The Washington Post has a story on the various health-care financing options outside the Affordable Care Act that have grown since the Act was passed, with signups from people opposed to the law's requirements. These include the faith-based "healthcare sharing ministries" that have an explicit (limited) exemption from the Act.
[Sarah] Tucker dropped the private health plan she had carried for more than a decade and joined Christian Healthcare Ministries, a faith-based nonprofit in which members pool their money to pay for one another’s medical needs — and promise to adhere to biblical values, such as attending church and abstaining from sex outside marriage....
Christian Healthcare Ministries ... has existed since the 1980s, but membership has surged — growing by 60 percent to more than 80,000 members — since the health-care law was passed. The most popular plan costs $150 a month per person and covers medical bills up to $125,000 for any single illness or incident. People with higher bills are covered if they belong to a special program in which members split the cost. This “brother’s keeper” program typically costs less than $100 a year, according to the group....
As someone who studies both religious liberty and religious social ethics, I'm interested in ways in which religious objectors to legal requirements like the ACA are forming, or might form, alternative institutions and practices that avoid the regulations. For devotees of a Stanley Hauerwas-type perspective on Christian ethics, this whole process might be salutary: Christians resisting the norms of the general secular culture, meeting more of the needs of each other and others through highly distinctive church-related practices and organizations, and thereby moving further toward seeing the church as an "alternative polis." There are, of course, major challenges involved in making that move:
"These ministries operate on a very high degree of trust,” said Timothy S. Jost, a Washington and Lee University law professor and consumer advocate. “It’s really important that people really believe in this and are committed to this. If you have a bunch of people sign up who are doing this only to [avoid the health-care law], the whole thing can collapse.”
The eminent First Amendment scholar (and my friend) Steve Shiffrin has a smart post disagreeing with my own criticisms of Olivier Roy’s column a few days ago concerning the European political right and its nominal association, but substantive dissociation, with the major Christian churches of Europe. Actually there is not much to disagree with in Steve’s post: insofar as my post suggests that the problems that attend church state associations simply have no application in Europe, surely Steve is right to object. Here are just a few additional ruminations in response:
First, I take Steve’s post to be in some measure a friendly amendment to my own. The principal point I wanted to make about Professor Roy’s column is that to the extent that church-state association or connection is a problem in Europe, that is nothing new and has little to do with today’s particular political trade winds. So that while the contemporary political right makes for a fat target, Professor Roy’s real objection is to the larger model of church-state relations that has predominated in Europe (for good and, as Madison had it, for ill) for the hundreds of years that preceded the last handful. Steve’s post is, I think, consistent with this criticism.
Second, Steve’s post is also a reminder to me that the strength or vigor of a religious tradition is itself a contested concept. A highly Protestant or Evangelical view of religion’s core or essence will see weakness in associational or public institutional characteristics and strength in individual commitment and the purity of interior zeal (I note that Steve cites Stanley Hauerwas!). Here’s some of what I wrote a few months ago (in response to George Will) about the claim that separationism must always and necessarily strengthen religion, much of which seems applicable here too:
The claim is that religion is so vibrant in America only because (or uniquely because) it is so pure, so separate from public institutions. It’s an argument that Madison made famous in his “Memorial and Remonstrance” and that Justice Souter has made in his religion clause jurisprudence (see his dissent in Zelman v. Simmons-Harris)…. It reflects a distinctively evangelical ethic that one sees in full blossom in the writing of Roger Williams (as well as, before him, John Milton), for whom religion could never quite be pure enough–an ethic that hyper-emphasizes the unvarnished, utterly and uncomplicatedly sincere credos of what William James much later would call the gloomily intense “twice-born.”
Notice also the individualistic current on which the claim [of religious strength's source in separationism] rides. It isn’t just that the state is “likely to get it wrong”; that is an argument for disestablishment…. The deeper undercurrent of the separationist claim is that individuals, not entities, are the ones “likely to get it right”–that true-blue, healthfully zesty religiosity depends on a kind of inward exercise of discernment borne from fervent conviction that is always in peril of depurification by associational adulteration. It is a claim made primarily by those whose experience of “bad” religion was group religion– and traditional group religion at that. And the claim retains at least part of its power because of its still vital anti-clerical, anti-institutional foundations….
But is the claim true? In part, perhaps, but only with substantial qualifications of a kind that make it problematic. There is nothing inevitable….about religious strength that follows ineluctably from its complete separation from government. There is no iron law that says: the more we separate religion from government, the stronger religion must become. Such a claim would run headlong into many counterexamples, contemporary and ancient. The ancient examples make the claim appear patently absurd. One wants to ask: “Do you actually mean to tell me that no society which has not observed strict separation between church and state has had a flourishing religious life? So there was no flourishing religious life in any of countless pre-modern societies that existed before Milton or Locke or Roger Williams or whoever got busy?” And to take only one modern case, religion and the state have been strictly separated for some time in laic France and in other extremely secular European countries, and the strength of religious life in those countries is by all accounts much weaker than it was in prior historical periods when there was greater proximity and interpenetration of church and state.
I suppose one might argue that religious weakness in a country like France is the result of the long, noxious association of church and state that preceded separation, and that we just need some more time before a newly flourishing religiosity emerges. That seems highly dubious. Church and state have been separated in France for over a century (since 1905). How much longer is it supposed to take for this delicate flower to bloom in the desert? In fact, it seems much more likely that strict separation of church and state has either contributed to the weakening of religious life in a country like France or (even more plausibly) that it has occurred at a time when religiosity was weakening for reasons of its own–reasons unrelated to, or at least independent of, strict separationism.
If some notion of separation did in fact at one time contribute to a stronger collective religious life in the United States, the reason had little to do with any necessary connection in this respect, and more to do with the unique historical and cultural circumstances of the United States–circumstances in which the Puritan evangelicalism represented by Roger Williams’s particular style of fire-and-brimstone, garden-and-the-wilderness religiosity was much more powerful in the United States than it is today. Church-state separation may be a strategy that makes religion seem stronger, provided that one is beginning from the evangelical paradigm of the twice-born soul. But it is a different matter if religion is commonly perceived in wildly different terms and expected to perform entirely different functions.
I take all of these points to be consistent with Steve’s final paragraph, in which he writes: “The factors leading to religiosity or its decline are complicated and controversial, and the decline in European religiosity is palpable. I would not contend that the close ties between religion and the state are the only explanation. After all, those ties persisted for a long time without a decline as DeGirolami observes. I would add that those ties can be helpful.” Quite so.
Finally, a friend wrote to me indicating that he was dubious that “separationist” was a proper description of Professor Roy’s own views. That’s an interesting observation as well. I made the association because separationism has a long and rich history in this country. It is a view that proceeds in part from the position that the mingling of church and state is a corrupting force for both and it maintains that the cultural and identitarian features of religion which can permeate the political sphere are not a positive thing for either religion or government. I found this latter theme to be very much emphasized in Professor Roy’s piece; indeed, I found it to be crucial to the claims he makes. But separationism is an American phenomenon. And it may be difficult to transplant the flora of particular, culturally contingent church state arrangements to exotic soils and expect them to blossom in quite the same ways.
"The Holy Spirit teaches us: He is our interior Master. He guides us along the right path through life's situations. He teaches us the path, the street .... He is more than just a teacher of doctrine. The Spirit is a teacher of life. Certainly knowledge, understanding is also a part of life but within the broader and more harmonious horizon of Christian existence."
The drive-by shooting at "doctrine" is one thing. Another is the claimed opposition between "Christian existence," on the one hand, and "knowledge, understanding" ("also [sic] a part of life"), on the other.
Those interested in how Islam--and religions in general--relate to human rights should take a look at these findings from leading international-law scholar Tom Ginsburg and a co-author, concerning "Islamic clauses" in national constitutions, i.e. clauses that make Islam the supreme law. The authors analyzed a data set of constitutions adopted in majority-Muslim countries over decades and concluded, among other things,
that in many cases, these clauses are not only popularly demanded, but are also first introduced into their respective jurisdictions during moments of liberalization and modernization. [Moreover,] contrary to the claims of those who assume that the constitutional incorporation of Islam will be antithetical to human rights, we demonstrate that almost every instance of “Constitutional Islamization” is accompanied by an expansion, and not a reduction, in the rights provided by the constitution. Indeed, constitutions which incorporate Islamic supremacy clauses are even more rights-heavy than constitutions of other Muslim countries which do not incorporate these clauses. We explain the incidence of this surprising relationship using the logic of coalitional politics.
These findings have significant normative implications.... [Among other things, they] suggest that outsiders monitoring constitution-making in majority Muslim countries who argue for the exclusion of Islamic clauses are focused on a straw man; not only are these clauses popular, but they are nearly always accompanied by a set of rights provisions that could advance basic values of liberal democracy. We accordingly suggest that constitutional advisors should focus more attention on the basic political structures of the constitution, including the design of constitutional courts and other bodies that will engage in interpretation, than on the Islamic provisions themselves.
Thanks to Google Books and a pointer from a helpful guide, I've recently had occasion to take a look at an early nineteenth-century guide- and sourcebook for judges on inferior state courts and justices of the peace dealing with federal matters: Samuel Bayard, An abstract of those laws of the United States which relate chiefly to the duties and authority of the judges of the inferior state courts: and the justices of the peace, throughout the union; illustrated by extracts from English law books. To which is added, an appendix, containing a variety of useful precedents (1804).
Prior to giving evidence in a cause, a witness in all cases, must be sworn or affirmed to declare "the truth, the whole truth, and nothing but the truth."
A Jew may be sworn on the books of the Old Testament; a Mahometan on the Alcoran; pagans, or infidels of any description, also persons of any religious denomination may be sworn according to the ceremonies of the religion they profess, and are admissible witnesses in any cause ....
In the courts of Great Britain, in pursuance of an express act of parliament, the affirmation of a quaker cannot be received in any criminal case; but in the United States, where the religious principles, and pure morals, of this respectable denomination of christians, are well known, and where sincere scruples of conscience are more respected; their affirmation is in all cases, regarded as equivalent to the oath of other christians. It is considered as an appeal to Heaven for the truth of what they declare, and by our laws, where taken falsely, it is punished in the same manner, as where a false oath is taken. (p.216)
* * *
An atheist, who professes to have no belief in the existence of a God, and of course disbelieves a future state of rewards and punishments; also a person who has no idea of a God or religion, who is altogether ignorant of the obligations of an oath; ought not to be sworn. (p. 217)
* * *
[There are also some more explicit directions later:]
NB. The witness having laid his right hand on the Bible or New Testament, then kisses the same.
If a Jew, he should be sworn on the five books of Moses, with his hat on.
If a Roman Catholic, there should be a cross on the book.
A Mahomedan must be sworn on the Alkoran, and other witnesses according to the ceremonies of their respective systems of faith (or mode of worship). (pp. 252-53)
* * *
[The appendix also contains a "special form of an oath used by some denominations of christians."]
"I, A.B., do swear by Almighty God, the searcher of all hearts (or by the ever living God) that the evidence I will give, &c. and that, as I shall answer to God, at the great day." (p .253)
Cambridge University Press has just published a new sourcebook entitled Religion, War, and Ethics. The project took place under the guidance of Greg Reichberg and Henrik Syse, both of the Peace Research Institute of Oslo. The religious perspectives include: Judaism, Catholic Christianity, Eastern Orthodox Christianity, Protestant Christianity, Sunni Islam, Shi’ite Islam, Hinduism, Buddhism, Chinese and Korean traditions, Japanese traditions, and the Sikh tradition. Dr. Reichberg wrote the historical background of the Catholic tradition chapter, and I wrote the section dealing with contemporary sources. Unlike some anthologies where the authors simply write their contributions without any contact with the other contributors, we met as a group on a number of occasions to discuss one another’s chapters. In doing so, I believe we came to a better understanding of our own individual traditions as well as the others included in this project. As the publication is over seven hundred pages, this book will hopefully be a good research tool for theorists as well as those responsible for making and executing official government policies.
Global Perspectives on Subsidiarty, edited by Michelle Evans and Augusto Zimmerman, has just been published. In addition to my "Subsidiarity in the Tradition of Catholic Social Doctrine" (a fairly final version of which is here ), the volume includes such chapters as "Subsidiarity in the Writings of Aristotle and Aquinas" by Nicholas Aroney, "The Relationship Between Sphere Sovereignty and Subsidiarity" by Lael Daniel Weinberger, "Subsidiarity and Social Pluralism" by Jonathan Chaplin, and "Subsidiarity and the Reform of the Welfare of the Nation State" by Robert A. Sirico, among many others.
This rich volume offers a much-needed correction of the ubiquitous confusions -- especially among those who miss or deny what Roger Scruton recently called "the good of government" -- according to which subsidiarity amounts to either a norm of smallness per se or of devolution. Any serious academic library should own a copy of this book.
My esteemed Witherspoon Institute colleague Chen Guangcheng, the great Chinese democracy and human rights advocate, has given an important speech on the twenty-fifth anniversary of the massacre at Tiananmen Square. The text has been posted at Public Discourse,the Witherspoon Institute's on-line journal edited by the formidable Ryan Anderson.
The distinguished sociologist of religion, Olivier Roy (author of a very fine book called Holy Ignorance), has an interesting op-ed in the New York Times today entitled, “The Closing of the Right’s Mind” (no citation to Alan Bloom?). The large point in the piece has to do with the secularization of certain political parties in Europe that were formerly linked to the Christian churches of Europe, principally the Catholic Church. Here’s the opening:
The longstanding link between the political right and various Christian churches is breaking down across Europe. This is largely because the right, like much of European society, has become more secular. Yet this hardly indicates progress: Animated by an anti-Islamic sentiment, the right’s position is endangering freedom of religion, as well as secularism and basic democratic traditions.
Up to the 1950s, the cultural values endorsed by the right throughout much of Europe were not so different from the traditional religious values of Catholics and Protestants. Homosexuality was criminalized in many countries. Children born out of wedlock had fewer rights than “legitimate” children. The law in most countries protected family values, censored some forms of pornography and condemned what the French call mauvaises moeurs (roughly, loose morals).
The changes brought on by the decades that followed--in which rights and values of sexual autonomy came to dominate the scene--were initially the purview of the political left but eventually, Professor Roy notes, came to be adopted by the political right as well. And that has resulted in the fracturing of connections between the political right and the traditional European churches, which largely do not subscribe to those values.
The “twist,” however, is that the political right has assumed the mantle of Christianity without claiming any of its values. It has dissociated itself from Christianity; it has secularized. But it has simultaneously maintained that Western Europe is Christian. It has done this not because it is truly Christian--"spiritually” Christian--but for political reasons, principally for the purpose of resisting a growing Islam in Europe.
The piece is very interesting, as I say, but what principally interested me is how American it sounds. The claim that religion’s true value is its “spiritual” essence, rather than any number of other values, can be found in American separationist writings dating to Roger Williams. It has deep roots in a kind of Protestantism and Evangelicalism typical of the American experience. I would not have thought that the European experience, in which the political importance of religion was always far more prominent, was the same. And the notion that the association of politics and religion exerts a corrupting influence on religion may be traced in a direct line from James Madison all the way to David Souter’s church-state dissents. But, again, I take it that has not been the European historical experience. Indeed, Professor Roy himself notes in the fragment quoted above a period in which the political right and the European churches were plausibly connected. But if the separationist corruption argument is right, then this period of association was no less corrupt than the current condition of dissociation.
Indeed, in the view of the separationist, the previous period was just as corrupting for politics and religion alike as the present. This may be the reason that Professor Roy raises the Lautsi case, concerning the display of crucifixes in Italian public school classrooms, a practice which preceded by many years the current difficulties faced by European political parties. The European Court of Human Rights upheld the practice based in part on the religious culture and heritage of Italy. Professor Roy criticizes the ruling on the ground that “to defend a distinct cultural Christian identity is to secularize Christianity itself.”
Again, historically that has not been true in Europe; Christendom coexisted comfortably with Christianity for centuries, well before “secularization” in its contemporary form ever came on the scene. And even if the statement were true, its truth would have little to do with the current conditions of the political right in Europe. That statement reflects a larger vision of the nature of the relationship between church and state--a distinctively American conception of that relationship primarily (though not exclusively) embraced today by the political left in this country--strict separationism. Its influence in American law, however, has been steadily declining: there are no more church-state separationists on the Supreme Court. It is striking that separationism of this sort should have such contemporary purchase for the very different historical conditions of Western Europe.
Taking place in Rome on Friday, June 20, 2014, and Saturday, June 21, 2014, the conference will bring together American and European scholars and policymakers to discuss the place of religious freedom in international law and politics. Speakers will address a variety of perspectives. Proceedings will be in English and Italian with simultaneous translation.
Revised Conference Agenda
Friday, June 20, 2014
1:30 - 2:30 p.m. Lunch
2:30 - 2:45 p.m. Welcome
2:45 - 4 p.m. Keynote Panel Religious Freedom in International Law, Yesterday and Today Thomas Farr (Georgetown University) John Witte, Jr. (Emory University) Moderator: Marc DeGirolami (St. John’s University)
4:15 – 5:30 p.m. Panel 1: The Politics of International Religious Freedom Pasquale Annicchino (European University Institute) Heiner Bielefeldt (UN Special Rapporteur on Freedom of Religion or Belief) Hon. Ken Hackett (US Ambassador to the Holy See) Moderator: Margaret E. McGuinness (St. John’s University)
Saturday, June 21, 2014
8:30 - 9 a.m. Coffee
9 - 10:15 a.m. Panel 2: Comparative Perspectives on International Religious Freedom Francisca Pérez-Madrid (University of Barcelona) Marco Ventura (Catholic University Leuven and University of Siena) Roberto Zaccaria (University of Florence) Moderator: Monica Lugato (LUMSA)
10:15 - 10:30 a.m. Coffee
10:30 - 11:45 a.m. Panel 3: Christian and Muslim Perspectives on International Religious Freedom Abdullahi Ahmed An-Na’im (Emory University) Olivier Roy (European University Institute) Nina Shea (Hudson Institute) Moderator: Mark L. Movsesian (St. John's University)
Noon - 12:30 p.m. Conference Conclusions Giuseppe Dalla Torre LUMSA
Location LUMSA, Complesso del Giubileo via di Porta Castello, 44 – Roma
Registration Please register to attend the conference by June 9 at: [email protected]
More Information Monica Lugato | LUMSA Department of Law | [email protected] Mark L. Movsesian | St. John's School of Law |[email protected]
