Identity, and Enchantment”
- Tarango, “Choosing the Jesus Way: American Indian Pentecostals and the Fight for the Indigenous Principle”
Tag Archives: Supreme Court
With Thanksgiving weekend coming to an end, it seems like a good time to share a few words about Town of Greece v. Galloway, the legislative prayer case on which the Supreme Court heard oral argument early last month, on November 6.
I have a special personal interest in this case because I was a law clerk to William J. Brennan, Jr. when the Supreme Court decided Marsh v. Chambers, the case that first upheld the practice of legislative prayer on essentially historical grounds, and worked on Justice Brennan’s dissent. The dissent argued, compellingly I think, that official legislative prayers violated the Establishment Clause despite their long history in both Congress and state legislatures. But my favorite passage in the dissent, and the one possibly most relevant to the Town of Greece case, is this:
[L]egislative prayer, unlike mottos with fixed wordings, can easily turn narrowly and obviously sectarian. I agree with the Court that the federal judiciary should not sit as a board of censors on individual prayers, but, to my mind, the better way of avoiding that task is by striking down all official legislative invocations.
More fundamentally, however, any practice of legislative prayer, even if it might look “nonsectarian” to nine Justices of the Supreme Court, will inevitably and continuously involve the State in one or another religious debate. Prayer is serious business — serious theological business — and it is not a mere “acknowledgment of beliefs widely held among the people of this country” for the State to immerse itself in that business. Continue reading
At Constitution Daily, Hofstra’s Ron Colombo, a past guest here at CLR Forum, has a helpful essay on the contraception mandate cases on which the Court granted cert yesterday. Ron argues that for-profit corporations like Hobby Lobby, the respondent in one of the cases, have standing to raise a free exercise claim:
Hobby Lobby … is owned and operated by a family deeply devoted to its Christian faith. The company’s statement of purpose commits it to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” Unlike so many companies today that put profits over people, Hobby Lobby pledges to “[s]erving [its] employees and their families by establishing a work environment and company policies that build character, strengthen individuals, and nurture families.” . . .
So the question becomes: does the First Amendment provide the protections necessary for businesses such as Hobby Lobby to exist? Or, to frame things differently: are individuals free under the U.S. Constitution to follow the dictates of their consciences into the private sector, and to start businesses with practices that are religiously informed? Businesses around which workers, customers, and investors with shared religious values and beliefs can coalesce?
As should become readily apparent, the recognition of “corporate free exercise rights” ultimately redounds to the protection of individuals. For it is through religiously expressive corporations that many people wish to live out their faiths. Can it really be the case that the Constitution effectively consigns these individuals to careers and options only in the world of non-profits? Is the most significant modern means of harnessing private initiative, the business corporation, somehow carved out from the First Amendment’s religious liberty protections?
You can read Ron’s essay here.
The Supreme Court has granted certiorari on two cases involving for-profit corporations which brought claims pursuant to the Constitution and the Religious Freedom Restoration Act against the federal government’s contraception mandate (which is part of the Patient Protection Affordable Care Act). The two cases that the Court agreed to hear were the Hobby Lobby case out of the Tenth Circuit and the Conestoga Wood case out of the Third Circuit.
Note that these cases solely involve the issue of for-profit corporations. They do not concern the question of the “accommodation” granted to certain religious non-profit corporations which the government has decided are not exempt from the mandate. As this breakdown indicates, the Tenth Circuit found en banc that the corporation had free exercise rights which had been violated (it did not decide the issue of the rights of the individual owners), while the Third Circuit panel rejected all claims. One last note of interest (for now): neither of these corporations is owned by Catholics. Hobby Lobby’s ownership is Evangelical, while Conestoga Wood Specialties’ ownership is Mennonite.
Mark and I have recorded a podcast discussing Town of Greece v. Galloway, the legislative prayer case just argued at the Supreme Court, in the Center’s first in a planned series of podcasts on law and religion cases and issues.
We tried to be fairly complete in our discussion of the case, and I think this podcast is particularly useful for students and others interested in an introduction to the issue of legislative prayer and in some fairly detailed analysis of and commentary about the oral argument.
Religion without God is the late Ronald Dworkin’s last work, published posthumously in September. It’s a short book; a publisher’s note explains that Dworkin planned to expand the work greatly before he fell ill. Still, the book is important. Not that it says anything especially new. As far as I can tell, in fact, the book repeats familiar, even ancient, objections to the idea of a personal God and proposes a legal definition of religion that is decades old. Religion without God is important, rather, because it reflects the worldview of a celebrated liberal philosopher sympathetic to religion but unable to believe in God, and because it reflects an increasingly important strategy in the Left’s battle to minimize protection for traditional religion.
Religion without God has two main points, one about the nature of religion and the other about religious freedom. In the first part of the book, Dworkin argues that religion, properly understood, does not require a belief in God. Religion requires only a belief in objective meaning and a sense of wonder at the sublime quality of the universe. Many atheists believe in objective meaning and view the universe with a sense of wonder, Dworkin writes, and are thus, in their way, “religious.” Dworkin hopes this insight will dampen the conflict between atheists and believers in contemporary Western culture. Both sides agree on the essential things, he argues; disagreement on the existence of God is only a minor detail.
Take objective moral values, for instance. Many theists believe moral values depend on the existence of a personal God. If God had not told us, or implanted the knowledge in us, we would not know what is right and what is wrong. This is logically incorrect, Dworkin says. Objective values must exist independently of God’s will. Otherwise, God could make conduct ethical simply by commanding it, and that would be entirely arbitrary. What if God ordered you to murder your family members? Would that make the murders right? No, the murders would be wrong, whatever God told you. So God is superfluous to moral reasoning–no more than a possibly helpful guide. Once they recognize this, Dworkin argues, believers will see that their differences with atheists–at least with “religious atheists”–are insignificant.
This argument tracks the famous Euthyphro dilemma, to which Dworkin alludes at the very end of his book. Christianity–I don’t know about other traditions–has an answer to this dilemma, though Dworkin dismisses it rather summarily. The Christian answer is this: the Euthyphro dilemma assumes that God is a being like any other in the universe, subject to the same logical disconnect between fact and value. But God, in Christian understanding, is not like that. Unlike human beings, God is not born into a preexisting universe. He is eternal. As Peter Leithart writes, no gap exists between God and objective reality, including objective moral reality. In the Christian conception, God is objective moral reality.
This is all pretty complicated. But one doesn’t have to follow the entire argument to recognize that theists are unlikely to be persuaded that a belief in God is optional–and that atheists are unlikely to be persuaded that their disagreement with theists is only minor. Dworkin himself recognizes that his irenic project is likely to fail, which gives Religion without God a melancholy tone. He apparently believed it important to try to narrow the conceptual gap between theism and atheism, however, in order to advance a legal project: expanding the legal definition of religion to include non-theistic, ethical convictions.
Here’s the argument. If religion is “deeper” than conventional theism, as Dworkin insists, protection for religious exercise must, in fairness, extend to non-theistic belief systems as well. In fact, protection should extend to any passionately held ethical conviction. This observation isn’t new. In the Draft Act cases decades ago, the Supreme Court indicated that religion could include deeply-held, non-theistic beliefs. But extending “religion” in this way creates a serious practical problem. In our legal system, religion enjoys a specially-protected status. In many instances, government accommodates citizens’ religious beliefs by granting exemptions from otherwise applicable legal requirements. If religion means all deeply-held ethical convictions, how can the state possibly accommodate it? Chaos would result.
Here Dworkin makes his final move. Because of the practical impossibility of accommodating religion, the state should not bother to try. We should abandon “the idea of a special right to religious freedom with its high hurdle of protection,” he writes, in favor of a more general right to “ethical independence.” The payoff? “If we deny a special right to free exercise of religious practice, and rely only on the general right to ethical independence, then religions may be forced to restrict their practices so as to obey rational, nondiscriminatory laws that do not display less than equal concern for them.” Religion, in other words, will take a back seat to progressive politics. A general right of ethical independence, he writes, would restrict public religious displays, unless the displays were genuinely drained of all religious meaning, and would mandate “the liberal position” on same-sex marriage, abortion, and gender equality in marriage.
Dworkin’s definition of religion thus seems tendentious, a way to dilute religion so as to minimize the potential for conflict with the progressive state. This is not surprising. Traditional religion opposes many of the Left’s priorities; for the Left to succeed, it must continue to marginalize traditional religion. And Dworkin’s argument that religion as such does not merit special protection is very much in the air today. Prominent law professors like Brian Leiter and Micah Schwartzman make versions of this argument, for example. In the Hosanna-Tabor case, the Obama Administration maintained that religious freedom, as such, had nothing to do with a church’s decision to fire its minister.
So far, courts appear to be rejecting the religion-isn’t-special argument (though, it must be said, the Court’s 1990 decision in Employment Division v. Smith, the peyote case, gives the argument rather more traction than it should possess). In Hosanna-Tabor, for example, the Supreme Court rejected the Obama Administration’s argument by a vote of 9-0. You never know how future courts will see things, though. Dworkin’s last book suggests that the fight over the special status of religion in American law is only beginning.
Via the very good Josh Blackman, I learn that Hobby Lobby, the corporation that successfully challenged the contraception mandate before the Tenth Circuit, is supporting the government’s petition for certiorari. As Professor Blackman says, “You don’t see this too often.” The formidable Paul Clement to argue for Hobby Lobby.
This November, The Catholic University of America Press will publish The American Constitution and Religion by Richard J. Regan. The publisher’s description follows.
The Supreme Court’s decisions concerning the first amendment are hotly debated, and the controversy shows no signs of abating as additional cases come before the court. Adding much-needed historical and philosophical background to the discussion, Richard J. Regan reconsiders some of the most important Supreme Court cases regarding the establishment clause and the free exercise of religion. Governmental aid to church-affiliated elementary schools and colleges; state-sponsored prayer and Bible reading; curriculum that includes creationism; tax exemption of church property; publicly sponsored Christmas displays—these and other notable cases are discussed in Regan’s chapters on the religious establishment clause. On the topic of the free-exercise clause, Regan considers such subjects as the value of religious freedom, as well as the place of religious beliefs in public schooling and government affairs. Important cases concerning conscientious objection to war, regulation of religious organizations and personnel, and western traditions of conscience are also examined. This book, written for students of law, political science, and religion, presents the relevant case law in chronological order. The addition of the historical context and Regan’s philosophical discussion enhances our understanding of these influential cases.
In a richly detailed new article, Professors Josh Blackman (South Texas) and Brian Frye (Kentucky), together with Michael McCloskey of the Harlan Institute for Constitutional Studies, discuss the constitutional jurisprudence of Justice John Marshall Harlan by exploring his turn-of-the-century lectures at what was then the Columbian College of Law (now GW). My old students will remember Justice Harlan for, among other opinions, his famous dissent in Plessy v. Ferguson. The paper is very interesting on many fronts, but the authors’ reconstruction of Harlan’s nationalist providentialism (Harlan himself, the authors write, was a “devout Presbyterian”) really caught my eye (particularly in light of a paper I am now working on involving a contemporary judge with not entirely dissimilar views):
In his lectures, Justice Harlan expressed a strong belief in American exceptionalism and in the role of providence in America’s success. He saw a tight connection between the rule of law and religion, and considered them both essential to America’s prosperity. For Harlan, constitutional liberty consisted of the common law rights of Englishmen, secured by the Constitution and realized by the Court. The primary merit of a written Constitution was to render immutable traditional common law rights. And those common law rights were secured and realized only by special providences, indelibly marked by blood and fire. Harlan argued that the Fourteenth Amendment incorporated the Bill of Rights against the states. He believed that the Constitution expressed the “providential” purpose of the United States. Discussing the clause that requires that officers must swear to uphold the Constitution, Harlan asks, “Is there any country on the Earth that has in its statutes or laws a provision like that? Not one.” ….
Harlan’s republicanism committed him to popular sovereignty, civic virtue, and self-governance. Other Justices saw the rights guaranteed by the Constitution as abstract, derived from reason and practicality. For some, like Holmes and Brandeis, it meant legal realism. By contrast, Harlan saw constitutional rights as elements of a shared culture, and the extension of them to the states through the Constitution as a means of promoting and preserving national unity. By affirming a common American heritage, rooted in “Anglo-Saxon” liberties, the Court, through the Bill of Rights and the constitutional privileges and immunities it protected, could help create a unified nation, one with the ideological strength to overcome sectional and racial differences. Harlan’s lectures were one tool for accomplishing this goal.
This August, Stanford University Press will publish The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars, written by Joshua C. Wilson (University of Denver). The publisher’s description follows.
The U.S. Supreme Court decision in Roe v. Wade stands as a historic victory for abortion-rights activists. But rather than serving as the coda to what had been a comparatively low-profile social conflict, the decision mobilized a wave of anti-abortion protests and ignited a heated struggle that continues to this day. Picking up the story in the contentious decades that followed Roe, The Street Politics of Abortion is the first book to consider the rise and fall of clinic-front protests through the 1980s and 1990s, the most visible and contentious period in U.S. reproductive politics. Joshua Wilson considers how street level protests lead to three seminal Court decisions—Planned Parenthood v. Williams, Schenck v. Pro-Choice Network of Western N.Y., and Hill v. Colorado. The eventual demise of street protests via these cases taught anti-abortion activists the value of incremental institutional strategies that could produce concrete policy gains without drawing the public’s attention. Activists on both sides ultimately moved—often literally—from the streets to fight in state legislative halls and courtrooms.
At its core, the story of clinic-front protests is the story of the Christian Right’s mercurial assent as a force in American politics. As the conflict moved from the street, to the courts, and eventually to legislative halls, the competing sides came to rely on a network of lawyers and professionals to champion their causes. New Christian Right institutions—including Pat Robertson’s American Center for Law and Justice and the Regent University Law School, and Jerry Falwell’s Liberty University School of Law—trained elite activists for their “front line” battles in government. Wilson demonstrates how the abortion-rights movement, despite its initial success with Roe, has since faced continuous challenges and difficulties, while the anti-abortion movement continues to gain strength in spite of its losses.