It's summer, and a law prof's mind turns to thoughts of . . . self-promotion. I've posted on SSRN a paper I wrote, a few years ago, on tax-exempt religious institutions. The paper is called "A Quiet Faith? Taxes, Politics, and the Privatization of Religion." Here is the abstract:
The government exempts religious associations from taxation and, in return, restricts their putatively “political” expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well suited nor to be trusted with this kind of line-drawing. What’s more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion, i.e., that it is a “private” matterand of its proper place, i.e., in the “private” sphere, not “in politics”, it tempts believers and faith communities also to embrace this view. The result is a privatized faith, re-shaped to suit the vision and needs of government, and a public square evacuated of religious associations capable of mediating between persons and the state and challenging prophetically the government’s claims and conduct.
I wrote about this topic also, a few weeks ago, in USA Today ("Campaigning from the Pulpit? Why Not?).
I thought that this op-ed of mine, which appeared in the Daily Oklahoman on Sunday, May 21, might be of interest to others at MOJ:
By a 6-3 vote, the Oklahoma Supreme Court has established the dangerous precedent of disqualifying judges because of their religious affiliations.Last month, the Court told probate judge, Larry Jones, that he cannot hear the case of Oklahoma Baptist Homes for Children, et. al v. Donald Timberlake because the “circumstances and conditions surround[ing] the litigation” are such “that they might reasonably cast doubt and question” as to Jones’ ability to be impartial or at least they raise “the appearance of possible impropriety.”
What caused Oklahoma’s high court to question Judge Jones’ impartiality?After Timberlake lost his case and while it was on appeal, he discovered that Judge Jones had “received a Doctor of Divinity in 1993 and is a licensed Baptist minister.”Armed with this information, Timberlake asked Judge Jones to remove himself from the case.Jones declined in a five page written opinion pointing out that a) his doctorate was earned at “a non-Baptist affiliated, independent Bible college,” b) that he is licensed by “the Seventh Day Baptist Church of Texarkana, Ark.,” which “is independent and autonomous” and affiliated only with the Seventh Day Baptist General Conference, headquartered in Wisconsin,” c) that his church “has neither association with nor fellowship with the Southern Baptist Convention or those churches or members known as “Southern Baptists,” and d) he has never been “affiliated in any manner with Oklahoma Baptist Homes for Children Inc. or Trinity Baptist Church of Oklahoma, Inc.”
Despite the fact that Judge Jones has absolutely NO connection, however remote, to the parties in the case, the Oklahoma Supreme Court ordered him to step aside.As a matter of judicial ethics this is a poor decision because no reasonable person who was informed of these facts would have any basis for doubting the judge’s impartiality.The danger of this opinion, however, strikes much deeper than a run-of-the-mill poorly reasoned judicial ethics opinion.
At its heart, the Oklahoma Court seems to be saying that religious people cannot be trusted to hear and fairly decide cases involving religious entities.At a minimum, the Court seems to be suggesting that a devout Baptist of any stripe cannot sit as a judge where another entity calling itself Baptist is involved.If the United States Supreme Court applied this standard to itself, over half of those Justices would have to disqualify themselves in any case involving the Catholic Church, Catholic Charities, a Catholic Hospital, or a Catholic University.
If the Oklahoma Court fails to reverse course, zealous advocates across the state will begin to probe the religious beliefs, the religious conduct, and the religious affiliations of judges they perceive as unfriendly.Does the Oklahoma Supreme Court really want to open this Pandora’s Box?In the future, will we determine judicial qualifications to hear particular cases by the amount tithed by the judge or whether the judge taught Sunday school or served on a church council or belongs to a church that has certain moral teachings at odds with the litigant?
The Oklahoma Court’s excessively broad view of judicial disqualification in this case looks like an infringement on Judge Jones’ First Amendment right to freedom of religion.Unless the Court is willing to apply this broad standard consistently – disqualifying Rotarians if one of the parties to a case or their close family members are Rotarians, for example – then the Court appears to be imposing an unconstitutional religious test for judges.Hopefully, the Court will see the error of its ways, allowing religious and non-religious judges alike to do their jobs unless there is some reasonable basis for disqualification.
I would like to follow up on Rick’s earlier posting of the Oregon federal district court case of John Doe v. the Holy See. It seems that Mr. Anderson, counsel for John Doe, has prevailed in convincing the court that the tort exception to the law of foreign sovereign immunity makes the Holy See vulnerable to civil suit. Judge Mosman’s Opinion and Order [Download Holy_See.pdf ] merit careful study. With the deepest and sincerest respect to the judge, I believe that he has the law wrong. Priestly and religious life are not constitutive of an employer-employee relationship. In my opinion, this is one of the errors made by the court in its conclusion. Rick is correct in asking for the assistance of canonists here. But if it is a correct assessment, I am sure many priests, brothers, sisters, and laity would be surprised to find themselves labeled as employees and agents of the Holy See. Within the judge’s decision lies a variety of mischiefs that I think the judge, Mr. Anderson, and many others do not intend. But, there they are. As I said, the judge’s decision requires a careful study taking into account the expanse to which his conclusions may affect international relations. In the meantime, the two trains to which I have alluded to in earlier postings continue running in opposite directions on the same track. But now, they have increased their speed, and I fear for the outcome.RJA sj
Curses! Today's Know Nothings have uncovered the Romish immigration - Reconquista plot. The "Pilgrim Covenant Church" reports:
Over the past few years, I have spent time pointing out that the Roman Catholic Church is aiding and abetting the criminal invasion of America from Mexico because the illegals are almost all Roman Catholics. That church/state which maintains political, diplomatic relationships with the UN, the EU, the Russian Federation, the Organization for the Liberation of Palestine, and 174 nations around the globe is working both legally and criminally on behalf of a movement, the goal of which is to bring as many Mexicans into America as possible so as to eventually take over a large chunk of our nation for Mexico. This multifaceted movement, made up of radical organizations such as La Raza (The Race), Aztlan, and MEChA, is called Reconquista (Reconquest).
The leadership of the Roman Catholic Church has a stake in Reconquista. The pope and his henchmen are looking to turn America, founded and still a Protestant country, into a Roman Catholic country. . . .
The Roman Catholic Church is determined to turn Protestant America into a Roman Catholic country, and her best bet to do that is to bring as many Catholics into our nation as possible.
And we would have gotten away with it, too, if it weren't for those meddling kids!
A federal judge ruled Wednesday that a sex abuse lawsuit against the Vatican can move forward with its claim that the Holy See bears responsibility for a priest who was transferred from city to city even though he was known to be a molester.
U.S. District Judge Michael Mosman said in his decision that there are exceptions to the Foreign Sovereign Immunity Act, under which the Vatican is typically immune from the jurisdiction of U.S. courts.
Rejecting the Vatican's bid to dismiss the case, Mosman ruled that there was enough of a connection between the Vatican and the priest, who died in 1970, for him to be considered a Vatican employee under Oregon law.
The lawyer bringing the case, Jeffrey Anderson, "frequently represents abuse victims" (and has made millions of dollars by -- in his words -- "suing the shit" out of the Church. ed.) called the ruling a "titanic legal victory":
[This is] the first time any court has held or acknowledged there is a basis in law to hold the Holy See accountable for cover up and concealment and this international movement of predatory priests.
I'd be interested to hear from any canonists out there whether it is plausible -- from the Church's perspective, anyway -- to characterize the relationship between a priest and the Holy See as an employee-employer relationship.
Professor Friedman has the good news about the Third Circuit's decision in the Ursuline Academy case. As Friedman notes, "the U.S. Third Circuit Court of Appeals rejected employment discrimination claims by a female teacher who was fired from her position as a 7th/8th grade teacher at a Catholic school after she signed a pro-choice advertisement in a local newspaper." Congrats to the Becket Fund for the win in this important case.
Convinced that post-modernism is a threat to common decency and public virtue? Well, the elected officials of Florida agree, and they're not going to take it anymore, as Sandy Levinson reports.
Culture Watch: Apparently the Motion Picture Association of America now affixes parental warnings not only to films depicting violence and sexuality, but also to films with characters who openly discuss their Christian faith. (HT: Open Book)
Mark Noll has a new book, The Civil War as Theological Crisis. One reviewer, writing in The Christian Century, explains Noll's central claim that the "political crisis" leading to the war "was necessarily a theological one, because theology and republicanism shared the same rhetoric," and:
The key to the antebellum synthesis—and, for Noll, the heart of the problem—was a widespread belief in a commonsense approach to the Bible. A faith available to all had for its authority a book accessible to all. The Bible yields its plain meaning to the believer. And so if the apostle Paul commanded, "Slaves, obey your masters," and told a Christian slave to return to his master, no sophistication was needed to see that the Bible condones slavery. "We hold these truths to be self-evident," Jefferson wrote of the nation's founding ideals, and Noll sees the same democratic instinct guiding biblical understanding. No bishop or Harvard scholar was needed to tell the unordained evangelist or even the man in his cabin reading the Bible by firelight what the Bible does and does not say.
But common sense applied to morality as well as to understanding the Bible. To some, including many readers of Uncle Tom's Cabin, the moral reprehensibility of slavery became more and more obvious, and the simplicity of an individual verse less decisive. Stowe's novel was powerful because it showed the limits of a morality shaped by exegesis alone.
The ensuing theological crisis was in some ways, then, a battle between moral common sense and exegetical common sense.
Protestant America lacked the theological resources to avert the stalemate; Noll praises the Catholic thinkers of the time as offering resources to fill the void, including Orestes Brownson, with his famous insistence that "popular liberty can be sustained only by a religion . . . speaking from above and able to command." Two quick points: first, for an evangelical like Noll to praise 19th century Catholics as the authentic defenders of political liberty, he must be making a well-timed effort to curry favor and minimize hazing by his new colleagues; second (and more seriously), our need for resources to avert the stalemate between exegetical common sense and moral common sense continues, particularly on the question of homosexuality. Another important contribution from one of my favorite scholars.
