Tag Archives: Religious Freedom

Human Rights and the Pan-Orthodox Council

Last week, the Eastern Orthodox Church, a communion of 14 autocephalous, national churches with roots in the Byzantine Christian tradition, concluded an historic synod on the island of Crete. Decades in the planning, the Pan-Orthodox Council, known officially as the Holy and Great Council, was meant to gather patriarchs from all 14 churches for deliberation on a series of issues in contemporary church life, including marriage, fasting, the Orthodox “Diaspora,” and relations with non-Orthodox Christians. At the last minute, four national churches, including the largest, the Russian Orthodox Church, declined to attend—a fact which, notwithstanding the protests of the Council’s supporters, seems as a practical matter to undercut the Council’s significance. Nonetheless, the Council is noteworthy for what it had to say on several topics, including the persecution of Mideast Christians and human rights in general. On the latter, the Council’s documents reveal, once again, important differences with the consensus understanding in the West.

First, though, a word about the churches that stayed away. From what I can tell, most (but not all) of these churches demurred in part because of concerns about what the Council might say about relations with other Christians. Ecumenism occasions much dispute within the Eastern Orthodox Church. Some, especially in monastic communities, believe that ecumenism implies that Orthodoxy has abandoned its claim to represent the one true church. Even referring to non-Orthodox Christians as “churches” can cause controversy.

In its declaration, “Relations of the Orthodox Church with the Rest of the Christian World,” the Council adopted (with all respect) a rather lawyerly solution. Yes, the document indicates, there is only one true church, and that is the Eastern Orthodox Church. But “the Orthodox Church accepts the historical name of other non-Orthodox Christian Churches and Confessions that are not in communion with her and believes that her relations with them should be based on the most speedy and objective clarification possible of the whole ecclesiological question.” In other words, the Council accepts that, historically, other Christian communions have been called “churches” (some of them, even, have been called “Orthodox Churches”!) and will work to clarify the situation. It’s an irenic statement. We’ll see how it is received, especially by those within the Orthodox fold who do not think clarification necessary.

Notwithstanding this hedging on the “ecclesiological question,” the Council did go out of its way to decry the persecution of Christians, Orthodox and non-Orthodox, in the Mideast today. In fact, it condemned the persecution of other religious minorities in the Mideast as well. The encyclical issued at the conclusion of the Council states, “The Orthodox Church is particularly concerned about the situation facing Christians, and other persecuted ethnic and religious minorities in the Middle East. In particular, she addresses an appeal to governments in that region to protect the Christian populations – Orthodox, Ancient Eastern and other Christians – who have survived in the cradle of Christianity. The indigenous Christian and other populations enjoy the inalienable right to remain in their countries as citizens with equal rights.” The Council refers to two Christian bishops, one Eastern and the other Oriental Orthodox, who were abducted two years in Syria and whose whereabouts are still unknown.

The Council’s official documents also speak about human rights generally, demonstrating, once again, how important the idiom is in contemporary debate. Today, everyone from secular lawyers to church patriarchs declares a commitment to the ideal of “human rights,” based in the concept of “human dignity.” It is the price of admission to polite discussion. But the Council’s documents reveal, once again, how differently people understand those terms. In today’s human rights discourse, people use the same words, but mean very different things.

The Council’s official documents are not always so easy to follow, but, taken together, they stand for these propositions: human dignity derives from the fact of divine creation; human freedom, correctly understood, is the freedom to progress toward spiritual perfection in Christ; and a secular understanding of human rights, which promotes Continue reading

Curtis, “The Production of American Religious Freedom”

In August, New York University Press will release The Production of AmerThe Production of American Religious Freedomican Religious Freedom, by Finbarr Curtis (Georgia Southern University). The publisher’s description follows:

Americans love religious freedom. Few agree, however, about what they mean by either “religion” or “freedom.” Rather than resolve these debates, Finbarr Curtis argues that there is no such thing as religious freedom. Lacking any consistent content, religious freedom is a shifting and malleable rhetoric employed for a variety of purposes. While Americans often think of freedom as the right to be left alone, the free exercise of religion works to produce, challenge, distribute, and regulate different forms of social power.
The book traces shifts in the notion of religious freedom in America from The Second Great Awakening, to the fiction of Louisa May Alcott and the films of D.W. Griffith, through William Jennings Bryan and the Scopes Trial, and up to debates over the Tea Party to illuminate how Protestants have imagined individual and national forms of identity. A chapter on Al Smith considers how the first Catholic presidential nominee of a major party challenged Protestant views about the separation of church and state. Moving later in the twentieth century, the book analyzes Malcolm X’s more sweeping rejection of Christian freedom in favor of radical forms of revolutionary change. The final chapters examine how contemporary controversies over intelligent design and the claims of corporations to exercise religion are at the forefront of efforts to shift regulatory power away from the state and toward private institutions like families, churches, and corporations. The volume argues that religious freedom is produced within competing visions of governance in a self-governing nation.

Hanson, “City of Gods”

In July, the Oxford University Press will release “City of Gods: Religious Freedom, Immigration, and Pluralism in Flushing, Queens,” by R. Scott Hanson (University of Pennsylvania).  The publisher’s description follows:

Known locally as the birthplace of American religious freedom, Flushing, Queens, in New York City is now so diverse and densely populated that it has become a 9780823271597microcosm of world religions. City of Gods explores the history of Flushing from the colonial period to the aftermath of September 11, 2001, spanning the origins of Vlissingen and early struggles between Quakers, Dutch authorities, Anglicans, African Americans, Catholics, and Jews to the consolidation of New York City in 1898, two World’s Fairs and postwar commemorations of Flushing’s heritage, and, finally, the Immigration Act of 1965 and the arrival of Hindus, Sikhs, Muslims, Buddhists, and Asian and Latino Christians.

A synthesis of archival sources, oral history, and ethnography, City of Gods is a thought-provoking study of religious pluralism. Using Flushing as the backdrop to examine America’s contemporary religious diversity and what it means for the future of the United States, R. Scott Hanson explores both the possibilities and Continue reading

“The Encyclopedia of Law and Religion” (Robbers et al, eds.)

In June, Brill Publishing will release “The Encyclopedia of Law and Religion” edited by Gerhard Robbers (Minister of Justice for Consumer Protection of Rhineland-Palatinate (Germany)), and W. Cole Durham, Jr. (Brigham Young University).  The publisher’s description follows:

In recent years, issues of freedom of religion or belief and state-religion relations have become increasingly important worldwide. While some works have treated 54747such issues regionally, the Encyclopedia of Law and Religion is unique in its breadth, covering all independent nations and jurisdictions as well as the major international organizations, treating the relation between law and religion in its various aspects, including those related to the role of religion in society, the relations between religion and state institutions, freedom of religion, legal aspects of religious traditions, the interaction between law and religion, and other issues at the junction of law, religion, and state.

Offered online and in five print volumes – Africa, the Americas, Asia, Europe, Oceania, Special Territories, International Organizations and Index – this work is a valuable resource for religious and legal scholars alike.

More on Yesterday’s Decision in Zubik

Marc has posted a rundown of yesterday’s decision in Zubik v. Burwellthe ACA case. I’d like to add just a few quick observations.

Some commentators, including the New York Times, have decried the result as the inevitable consequence of having an eight-member Court, which prevents the formation of five-person majorities in close cases. If only the Senate had confirmed Merrick Garland, we wouldn’t be in fixes like this. But it’s worth noting that the Court’s opinion yesterday was unanimous. All eight Justices joined it in full. If Merrick Garland had been on the Court, it likely would have been 9-0. In fact, an unsigned, per curiam opinion like yesterday’s traditionally signals that the Court does not see a decision as particularly significant or controversial.

Now, it’s true that Justice Sotomayor, joined by Justice Ginsburg, wrote a separate concurrence. But, in Supreme Court practice, a concurrence signals that the author agrees with the Court’s reasoning and wishes only to offer further support or highlight certain aspects of the case. And that’s what Justice Sotomayor did here. She went out of her way to highlight the fact that the Court was not ruling on the merits of the case. I’m not sure that was entirely necessary; the Court itself expressly said it was not ruling on the merits. But, anyway, her writing separately doesn’t reflect disagreement with the Court’s reasoning.

So the Court does not seem to have been divided at all. Now, it’s possible, as some speculate, that the Court did a quick vote after oral argument, saw that there would be no clear majority on the merits, and reached for a compromise that would preserve the Court’s credibility while allowing further consideration down the road, when the Court is back to nine members. But that’s more than we can know right now, and, at least to me, there seems another, more likely explanation for the Court’s unanimity. The Court determined that the whole dispute may well be unnecessary.

After oral argument and supplementary briefing in March, it became clear to the Court that there might be a way out of the conflict the lower courts had missed. It might be possible for employees to receive coverage for contraceptives without requiring employers to file the so-called “opt out form” — the form to which the petitioners had objected on religious grounds. As the Court explained:

Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

In other words, the parties might be able to reach a settlement that would satisfy everyone. The Supreme Court is not the place to hammer out such a settlement, though, so the Court remanded the dispute to the lower courts, which, it said, were in a position to “allow the parties sufficient time to resolve any outstanding issues between them.” (Hint, hint). In that event, the dispute would be moot–and it is hornbook law that courts, including the Supreme Court, do not decide moot issues. As one commentator observed, what the Court is saying is, “We don’t need to decide this case right now. The parties should be able to work it out for themselves.”

Although the Court did not rule on the merits, it’s hard not to see this as a loss for the Obama Administration. A determination that the dispute may not have been necessary at all is, implicitly, a judgment on the Administration’s strategy in these cases. The Administration has taken a very hard line on the Contraception Mandate, harder than it needed to in order to achieve its stated goal of providing cost-free contraceptive coverage for women. Two terms ago, in Hobby Lobby, the Court ruled that the Administration could reach that goal without requiring for-profit corporations with religious objections to cover contraceptives in their health plans. Now, the Court has suggested the Administration can reach that goal without requiring religious non-profits like the Little Sisters to violate their religious convictions. So why did the Administration take such a hard line? Why didn’t it accommodate the concerns of people with religious objections to the mandate–an extremely small group, it must be conceded–especially as accommodation wouldn’t have changed the ultimate outcome? It’s almost as though the Administration had goals other than women’s health in mind.

Conference: 2016 Religious Freedom Annual Review

 BYU Conference
Registration is now open for the 2016 Religious Freedom Annual Review scheduled for July 7-8,  2016 (with a discount available through May 15). Hosted by Brigham Young University’s International Center for Law and Religion Studies, the Annual Review will be open to both lawyers and non-lawyers who are interested in religious freedom challenges in the United States and around the world. Additional information can be found here.

USCIRF Issues Annual Report

The U.S. Commission on International Religious Freedom (USCIRF) has released its annual report, finding that that religious freedom is under “serious and sustained assault” across the globe. The report, which covers the period from February 1, 2015-February 29, 2016, highlights religious freedom violations in more than 30 countries, including China, Sudan, North Korea, Nigeria, Pakistan, Iraq and Syria. It cites abuses by both state and non-state entities.

Survey Finds a Majority Agree with the Little Sisters of the Poor’s Fight Against the HHS Mandate

On April 19, 2016, the Catholic News Agency reported on the results of a new Marist Poll survey relating to the Little Sisters of the Poor’s pending litigation before the U.S. Supreme Court. The article begins as follows:

A new survey says most Americans think the Obama administration’s federal contraception mandate is unfair to the Little Sisters of the Poor and other religious groups defending themselves before the U.S. Supreme Court.

little sisters

About 53 percent of Americans said the process required by the government is “unfair,” while only 32 percent did not, according to a new Marist Poll commissioned by the Knights of Columbus.

The federal government has exempted many other organizations’ employee health care plans from a requirement to provide contraception and drugs that can produce abortions. But it has no exemption for the Little Sisters of the Poor, who help run houses to care for the elderly poor.

The full text of the article appears here.

Eberstadt, “It’s Dangerous to Believe: Religious Freedom and Its Enemies”

In June, Harper Collins will release “It’s Dangerous to Believe: Religious Freedom and Its Enemies” by Mary Eberstadt. The publisher’s description follows:

Mary Eberstadt, “one of the most acute and creative social observers of our time,” (Francis Fukuyama) shines a much-needed spotlight on a disturbing trend in American society: discrimination against traditional religious belief and believers, who are being aggressively pushed out of public life by the concerted efforts of militant secularists.

In It’s Dangerous to Believe, Mary Eberstadt documents how people of faith—especially Christians who adhere to traditional religious beliefs—face widespread discrimination in today’s increasingly secular society. Eberstadt details how recent laws, court decisions, and intimidation on campuses and elsewhere threaten believers who fear losing their jobs, their communities, and their basic freedoms solely because of their convictions. They fear that their religious universities and colleges will capitulate to aggressive secularist demands. They fear that they and their families will be ostracized or will have to lose their religion because of mounting social and financial penalties for believing. They fear they won’t be able to maintain charitable operations that help the sick and feed the hungry.

Is this what we want for our country?

Religious freedom is a fundamental right, enshrined in the First Amendment. With It’s Dangerous to Believe, Eberstadt calls attention to this growing bigotry and seeks to open the minds of secular liberals whose otherwise good intentions are transforming them into modern inquisitors. Not until these progressives live up to their own standards of tolerance and diversity, she reminds us, can we build the inclusive society America was meant to be.

Stewart, “Chinese Muslims and the Global Ummah”

In June, Routledge will release “Chinese Muslims and the Global Ummah: Islamic Revival and Ethnic Identity Among the Hui of Qinghai Province” by Alexander Stewart (University of California, San Diego). The publisher’s description follows:

The global spread of Islamic movements and the ascendance of a Chinese state that limits religious freedom have aroused anxieties about integrating Islam and protecting religious freedom around the world. Focusing on violent movements like the so-called Islamic State and Uygur separatists in China’s Xinjiang Province threatens to drown out the alternatives presented by apolitical and inwardly focused manifestations of transnational Islamic revival popular among groups like the Hui, China’s largest Muslim minority.

This book explores how Muslim revivalists in China’s Qinghai Province employ individual agency to reconcile transnational notions of religious orthodoxy with the materialist rationalism of atheist China. Based on a year immersed in one of China’s most concentrated and conservative urban Muslim communities in Xining, the book puts individuals’ struggles to navigate theological controversies in the contexts of global Islamic revival and Chinese modernization. By doing so, it reveals how attempts to revive the original essence of Islam can empower individuals to form peaceful and productive articulations with secular societies, and further suggests means of combatting radicalization and encouraging interfaith dialogue.

As the first major research monograph on Islamic revival in modern China, this book will be of interest to students and scholars of Anthropology, Islamic Studies, and Chinese Studies.