This essay, for the inaugural issue of the Journal of Christian Legal Thought, invites readers to consider the lessons of Pope John Paul II’s “Evangelium Vitae” for modern lawyers. The essay argues that Pope John Paul’s well known encyclical is both a strong, eloquent defense of vulnerable human life, as well as a call to all those involved in the law to consider the demands of law, conscience, and morality in the public and private spheres.
This paper considers similarities between types of religious obligation and obligations to observe or address human rights. The paper asks if there are any developing themes or rules to help us to know which, of religion or human rights, trumps the other and if so when? The paper addresses such issues from the background of an Orthodox Jewish approach to human rights. Human rights appear to be cultural rather than rationalist since they are not universal. Since no right is absolute and therefore all rights are relative what happens when religious duties clash with human rights or when the right to practice a religion clashes with some other human right? Three problematic areas of Jewish religious practice are considered: circumcision, kosher treatment and slaughter of animals and the get divorce in which the man has to give the woman the divorce. The law of the State is the one which must be obeyed as a principle of Jewish law. If we are in the world of competing rights or balancing rights then Dworkin has much to say. Cultural and religious dress and traditions are causing problems on the European continent, arranged marriages might be right, but forced marriages wrong. The paper ends with the balanced rights of a Canadian Charter case on a Québecois Succa.
This short essay takes as its starting point on the Supreme Court’s recent decision in Winn v. Arizona Christian Tuition Organization, which involved an Establishment Clause challenge to Arizona’s scholarship tax program — a school-choice device that provides tax credits from state income taxes for donations to organizations granting scholarship to private K-12 schools. In Winn, a divided court ruled that taxpayers lack standing to challenge this and other tax credit programs — thereby dramatically limiting the Flast v. Cohen exception to the no-taxpayer-standing rule. The essay makes the case that the Winn will promote authentic educational pluralism by clearing the constitutional path for further expansion of scholarship tax credit programs, which enhance the educational opportunities available for students of modest means.
A recent study by Christopher Peterson & Steven Graves found that “payday” lenders are more prevalent in conservative Christian areas. This paper offers a supplement to Peterson & Graves findings by adding to the discussion the perspective of the Christian churches, located both inside and outside of the areas implicated in the study, on the issue of poverty and its connection to predatory lending practices. This paper’s study employed ethnographic research methods to uncover Christians' perception on these issues. The findings do not support the social/political stereotype that conservative Christians necessarily support conservative political positions regarding usury laws, but instead suggest a more fundamental issue with the Christian church actually accomplishing its mission of applying Biblical teaching to all areas of life, which include one's financial dealings and providing for the poor in one's community.
Amid on-going battles over the place of religious groups and even religion itself in the marketplace of ideas known as American public education, the United States Supreme Court added fuel to the fire in Christian Legal Society v. Martinez. In Christian Legal Society, the Court affirmed an order of the Ninth Circuit, agreeing that officials at a public law school in California had the authority to implement a policy effectively marginalizing religious freedom by requiring an on-campus religious group to admit all-comers from the student body, including those who disagree with its beliefs, as a condition of becoming a recognized student organization.
On remand for consideration of whether law school officials applied the all-comers policy selectively to the Christian Legal Society (CLS), the Ninth Circuit joined the Supreme Court in placing another nail in the coffin of religious freedom. In so doing, the Ninth Circuit rejected the claim of the CLS on the ground that organizational leaders failed to preserve their argument that law school officials selectively applied the policy for appeal, making it apparently the only public institution of higher learning in the United States with such a policy in place.
Whether Christian Legal Society is a victory for those who think that students should not be subject to discrimination due to their religious beliefs or a setback for religious freedom depends, of course, on one’s point of view. Regardless of how one interprets Christian Legal Society, it has the potential to change the landscape of religious freedom in the United States dramatically insofar as officials can potentially block faith-based groups from public facilities. In light of the ramifications for religious freedom that Christian Legal Society raises for the United States and the United Kingdom, the remainder of this article is divided into two major parts. The first section reviews the facts, judicial history, and the opinions in the Supreme Court’s ruling in Christian Legal Society. The second part reflects on what Christian Legal Society means for religious freedom in educational settings. The article rounds out with a brief conclusion.
This paper addresses implications for urban neighborhoods of two dramatic shifts in the American educational landscape: (1) the rapid disappearance of Catholic schools from urban neighborhoods, and (2) the rise of charter schools. In previous studies, we linked Catholic school closures to increased disorder and crime, and decreased social cohesion, in Chicago neighborhoods. This paper turns to two questions unanswered in our previous investigations. First, because we focused exclusively on school closures in our previous studies, we were uncertain whether our results reflected the work that open Catholic schools do as neighborhood institutions or whether we were finding a “loss effect.” Second, since we have thus far focused on one type of educational institution, we could not say whether we were finding “school effects” generally, or “Catholic school effects” in particular. In this paper, we begin to answer both questions by comparing the effects of open Catholic and charter schools on neighborhood crime rates. Relying on police-beat-level data, we find that that police beats with open Catholic schools have lower rates of serious crime than those without one. Usually, a charter appears to have no statistically significant effect on crime rates. Our findings are important for a number of related reasons discussed in the paper.
When I was a child, the chant I always associated with Islamism was “the Qur’an is our constitution.” Gradually it has been replaced, however, with the mantra of the Muslim Brotherhood in Egypt, “Islam is the solution.” These simplistic tropes seem similar, but the difference between them is significant. In many ways, this distinction lies at the heart of the considerable contribution that Ran Hirschl has made in his fine work, Constitutional Theocracy, to the understanding of constitutional governance in societies where there is a substantial legal and formal recognition of religion. However, this distinction also reveals the biggest problem in his analysis. Simply stated, one of these slogans (“the Qur’an is our constitution”) is logically incompatible not only with modern constitutional governance but also with the very notion of the Westphalian nation-state, while the other (“Islam is the solution”) is not.
To many people raised in a secular tradition, constitutional governance is necessarily secular. It is precisely this belief, often so thoroughly internalized that it is not questioned, that Hirschl convincingly critiques. While he acknowledges that the marriage of theocratic and constitutional governance is one fraught with friction, Hirschl also points out – correctly – that the two systems have far more in common than has been previously acknowledged. Less convincing is what I might describe as an ancillary thesis, though one Hirschl takes quite seriously, which is that the constitutional theocratic structure is a rational and prudent secular response to growing global religious fervor. Hirschl argues that constitutional theocracy is designed to empower courts, with their secularly trained elite judges, to interpret religious mandate, thereby constraining, limiting, and in some cases neutering the more radical religious claims. I do not mean that Hirschl is entirely entirely wrong about this, for surely he is describing some fair number of constitutional theocratic states accurately. Yet understood as a global feature of constitutional theocracy, his description seems flawed in at least two respects. First, the notion of court as secularizing agent may be widely applicable but, as Hirschl well knows, is by no means universal.
Second, and more importantly, Hirschl seems to be conflating two different phenomena. The first are traditional and informal forces of law-making and law interpretation, from tribal councils to local priests (i.e., those likely to proclaim Qur’an as constitution), that any state instrument, including a court, would seek to constrain and limit for reasons that anyone who has read her Weber knows well. The second are religio-political movements operating within the state and competing for maximum control over state institutions and apparatus. To assume that these immensely popular movements, which are perfectly comfortable within a national constitutional structure (but still believe Islam to be the solution), will not be able to exercise significant influence over a judiciary seems fanciful and difficult to defend, at least as an empirical matter. It seems that Hirschl therefore describes not so much the successful constraining of religion by forces of secularism so much as the destruction of the traditional mechanisms for the creation of religious law and their replacement with something altogether different – whether the new mechanisms be secular or simply some dramatic mutation of religio-legal norms as to enable them to fit better within a modern state paradigm.
The review proceeds in two Parts. Part One describes Hirschl’s central thesis and explains why it is a fresh and compelling contribution. Part Two describes the ancillary claim that the courts in constitutional theocracies operate as secular agents and some of the problems associated there with.
