Over at Prawfsblawg, MOJ-friend Paul Horwitz has a must-read post about the recent Hosanna-Tabor arguments and, more particularly, responding to Prof. Leslie Griffin's framing of the issue. Among other things, Paul explains -- with characteristic patience -- why the "why should churches get to disobey the law?" objection to the ministerial exception misses a pretty big point.
Sunday, October 9, 2011
Must-read Horwitz on the ministerial exception
Thursday, October 6, 2011
An important anniversary
Here is information about an event commemorating the 500th (!!) anniversary of Antonio de Montesinos, the Dominican who famously denounced the enslavement and oppression of indigenous people in the New World and whose preaching influenced Bartolome de las Casas. Here's a bit from the conference web site:
While concerned with the history of human rights, the conference will have as its primary focus assessing current institutional and legal approaches to move forward in protection of human right. The 500th anniversary is the ‘rationale’ for the conference. Given many contemporary experiences with problems in the global human rights regime, a review of universal definitions and protections of human rights would be justified even without the 500th anniversary.
While we have created in the last century many formal human rights statements and enforcement institutions, from the ILO to the Universal Declaration of Human Rights and various courts built on the Nuremberg model, egregious violations of defined standards continue. For example, despite great progress in defining indigenous rights, there are many cases where specific native communities are being displaced or forced to adapt to norms imposed by outside dominant societies. The movement of millions of migrants as a companion to economic globalization has spawned numerous failures to protect labor and other human rights. Imbedded in this migration is the smaller but more appalling abuses arising from involuntary human trafficking. While many religious institutions and traditions provide models for justifying and defending human rights, of which Montesinos is a stellar example, movements linked to many religious traditions have been tempted to approve suppression of rights in the name of conformity.
"The Political Pulpit"?
The New York Times reported (or, more accurately, alleged) the other day that "[t]his weekend, hundreds of pastors, including some of the nation’s evangelical leaders, will climb into their pulpits to preach about American politics, flouting a decades-old law that prohibits tax-exempt churches and other charities from campaigning on election issues." Of course, it is not against the "decades-old law" in question for pastors to "preach about American politics." For a more accurate and insightful account of the provisions regarding political activities by tax-exempt entities, check out this article by my colleague, Prof. Lloyd Mayer.
I addressed the issue a few years ago, in a USA Today op-ed:
It is the regulation of the churches' expression, and not their expression itself, that should raise constitutional red flags. Religious institutions are not above the law, but a government that respects the separation of church and state should be extremely wary of telling churches and religious believers whether they are being appropriately "religious" or excessively "political" or partisan. Churches and congregants, not bureaucrats and courts, must define the perimeter of religion's challenges. It should not be for the state to label as electioneering, endorsement, or lobbying what a religious community considers evangelism, worship or witness.Of course, there are good reasons — religious reasons — for clergy to be cautious and prudent when addressing campaigns, issues and candidates.Reasonable people with shared religious commitments still can disagree about many, even most, policy and political matters. It compromises religion to not only confine its messages to the Sabbath but also to pretend that it speaks clearly to every policy question. A hasty endorsement, or a clumsy or uncharitable political charge, has no place in a house of worship or during a time of prayer — not because religion does not speak to politics, but because it is about more, and is more important, than politics.
Tuesday, October 4, 2011
Berg et al. on "Religious Freedom, Church-State Separation, and the Ministerial Exception"
Tom Berg, Carl Esbeck, Kim Colby, and I co-authored an amicus brief in support of the Hosanna-Tabor school, whose case is being argued in the Supreme Court tomorrow. We also contributed a streamlined version of the brief to the Northwestern University Law Review Colloquy; the paper is not available yet at Colloquy, but it is available here, on SSRN. Here's the abstract:
The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism – the project of protecting political freedom by marking boundaries to the power of government – has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects – as ours does – both the importance of, and the distinction between, the spheres of political and religious authority is one in which the fundamental rights of all are more secure. A government that acknowledges this distinction, and the limits to its own reach, is one that will more consistently protect and vindicate the liberties of both individuals and institutions.
The “ministerial exception,” at issue in Hosanna-Tabor, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Because any worthwhile account of religious freedom would respect the authority of religious communities to select freely their own clergy, ministers, teachers, and doctrines, any such account must include something like the ministerial-exception rule. Reasonably constructed and applied, this rule helps civil decision-makers to avoid deciding essentially religious questions. In addition, and more importantly, it protects the fundamental freedom of religious communities to educate and form their members. Although the exception may, in some cases, block lawsuits against religious institutions and communities for discrimination, it rests on the overriding and foundational premise that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law’s corrective reach. The civil authority – that is, the authority of a constitutional government – lacks “competence” to intervene in such questions, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdiction.
Wednesday, September 28, 2011
The "Impossibility of (international) religious freedom"?
At the Immanent Frame blog, Amanda Kaplan links to Douglas Remy's review and discussion of Winnie Sullivan's (2005) book, The Impossibility of Religious Freedom, and how it relates to the discussions and debates about international religious freedom. The basic challenge, in Sullivan's view -- that is, the reason why "religious freedom" is "impossible" -- comes from the proposed fact that the would-be guarantor of religious freedom, i.e., the secular state, "cannot decide what religion is and cannot therefore guarantee its freedom. If the secular state were to define religion for purposes of litigation, it would be in violation of disestablishment clauses, which prohibit government from 'making laws respecting an establishment of religion.' In other words, the state cannot decide what counts as religion and what does not. If any state makes this determination, it has curtailed freedom of religion." As many MOJ readers will know, this diagnosis leads Sullivan to conclude that "religious freedom" is best protected simply by protecting equality.
Like my fellow-blogger Tom Berg, I don't think this (i.e., just protecting equality) is enough, and I'm do not agree that the difficulties which certainly attend the necessary task of "defining" (for legal purposes) religion make it "impossible" for the state to meaningfully, even if imperfectly, protect religious freedom. (FWIW, I reviewed Sullivan's book, and some others, in Commonweal a few years ago.)
Solum on well-being and happiness
Over at Larry Solum's invaluable "Legal Theory Lexicon," he has an entry on "well-being and happiness," which should be of interest to folks working on and thinking about Catholic legal theory, given the aretaic dimension of the Catholic tradition.
Jody Bottum on "Christian Provocations" and international religious freedom
This piece, by Jody Bottum, makes for bracing, but important reading. My own sense is that we in the United States can focus too much on (what strike me as) somewhat marginal threats to religious freedom (which is not to say that we do not face some grave and pressing ones), and overlook (what should be) the shocking and outrageous instances of real persecution and violence, of a kind that (thank God, and silliness about "theocrats" notwithstanding) we do not confront here.
I agree with Bottum that the response to the alarming anti-religious (in most instances today, anti-Christian) cannot be to tell the persecuted to behave more demurely. All human beings -- including, say, Christians living in Iran and China and Pakisatan -- have a human right to religious liberty (which includes the freedom to practice, and talk openly about, their religion). For the United States, given our great experiment in religious freedom -- one that it was hoped would "bring lustre to our country" -- it cannot be the right approach to join those who tell Christians to avoid persecution by hiding.
John Finnis on the Pope's address to the German Parliament
For an interesting interview with my colleague and rock-star jurisprude John Finnis, go here. A bit:
. . . I would say that true human freedom (as St Thomas says on the first page of his great treatment of morality) is the freedom of an image of God – one who has freedom of choice and exercises it in line with goods that are truly fulfilling – fulfilling for individuals and for the friendships and wider societies in which they find so much of their fulfilment. As Augustine says, just before the passage the Pope quoted – and here the saint is transmitting the philosophical tradition established by Plato and carried forward by Aristotle – the life of an individual who gives in to cupiditas is a life of enslavement to anxiety, insecurity, unslakeable lusts, and so forth. No true freedom that way. Nor by any “existentialist” “self-determination” by which one might seek to recreate oneself as a quasi-Nietzschean master, free from the constraints of human equality and justice. Perhaps also related to the Pope’s thought in these sentences is this: any manipulation of human nature, for example, by non-therapeutic genetic modification, makes the products of that manipulation the slaves of the manipulators, even if the latter were benevolently motivated.
Perry: "Is Capital Punishment 'Cruel and Unusual'?"
Continuing with MOJ's recent capital-punishment theme: Our own Michael Perry has a new paper on SSRN called "Is Capital Punishment 'Cruel and Unusual'?". Here is the abstract:
The right of every human being—every human being without exception—not to be subjected to any punishment that is “cruel, inhuman or degrading” is an international human right. A version of that right is entrenched in the constitutional law of the United States: the right of every human being—again, without exception--not to be subjected to any punishment that is “cruel and unusual”. In this paper, I inquire both whether capital punishment is “cruel, inhuman or degrading” and, next, whether capital punishment is “cruel and unusual”.
Michael concludes that the answer to both questions is "yes" (in part because capital punishment -- when considered in a global context, and not only in a national context -- has become "unusual"); he addresses elsewhere the question whether the "yes" answer to the second question means that the Supreme Court of the United States should rule that capital punishment (always) violates the Eighth Amendment. Check it out.
I oppose capital punishment for (I think) the same reasons that Michael does. But, in my view, it is problematic -- which is not to say I'm sure it's wrong -- to give much weight to the abolition of the death penalty in other countries when deciding whether capital punishment is "unusual" for Eighth Amendment purposes. One concern I have is that it is hard to say that the abolition of capital punishment in all of these countries has been the result of meaningfully democratic decisionmaking.
Tuesday, September 27, 2011
Catholic theologians' statement against capital punishment
Here (HT: Grant Gallicho) is a letter, signed by a number of Catholic scholars and activists, called "A Catholic Call to Abolish the Death Penalty." I agree with the letter's call. That said, two quick thoughts: First, my sense is that many death-penalty opponents are over-stating the matter when it comes to Troy Davis's factual guilt, and the "Georgia executed an innocent man" charge. I do believe that our executive-clemency and other post-conviction review procedures are inadequate, but I am not sure it is warranted to charge massive and unfair breakdowns in this particular case. The case, including the claimed new evidence, was carefully reviewed, several times. (My own thinking is closer to Chuck Lane's, here.) Of course, there is nothing remotely controversial or difficult about opposing the execution of innocent people; the challenge is to bear witness to the dignity of every human person by opposing the execution of people who are guilty of serious, awful crimes, as I still believe Troy Davis was (and as, for example, Timothy McVeigh was).
Second, I appreciate the fact that the theologians' letter calls specifically for legislative action to reform post-conviction procedures and abandon capital punishment. As I've said elsewhere with respect to this issue, although I want our legislatures to end capital punishment, and have worked to bring about that end, I don't think the Supreme Court should presume to strike down capital punishment as unconstitutional.
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