The European Court of Human Rights' decision in Lautsi v. Italy relied almost exclusively on an analysis of what Article 2 of Protocol 1 of the Convention on Human Rights required. That provision states: "No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions."
As I noted in my previous post on this case, the Grand Chamber held that "the decision whether crucifixes should be present" in public schools "forms part of the functions assumed by the respondent State in relation to education and teaching" and that it is therefore within the compass of Article 2 as well.
But one might well wonder why. Since the Court tells us that this case turns on the right of member states to set educational curriculum as they see fit (within a proper margin of appreciation), and since it also tells us that whether crucifixes are present in classrooms relates to an educational decision, the obvious question is: What is the relationship between the presence of crucifixes and the educational responsibilities of member states, in this case Italy? Unfortunately, the Court does not make this clear at all. Indeed, it does not even attempt to answer this question, and I think that is regrettable. Perhaps the Court did not want to swim in those waters for fear of writing an overly deep and thick decision; because of the controversial quality of the case, and the likelihood that whichever course it chose would be divisive, the Court wanted to engage in a bit of minimalism. In general I am a supporter of minimalism, particularly the Burkean variety, but because the Court relied so heavily on Article 2, seemingly to the exclusion of any discussion of Article 9, the issue inevitably rears its head and gives at least something of the appearance that the Court's decision was not as thorough as it could have been. Perhaps lack of thoroughness is a good thing sometimes, but it's interesting to begin to think about what something deeper might have looked like.
In fact, I think that the building blocks of a deeper explanation are right within the Court's own decision. The explanation might well be grounded, at least in part, on the lengthy discussion of Italy's historical engagement -- its domestic law and practice -- with the crucifix in public schools, as well as the extensive citation to decisions of Italy's own courts on this question.
One might imagine many different kinds of "educational" reasons for including a crucifix in a classroom. Here are only a very few: to indicate to students that they ought to worship as Catholics; to celebrate Catholicism to the exclusion of all other faiths, whether the students practice it or not; to celebrate Catholicism along with other faiths, in an effort at instilling both a historical consciousness and a sense of civic pluralism with respect to religion; to acknowledge the current cultural and religious preferences of the majority of Italians; to acknowledge the preferences of the majority of Italians as a matter of historical fact; to acknowledge Italy's historical roots as a Christian, and Catholic, country, stretching back to early Christendom; to acknowledge Italy's historical roots as a Christian, and Catholic, country, at the time of the unification of Italy, and the role played in the unification by Catholicism and the papacy; to suggest a connection between the Christian, and Catholic, superstructure of moral and civic values and Italy's contemporary secular/pluralistic civic values; and to suggest something true about the ineliminable inextricability of the cultural, the civic, the religious, and the educational.
Some of these reasons are more amenable to civic educational functions that would fall within Italy's margin of appreciation -- that is, for example, that would not violate other provisions of the Convention -- than others. My own view is that those reasons which suggest something normative and descriptive about the Italian intellectual heritage, history, and traditions of Christianity, and Catholicism specifically, rather than those which indicate something about what students ought, or ought not, to believe as a matter of faith, are more amenable as grounds for concluding that the crucifix (and the cross) have educational value which does not trench on other Convention provisions. Admittedly, these are difficult and complicated questions that present problems of line-drawing, and I emphasize that final qualifier because the general category "education" is slippery and protean. But in light of the Court's almost exclusive reliance on Article 2, I think that a bit more spade-work on this issue might have done the decision some good.
ADDENDUM: Some more and related reflections by Eric Rassbach at The Becket Fund, with a link to thoughts by Paolo Carozza, here.
Thursday, March 24, 2011
One does not often see the intersection of church autonomy doctrine and criminal law, but that marriage occurs in a recent New York case, People v. Afrika Owes (the decision, maybe behind a pay-wall, here) in which the Abyssinian Baptist Church wanted to put up a $50,000 bond for a defendant charged with conspiracy and criminal possession of a weapon. New York has enacted the "Religious Corporations Law," which governs a religious corporation's "temporal affairs" but not its "ecclesiastical affairs," and whose primary purpose is "to provide for an orderly method for the administration of the property and temporalities dedicated to the use of religious groups, and to preserve them from exploitation by those who might divert them from the true beneficiaries of the corporate trust."
The court here held that the posting of bond in a criminal case was a "temporal affair" and therefore subject to the RCL. Because it was within the ken of the RCL, the statute specifies that the trustees may use corporate property "for some religious, charitable, benevolent or educational object conducted by said corporation or in connection with it" but only "providing the members of the corporation at a meeting thereof shall so authorize" the use. And here, the trustees had not obtained authorization from the governing authority, the congregation -- "[i]n a Baptist church, the congregation is the ultimate governing authority[.]" The trustees violated their fiduciary obligations to administer the temporal affairs of the church by posting the bond without consulting the congregation and obtaining its consent.
From the court's concluding paragraph:
In continuing to disapprove this bail bond, this court is not substituting its judgment for that of the Church about how the Church uses its money. The Religious Corporations Law regulates the use of church property to ensure its use for the support and maintenance of the Church. Church property may be used for other purposes but only if the congregation, the ultimate governing body of a congregational church, authorizes the use of church property for some other purpose at a duly convened corporate meeting. This legally required process ensures that the trustees are, in fact, acting consistently with the wishes of the membership when expending church funds for a purpose other than the support and maintenance of the Church.
A very inteteresting piece by Peter Berger (h/t Movsesian) on the state of Orthodox Christianity in America. Here is a nice bit, with a distinct connection to law (but read the whole thing for an insightful take on the relationship of Orthodoxy to American pluralism):
There are many ways of describing the distinctiveness of Orthodoxy, as against both the Roman Catholic and Protestant versions of Christianity. One way is nicely summed up in a statement by Paul Evdokimov, a lay member of the St. Serge school who did not move to America (he played a courageous role during the German occupation of France, among other things helping Jews to escape from the Nazis). Evdokimov suggests that Western Christianity sees the relationship between God and man as taking place in a courtroom—God is the judge, man is guilty, sentence must be pronounced, Christ takes the sentence upon himself, which allows God to forgive man. The entire transaction is judicial and penitential. By contrast, Eastern Christianity sees the relationship as taking place in a hospital—man is sick, sin is just part of the sickness, Christ is the victor over every part of this sickness (including death, which is the culmination of the sickness). The transaction between God and man is not judicial but therapeutic.
Wednesday, March 23, 2011
The Journal of Catholic Legal Studies has just published the proceedings of a conference, Laïcité in Comparative Perspective, organized by our Center for Law and Religion (under the able directorship of Mark Movsesian) and held in Paris last year. Our keynote speaker was Doug Laycock, who gave an artful comparative talk. The conference was very useful in no small measure because of the presence of French and Spanish contributors.
Those who are interested can find the proceedings here.
I came across that, to me, strange sounding and discomfiting statement, from Meyer v. Grant, a 1988 decision, while reading the Ninth Circuit's various opinions denying rehearing en banc in United States v. Alvarez, a case in which the panel ruled that the Stolen Valor Act, which criminalizes knowing lies about whether one has received military honors, violates the freedom of speech. The opinions are here. (Thanks to George Wright for kindly calling the case to my attention).
I have more knowledge about the Religion Clauses than the Free Speech Clause, but I am slowly trying to learn. Still, I cannot imagine that anyone would say that the Religion Clauses are "value-free provisions," and I can't recall that sort of statement ever being made by any court (can you, good readers?). Questions for speech mavens: is it really true that the Speech Clause is value-free? If so, in what way? As a matter of the substance of the speech only, or more than just that?
UPDATE: I chased down Meyer v. Grant, and it looks like the Court cited with approval the "value-free" language, but the phrase itself was drawn from the 10th Circuit opinion. Thanks again to Prof. Wright.
I want to flag this interesting and illuminating paper by Michael Heise and our co-blogger and empirical scholar extraordinaire Greg Sisk. The abstract:
In our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause decisions by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in federal court, it appears to be ideology much, if not all, of the way down.
Alternative ideology variables of Party-of-Appointing-President and Common Space Scores were highly significant (at the p < .001 level) and the magnitude of the effect on case outcomes was dramatic. Holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 percent before Republican-appointed judges. Thus, an Establish¬ment Clause claimant’s chances for success were 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. Using Common Space Scores as a proxy for ideology, the more liberal judges were predicted to approve such claims at a 62.5 percent rate, compared with acceptance by the more conservative judges only 23.2 percent of the time.
A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same “God Gap” that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of the notorious lack of clarity in the Supreme Court’s Establishment Clause jurisprudence and a consequent low level of law formality, the door has been thrown wide open to unrestrained political judging. Sadly, the Supreme Court’s Establishment Clause doctrine has become an attractive nuisance for political judging.
Fortunately, our study provides an empirical basis for hope that clarification and tightening of doctrine in the Establishment Clause field may constrain judicial discretion and suppress political judging. With the significant impact on lower courts of a precedential shift by the Supreme Court included within our study, the empirical evidence suggests that clearer legal parameters can make a meaningful and measurable difference and lead to a more legally grounded approach to adjudication.
Monday, March 21, 2011
Here is a summary of a recent New York lower court decision, People v. Andujar, involving a prosecution for the unlicensed vending of condoms with "political" messages and caricatures:
Charged with unlicensed general vending in violation of AC §20-453, defendant moved for dismissal of the accusatory instrument for facial insufficiency. The instrument alleged that, in front of 1585 Broadway, defendant displayed and offered for sale 20 condoms without being able to produce a license from the Department of Consumer Affairs. While the condoms were not described any further in the instrument, defendant contended they bore political messages on their packaging and contained caricatures of Barack Obama, John McCain and Sarah Palin, along with "satirical slogans and commentary regarding political awareness, sexual responsibility, and abortion." The court granted defendant's motion, finding that the condoms fell within the "written matter" exception as construed by the consumer affairs agency. The court cited the exception contained in AC §20-453, which ensures that the statute is not unconstitutionally applied to First Amendment-protected forms of expression protected. It added that a reasonable consumer of the condoms is unlikely to buy them for use during intercourse, but would instead buy them because of the political message contained on the wrapper.
I wonder how the court felt so sure about the purposes for which "reasonable" people would buy condoms with caricatures of President Obama and Sarah Palin? (For those who may be wondering, "the instrument" refers, I believe, to the complaint).
Ahhh, the freedom of speech.
