Adam Shinar and Anna Su, both SJD students at Havard Law School, have written a provocative paper, Religious Law as Foreign Law in Constitutional Interpretation. Unfortunately only the abstract is available at present, but those wishing to see the paper in full should contact the authors. The abstract is below, followed by some little thoughts about the piece.
This article challenges the conventional understanding of the separation of church and state by arguing that there is no analytical or constitutional problem with using religious law for the purpose of constitutional interpretation. We situate our arguments within the context of the broader debate on the use of foreign law in constitutional interpretation, and the more recent controversy surrounding the proposed bans on the use of religious law in U.S. state courts. By examining the arguments for and against the use of foreign law, we show how they equally apply to the use of religious law. More importantly, we conclude that differences between foreign law and religious law are, at best, differences of degree rather than kind, and thus do not militate against the use of religious law in constitutional interpretation. The article demonstrates that religious law can be used, and in fact, has already been used by the Supreme Court for four limited purposes, none of which, we argue, offends the principles underlying the Establishment Clause.
The paper begins by considering several criticisms that are made of the use of foreign law in constitutional adjudication — relevance, selectivity and accuracy, and political legitimacy – and it argues that each of these criticisms is equally applicable conceptually to religious law. The paper then addresses each of these criticisms as applied to foreign/religious law; it takes a quite strong view that each of the criticisms misfires.
The most interesting and effective part of the paper (for me) deals with the possible Establishment Clause distinction between reliance on foreign law and reliance on religious law. The authors write:
[N]otwithstanding the recent shift from the strict separationist view that was the logical byproduct of the Jeffersonian wall to the accomodationist view that started with the move to the endorsement theory of the Clause, it did not stop the often obscured fact that the Supreme Court has regularly referred to religious laws in its decisions. Thus, the Court could cite both the New Testament and Mosaic Law in interpreting the Treason Clause, the Sixth Amendment, the Fourth Amendment,the Due Process Clause,and also for prescribing guidelines for criminal sentencing. In the controversial case of Miranda v. Arizona,the Court traced the roots of the privilege against self-incrimination, and cited the teaching of Maimonides, a 13th century rabbi and one of the greatest exponents of Jewish law, tounderscore its historical importance.
The authors then list four possible uses to which religious law might be put in a judicial opinion — to show historical genesis, as interpretive reinforcement, for evidentiary purposes, and as persuasive authority. They claim that none of these uses – even the last — is problematic under the Establishment Clause.
Friday, March 2, 2012
Here's a very interesting piece about the relations between Cuba and the Catholic Church. It highlights the mediating role that the Church has taken with the Castro regime, and how taking "the long view" seems to have been both shrewd and effective in various political and cultural ways. A bit:
When Pope Benedict XVI visits Cuba next month, he will once again reinforce a strategy that the Vatican has allowed the local Catholic Church there to pursue for more than three decades: diligently avoid any political confrontation with the Castro regime, collaborate with Havana to combat the U.S.-led embargo, and support the Cuban government's incremental economic reforms. In exchange, the Church has been able to maintain a certain amount of autonomy on the island, allowing it to rebuild its presence and position for the possible post-Castro economic boom times to come.
It is a controversial balance. Cubans in the exile community vigorously criticize the Church because they think Church leadership on the island should challenge the dictatorship. But the Vatican takes the long view. Rather than overtly push for change, the Church has come to pursue a strategy of "reconciliation." It has inserted itself as mediator between the regime and its most daring opponents, both those imprisoned and those out in the streets. The Church is present and persistent, but it is nonpartisan. The attitude harkens back to the ostpolitik it practiced during the Cold War -- in most communist countries, especially in those where Catholics were a minority, clergy hunkered down, ministered to the faithful, and survived. Today, in countries ranging from Albania and Montenegro to Romania and Ukraine, Catholic communities are thriving.
Wednesday, February 29, 2012
The Center for Law and Religion is delighted to announce that Professor Joseph Weiler (NYU) will visit us at St. John's Law School next Monday, March 5, at 5:30 pm. His is the third session in our ongoing seminar, Colloquium in Law: Law and Religion. Professor Weiler will be presenting a paper dealing with the case of Lautsi v. Italy, which involved the display of the crucifix in Italian public schools and in which he was an advocate for several intervening European states. Academics in the New York area and beyond are welcome to attend. Please contact me if you wish to do so.
Tuesday, February 28, 2012
Kevin Walsh is guest blogging at CLR Forum over the next few weeks about, among other subjects, a paper he presented at the Pepperdine conference dealing with Catholic Supreme Court Justices on the Rehnquist and Roberts Courts. His first couple of posts are up -- stop on by to take a look.
Wednesday, February 22, 2012
"Should Federal Judges Cite the Bible as Authority for Constitutional Decisions?" That is the question Professor Richard Pildes asks over at Balkinization. The occasion for asking it is a concurrence by Judge Calabresi in Ognibene v. Parkes, decided by the Second Circuit earlier this year -- a case about campaign finance and the First Amendment, in which Judge Calabresi criticizes the Citizens United decision. In that concurrence, Judge Calabresi uses Luke 21:1-4 as an epigraph for his opinion.
I am not certain that I agree with Professor Pildes that this qualifies as reliance on the Bible as "authority" for a constitutional decision, at least unless the modifier "persuasive" is added. But even "persuasive authority" is not quite right. The body of Judge Calabresi's concurrence discusses American constitutional caselaw alone, and it seems to me that this provides the "authority" for his opinion. In his post, Prof. Pildes describes the use of the epigraph as providing "normative support" for Judge Calabresi's views, and this seems closer, though also not exactly right.
I have always thought that epigraphs are not argument. They are not even suggestions of argument. Their function is to orient the reader obliquely toward a certain mood or manner of thinking. In fact, the elegance of the epigraph consists exactly in refraining from doggedly hitting the reader over the head with argumentative authority. "Authority" is hardly the point.
All the same, I found some of the thoughtful questions that Professor Pildes asks about the uses to which epigraphs with religious origins may be put, and by whom, and in what circumstances, and with what political valences, extremely interesting.
Tuesday, February 14, 2012
Marty Lederman sends in the following response to Robby's column (Marty is having difficulty posting comments, and it seemed to me that this one is responsive more to Professor George's piece than to my post).
If I understand Robert George's new column, he is rejecting altogether the distinction between proximate and remote material cooperation in cases where they both foreseeably lead to the disfavored conduct by others. He writes:
Continue reading
I started to post this as a response to some of Rob's thoughtful questions, but the comment became long, so I am posting here. I am as puzzled by the new arrangement as is Rob. Rob says: "If the insurer did not pass on any increased cost for contraceptive coverage to the objecting employer (either because there is no increased cost or because the insurer was required to spread the costs among all non-objecting insureds)..."
I do not think one gets to this difficult question, for several reasons.
1. Why would a non-objecting employer or a non-objecting insured ever agree to foot the bill for other people not on its employment roll? Or for employers with whose beliefs it may vehemently disagree (and might not that, in turn, give rise to a possible conscience objection?), and in a situation where the objecting employer was paying nothing? That seems wildly unlikely to me. Non-objecting employers using the same insurance company as the objecting employers would almost certainly object strenuously to this. If their objections were not heeded, wouldn't they seek other insurers? I suppose this may depend on a cost/benefit assessment, but it seems implausible to think that the cost would be borne only by non-objecting employers. And how could the government compel that sort of arrangement, even if that's what it intended (also, in my opinion, not likely)?
2. It also seems implausible that the insurer would provide the services "for free." Let's put aside the canard about whether the coverage of contraceptive services is "revenue neutral," as this is an irrelevancy about whether the insurer will in the end make money from covering these services. I think Bob Hockett in one of his posts below suggested that one possibility is that the insurer might make a separate insurance "contract" with the insured, for providing these services. That seems unlikely to me, for two reasons. (A) A contract in which one side provides products for free to the other side doesn't seem to me to be a contract at all, as there is no consideration. It's a gift and therefore unenforceable. (B) Nobody has suggested that a separate contract between insurer and insured is an option. What we are talking about is that the religious employer pays for a policy in which products as to which it has a conscientious objection are included as part of what it is paying for, even if (now) not listed on the terms of the policy that it provides to the employee.
3. On the last point, I cannot see my way through to any other conclusion than that the religious employer will be paying for these services. It will pay for them by procuring its insurance contract. And it will pay for them in the form of increased premiums (again, whatever may ultimately be the case for the insurer's bottom line). I am not familiar with what an insurer is required to disclose to an employer about the reasons for an increase in premium. But it would surprise me if the insurer needed to say to the employer, "We hereby increase your premium by X in order to cover the costs of contraceptive services which we must now provide to your employees." But whether the terms of the premium increase are explicit or implicit, I am having difficulty escaping the conclusion that it is the employer who will be paying.
UPDATE: Having read Robby's helpful discussion above, which analyzes what the insurer needs to do as making an "offer" which the employee can then "accept," I thought to reemphasize those features traditionally necessary to make a contract: offer, acceptance, and bargained-for consideration. As a general matter, there is no contract without the last component. But in Robby's description, the offer and acceptance are incident to the insurance contract proper itself. So the bargained-for consideration is the money that the employer has paid to procure the policy. That's as it had to be, of course, since a separate contract would require separate consideration, and could not be procured for free.
