This is an interesting case from a few days ago, Bronx Household of Faith v. Bd. of Educ., in which a three judge panel of the Second Circuit upheld a local rule which prohibited outside groups from using public school facilities after hours for "religious worship services." Judge Leval wrote the main opinion, joined in concurrence by Judge Calabresi, and with Judge Walker dissenting. Two points in particular seemed interesting to me:
1. You might be wondering how the court managed to get around Good News Club v. Milford Central School. The New York City Department of Education makes its public school classrooms available as limited public forums to a variety of groups. Bronx Household of Faith, a Christian Church, applied to take advantage of one such space for its Sunday morning church service, stating that its services were to include "singing of Christian hymns and songs, prayer, fellowship with other church members and Biblical preaching and teaching, communion, [and] sharing of testimonies," followed by a "fellowship meal," during which attendees "talk to one another, [and] share one another's joys and sorrows so as to be a mutual help and comfort to each other." Part of the procedural history of the case precedes Good News Club (also out of the Second Circuit), but as folks here at MOJ know well, Good News Club held that a public school district which operated as a limited public forum could not exclude a Christian group which sought space in order to teach young children (aged 6-12) about Christian morality (through the use of songs, prayer, story telling, and in other ways), because doing so was prohibited viewpoint discrimination (see also Lamb's Chapel and Rosenberger). This case has had a long and involved procedural history during which the Board of Ed.'s rule was gradually modified. But the upshot in this opinion is that Judge Leval held that "[t]he prohibition against using school facilities for the conduct of religious worship services bars a type of activity. It does not discriminate against any point of view . . . . While the conduct of religious services undoubtedly includes expressions of a religious point of view, it is not the expression of that point of view that is prohibited by the rule. Prayer, religious instruction, expression of devotion to God, and the singing of hymns, whether done by a person or a group, do not constitute the conduct of worship services. Those activities are not excluded."
I'm having some difficulty with this interesting argument but probably I just am not understanding it. It seems to be that the disorganized activity of "worship" would not itself be something which the district could prohibit consistent with Good News Club, but the "event" or "collective activity" of worship may be excluded. Judge Leval: "What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion." Granting use of the forum to an "organized religion," in the majority opinion's view, "has the effect of placing centrally, and perhaps even of establishing, the religion in the school." A bit of Protestant theology from the Second Circuit?
2. The other interesting feature is the use to which Judge Leval put the Establishment Clause. The district's exclusion of religious worship services was recognized as reasonable in light of its wish to avoid violating the Establishment Clause. Again, from Judge Leval's opinion: "In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists. It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause." And again, Judge Leval emphasized that worship services are a "core event in organized religion" and because the classroom "at least for a time, becomes the church," not only was it distinguishable from the Good News Club situation, but it also might well violate the EC for the district to permit such a use. Two other points made by the Judge: establishment concerns (filtered through the lens of a "perception of endorsement") are reasonable because (1) the availability to Christians on Sunday of the public school space is an unintentional bias in favor of Christian religions; and (2) the religious services of Bronx Household are not open on equal terms to everyone, since the Church holds that one must be baptized and not excommunicated in order to participate.
Judge Walker's dissent is also well worth reading for those who are interested.
It isn't often that one sees these two fields together, but this story is about FIFA's ban of the niqab (the head-scarf...presumably the full length hijab is a no-go too) for female soccer players. Apparently the ban went into effect in 2007, and Iran's national team was recently disqualified in an Olympic qualifying match for their refusal to comply with it. The story is light on details about the grounds for the original ban, but it seems that there were safety concerns specifically related to the neck (the ban also prohibits "neck warmers"). I can understand how it might well present a safety concern for soccer players on either side to be dealing with a head scarf during play (it seems like a choking hazard and probably there are other dangers to the neck), but if anyone knows something more about the basis of the ban, please comment.
Iran's president, Mahmoud Ahmadinejad, is quoted as calling the FIFA authorities "dictators" for their refusal to accommodate Iran's players.
Not this one, of course, but I've recently discovered that there is a Cardinal in my genealogical past.
Raffaele Cosimo de'Girolami was a Cardinal (1743-48) during the papacy of Benedict XIV (1740-58). De Girolami (or de Girolami, or the older de'Girolami -- all meaning roughly 'of the house of, or of the family of, Jerome') is, as you may perhaps have guessed, not an especially common name around here. Interestingly enough, it is only a little more common in Italy. After making some familial inquiries with some Tuscan relatives and doing some leg-work, I think I've managed to trace him as an ancestor.
This site says that Cardinal de'Girolami was Prefect of the R.C. of Indulgences (hmmm...not so good...) and Sacred Relics (better!!) and that he founded an academy of theology in a gymnasium in Rome. It also says that he was "a famous theologian" but I suspect fame is being assessed generously.
At all events, if anybody knows about or has heard of anything that Cardinal de'Girolami ever wrote, I'd be most grateful for a comment or note.
I came across this elegant reflection by Isaiah Berlin about the nature of intellectual history. From "Russian Intellectual History," an essay collected in The Power of Ideas, 68-69:
What is intellectual history? It is not a clear and self-explanatory concept. Such terms as 'political history', 'economic history' and 'social history', however vague their frontiers, however much they may overlap with one another, are not in this sense obscure. They denote accounts of what certain more or less definable groups of human beings have done and suffered, of the interaction between their members, of the deeds and destinies of those individuals who have been influential in altering the lives of their fellows in certain specific ways, of the interplay between them and external nature or other groups of human beings, of the development of their institutions -- legislative, judicial, administrative, religious, economic, artistic -- and so on . . . . But what is intellectual history? A history of ideas? What ideas and conceived by whom? . . . . What is the subject of such speculations and disagreements? If not the specific ideas that belong to specific disciplines, then what? General ideas, we shall be told. What are these? This is much more difficult to answer . . . .
By 'general ideas' we refer in effect to beliefs, attitudes and mental and emotional habits, some of which are vague and undefined, others of which have become crystallised into religious, legal, or political systems, moral doctrines, social outlooks, psychological dispositions and so forth. One of the qualities common to such systems and their constituent elements is that, unlike a good many scientific and common-sense propositions, it does not seem possible to test their validity or truth by means of precisely definable, agreed criteria, or even to show them to be acceptable or unacceptable by means of widely accepted methods. The most that can be said of them is that they are to be found in that intermediate realm in which we expect to find opinions, general intellectual and moral principles, scales of value and value judgments, mental dispositions and individual social attitudes -- everything that is loosely collected under such descriptions as 'intellectual background', 'climate of opinion', 'social mores', and 'general outlook[.]' . . . . It is this ill-defined but rich realm and its vicissitudes that histories of ideas or 'intellectual histories' supposedly describe, analyse, and explain.
With this stylish, though of necessity imprecise, definition in mind, whom do you think are the leading intellectual historians of law -- not just legal historians, but historians of legal ideas (they may be the same, but they may not be)?
This is a very interesting paper by Professor O. Carter Snead with the above title. The paper provides a superb overview of developments in the science of memory alteration, offers a "humanistic" account of the nature of memory (with fitting citations to Proust), and then comments in interesting and insightful ways on the relationship between various traditional functions of punishment and the centrality of memory in their operation.
What Professor Snead says with respect to retribution is especially interesting. Retribution, in any of its multiple constituent manifestations, depends on a "true and fit" memory on the part of both offenders and jury (at 1246 and following). Memory modifications (for offender or juror), says Professor Snead, may make the punishment less deserved either because less true to the event and the relevant background or less "fit" to those circumstances. I found the concept of "fittingness" difficult, but very important. Professor Snead argues that memory modification might disturb the fittingness of a punishment, but I suppose one would have to know something about the defendant and the jurors (and the community) in order to decide. If, for example, we were dealing with an affectively stunted individual, perhaps we would want to calibrate memory according to some sort of community scale of fittingness. Likewise if we were dealing with an individual whose memory was exceptionally keen -- beyond the general sense of fittingness. Again, if we are interested in a general notion of fittingness along the lines that Professor Snead suggests, perhaps calibration would be in order in such a case as well?
These are just little thoughts. Take a look at Professor Snead's terrific piece on a deeply interesting subject.
This is a provocative short piece by Professor Bruce Ledewitz commenting on a genre of recurring controversy this time of year (this year, it was Louisiana) and on the legacy of Lee v. Weisman. In his work, Professor Ledewitz has been grappling with the issue of how secular and religious frameworks might be combined to create something new.
Also, and as it has been a Steve Smith fest here of late (the Oklahoma conference sounds wonderful), I'd like to get on board and point folks to a related article of Steve's involving the school prayer decisions of the 1960s.
Via the folks at the Becket Fund, I thought I'd pass along this comment about a case in Tennessee involving the issue whether Islam is a "religion" or instead a political movement.
Actually the question of religion's legal/constitutional meaning is an exceptionally difficult one. The difficulty follows from the elusiveness of 'defining' religion generally, particularly after folks like Talal Asad complicated matters greatly with his formidable Genealogies of Religion. The author of the comment at Becket, Ms. Diana Verm, argues that a system of belief qualifies as a religion when it "partakes of the transcendent–its believers feel that they are connecting to something outside and higher than themselves when they practice their faith." Belief in the transcendent or some kind of higher reality is one possible approach among a set of views which would take some substantive component as essential, and it has found support in some case law (though there are significant difficulties with this approach -- for one, Buddhism seems to be left out). Another possibility, much in favor in the mid- mid-late twentieth century, is the so-called "functionalist" view, a more capacious approach which considers the various social functions that religion is thought to play in people's lives, and then accepts that those belief systems which perform similar functions ought to qualify. Emile Durkheim was one of the earliest functionalists (see his Les Formes Elémentaires de la Vie Religieuse) and the approach found favor in cases like United States v. Seeger (with reliance on the thought of Paul Tillich).
Then there is the analogical approach, which takes as its raw material the cluster of factors that religious traditions which are unquestionably -- for historical reasons -- religious share as evidence of what should qualify as religious. No single factor or characteristic is deemed dispositive but the more the system under consideration resembles traditions which are unquestionably religious, the more likely that the belief system itself will be deemed religious. This approach, developed by Kent Greenawalt, is the most persuasive to me (the reasons that I favor it are not quite the same as those often given in support of it).
At all events, it seems to me that Islam rather easily qualifies under any of these views not despite the fact, but in part exactly because, it also partakes of the qualities of a political and cultural system.
Michael Helfand has a very thoughtful discussion of this (in my view) misguided piece of legislation (it looks like a ballot proposal). Calvin Massey also comments perceptively here. I do not think that the ban would violate the rule of constitutional free exercise as interpreted by Employment Division v. Smith -- that neutral laws of general application are constitutional so long as no religion is being specifically targeted (as in the Lukumi-Babalu case). With respect (Professor Massey knows more about constitutional law than I hope to know 10 years from now), I do not think that the legislative exception for "physical health" and concomitant statement that "custom or ritual" is not a basis for exemption rises to the level of targeting contemplated by Smith. Certainly it's nowhere near the sort of record of specific targeting that existed in Lukumi-Babalu.
Suppose a locality forbade the drinking of liquor for health reasons, and in the legislation there was a statement that "custom or ritual" shall not be a basis for exemption from the law. Without any more evidence, I do not think that, under Smith, Catholics would be able to raise a free exercise claim (it might be different, though I am not certain, if a locality banned the drinking of wine only, and not other liquor, for health reasons). At the very least, I'd like to see a whole lot more evidence of the reason that the legislature included the "custom or ritual" proviso before relying on the Smith holding. A case like this one is one reason (among many) that I oppose Smith.
In light of some of our previous discussions involving the targeted military killing of Osama Bin Laden (e.g., here, here, here, and here), I thought I would point readers to Professor Koh's (now at DOS) explanation at Opinio Juris. I am not an expert in the law of armed conflict, but it is interesting to me to see two different sorts of explanations at work in Professor Koh's post -- one dealing with self-defense (sounding some of the themes that Eduardo raised earlier -- and suggesting to me that he was probably onto something, and that my strong skepticism of the self-defense model may not be right) and another dealing with the independent sufficiency of the fact -- apart from any issue of self-defense -- that we are in an "armed conflict" with al-Qaeda (reminiscent of some of the points that Greg and I, I think, were making). I am thinking of this statement in particular: "But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force." (emphasis mine) Take a look.
ADDENDUM: I should note that Koh is speaking here in his official capacity within the United States government. And on the issue of self-defense, there is the tricky little problem of the killing having occurred on Pakistani soil, which Professor Koh does not address. Apart from the question whether the rules of international law permit the use of "self-defense" under such circumstances, there is the fundamental issue about whether it is in the very nature of "self-defense" that the harm to "self" must be imminent.
