ReligiousLeftLaw.com

Covid-19 and Religious Liberty

Readers of this blog might be interested in my recent post on Canopy Forum trying to shed some light on the current theological and legal debates about shutting down live religious services during this time of plague.

Perry Dane

Christmas, again

This is the time of year when I typically draw attention to my short, unpublished, essay about the legal and cultural complications of Christmas.  It's available here.  

The piece speaks for itself.  But I do have a few more thoughts in the light of the most recent kerfuffles about the so-called "War on Christmas" and Donald Trump's belligerent crusade on behalf of "Merry Christmas."  It's tempting to dismiss the whole business as just a load of silliness.  There is no "War on Christmas."  And like most folks, I am quite indifferent this time of year to how I am greeted, or whether I am greeted, by casual strangers.  That said, though....,

(1) My point in the original essay was not to deny or minimize the "secular" side of Christmas, either culturally or historically, but rather to emphasize that the "religious" and "secular" dimensions of the holiday are not easily separated or compartmentalized.  They are intermeshed.  And they are also, and have long been, engaged in a complex dance that often verges into active competition. 

(2) We should therefore be sympathetic to the plea of many Christians to "keep Christ in Christmas," not because there ever was a pure Golden Age of Christmas, but because the present era seems particularly intent on appropriating Christmas for un-Christmasy ends.

(3) Trump's campaign, however, along with much of the nonsense about the alleged "War on Christmas," has nothing to do with "keeping Christ in Christmas."  It is just another instance of the worst of identity politics -- a demand for symbolic affirmation and an exercise in self-gratification.

(4) In fact, it's worse than that.  I've said that the "religious" and "secular" dimensions of Christmas are intermeshed.  But the "secular" side itself has two distinct elements -- one emphasizing humility, goodwill, peace, and hearth, and the other emphasizing bluster, glitz, and public spectacle.  The trick, which much of the best of what we call the "commercialized Christmas" actually strives for, is to keep those elements in creative tension or equipoise.  But Trumps's Christmas is just an extension of Trump himself -- narcissistic and aggressive.  So sad.

(5) Nevertheless, folks on the cultural or political left should not feel too smug about their own embrace of "Happy Holidays," "Holiday Season," or the like.  Culturally-laden language, of whatever sort, is inevitably fraught and complex. 

"Merry Christmas" itself might have any of the following meanings, or more:

(a) "Blessed birthday of Jesus."

(b) "Merry secular Christmas."

(c) "Merry complicated Christmas."

(d) "I'm celebrating Christmas, no imposition intended on you."

or (e) Ahem, "Happy Holidays." 

More to the point, terms such as "Happy Holidays" can mean any of the following, or more: 

(a) Genuine and well-informed gestures toward religious and cultural pluralism.  But this is both more rare and more difficult than we might think.   For example, by now my significant holiday this time of year -- Hanukkah -- is over.  Finished.  In the past.  And there is no such thing as a "Hanukkah season."  So anyone saying "Happy Holidays" right now and intending to include Hanukkah should think twice.

(b) Well-meaning but naive or ill-informed gestures toward religious and cultural pluralism.

(c) A reference to an ill-defined "holiday season" with Christmas at its heart.

(d) A more specific reference to the period between Christmas and New Years Day.

(e)  Just a synonym for, ahem, "Merry Christmas."  This seems to be a regional thing, at least in part.  See here.

(f) A euphemism for "Merry Christmas."  The difference between a synonym and a euphemism is that euphemisms make a pretense of being what they are not.  And euphemisms, though sometimes useful or even vital, should not be source of excessive self-congratulation.

So what's the solution?  If my little essay is to be believed, there is none.  Christmas presents intractable dilemmas, both legal and cultural.  And we shouldn't pretend otherwise.

But that's OK.  

So, in this season of darkness giving way to light, I wish all who celebrate a Merry Christmas and all who do not a fine day and a Happy New Year.

Perry Dane

The Immigration Executive Order and the Structural Establishment Clause

The Trump administration, in defending Trump's notorious anti-immigrant and anti-refugee executive order in the current emergency proceedings before the federal Court of Appeals for the Ninth Circuit, makes essentially two sorts of arguments.  One type of argument goes to to the specific constitutional and statutory merits of the order.  The government's brief thus suggests that the executive order doesn't engage in religious discrimination, doesn't violate due process, and so on.  The other type of argument, though, goes to the more general claim that at least "those aliens [who] are outside the United States and have never been admitted to this country" can assert no constitutional rights in the first place.  The brief quotes language in Landon v. Plasencia, 459 U.S. 21, 32 (1982) asserting that the Supreme court “has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” 

Let's assume for the sake of argument that this second type of argument is correct.  Let's assume that refugees and other aliens who have never been admitted to this country have no individual rights under the Constitution.  And let's assume that nobody now in the country (such as family members, potential employers, and so on) could assert rights on their behalf.  That might dispose of constitutional arguments for due process, equal protection, and even free exercise of religion.  But it would not -- could not -- negate arguments under the Establishment of Religion Clause of the First Amendment.  The reason is that the Establishment Clause is not primarily a rights provision at all.  It is a structural provision of the Constitution, resembling principles of federalism and separation of powers.  It's point is not so much to protect individuals (the Free Exercise of Religion clause does that), but to protect the polity as a whole from any government effort to enmesh itself too deeply into religious affairs.

Imagine, for example, that Congress passed a law declaring Presbyterianism to be to the official religion of the United States, but also making clear that no person's legal rights, entitlements, or obligations would be affected by the declaration.  Such a statute, even with that proviso, would constitute an unconstitutional establishment of religion. 

Now imagine that Congress passed a law explicitly barring Buddhists from entering the country, but, just to be on the safe side, excluded from the ban "any person entitled under the Constitution to assert a claim to an individual right to enter the United States."  The effect would be to allow admission to Buddhists who were, say, green-card holders, visa holders returning from a trip overseas, and so on, while still (for the sake of argument) excluding Buddhist aliens "seeking initial admission."  That statute, even with the clever exception, would still violate the Establishment Clause by baldly discriminating on the basis of religion.

The religious discrimination in Trump's executive order is a bit more subtle.  But it's also clear.

Of course, even Establishment Clause claims require a plaintiff with legal standing.  But that need not be the alien denied admission.  

Perry Dane

The Gorsuch nomination

Some quick and partial thoughts on Trump's nomination of Neil Gorsuch to the Supreme Court:

1. This country's system for appointing federal judges is, by world standards, bizarre.  No other advanced nation, to my knowledge, has a judicial selection system that is so political and politicized.
   
   
2. Ideally, we would radically reform the system, either by constitutional amendment or by a less formal grand compact between the political parties.
   
   
3. But that seems unlikely anytime soon.
   
   
4. In the meantime, the best medium-term hope is that we can somehow lower the temperature on both sides, and resist the temptation to turn nominations to the Supreme Court into occasions for bitter political theatre.  In fact, we actually managed to do precisely that through most of the last two presidential administrations.
   
   
5. Neil Gorsuch is by all accounts smart, thoughtful, principled, decent, and eloquent.  (I don't know much about him, and am willing to be corrected, but I have no reason to think otherwise.)  Democrats should not try to besmirch him or try to characterize him as a judicial pariah.  If there is to be a fight about his nomination, it should not be focused on him as a judge or as a person.
   
   
6. On the other hand, it is scandalously true that this nomination would not have been Trump's to make had the Republicans not stolen President Obama's opportunity to put Merrick Garland on the Court.  The reasons they gave for not even giving Garland a hearing were unprecedented, specious, sophistic, and hypocritical.
   
   
7. So it would be perfectly reasonable for Democrats (and democrats and constitutionalists) to argue, not that Gorsuch is a particularly unworthy nominee, but that the only way to unwind the Garland travesty is by insisting on a genuine consensus candidate.  Or, as Trump has put it in a different context, it might be time to insist on a pause until the politicians “can figure out what the hell is going on.” 
   
   
8. There's also a decent argument that in these extraordinary times, with Trump in the White House, resistance in many forms is important, and morally and politically justifiable.  But, again, the point should be resistance to Trump, not overwrought attacks on Gorsuch.

Perry Dane

Reasonable and Unreasonable Postmodernisms

The Oxford Dictionaries declares "post-truth" to be their "word of the year" for 2016.  That decision confirmed, as if it needed confirming, that we are suffering through a crisis in public discourse.  The "post-truth" crisis is not entirely partisan.  Think of the celebrities who peddle a nonexistent link between vaccines and autism or the activists who refuse to accept that genetically-modified foods are probably quite safe.  But the rise of Donald Trump has emphasized how much "post-truth" has become a distinctively right-wing phenomenon in America.  Politicians who are smart enough to know better deny climate science and reject simple economics. Trump, now sitting in the Oval Office, continues to declare that his Inauguration crowds were the hugest ever and that several million illegal ballots were the only reason he didn't win the popular vote.  Kellyanne Conway champions "alternative facts."  

I am not the only one who wonders sometimes whether our descent into post-truthism is simply the revenge of postmodernism.  What were once abstract literary and philosophical theories often identified (not entirely accurately) with left-wing academics seem to have burst the dam and spilled over to the public sphere, and to at least the wildest corners of populist rhetoric and right-wing politics.

This all came home to me a while ago in an exchange with a distant acquaintance who also happened to be a Facebook friend.  My Facebook friend, a diehard but not very intellectual Christian conservative, had posted one of those crazy memes quoting a foreign leader as allegedly saying that the American people must be a "confederacy of fools" to have elected Obama.  I responded as I am wont to do, by pointing my friend to the Snopes site that debunked the crazy claim.  My friend did not take that well, accusing me of trying to be the "Facebook police."  No, I replied, I was just pointing out a factual falsehood.  Then, in a series of further exchanges, my friend made essentially three arguments:  

First, though there was no evidence that the former foreign leader had said those words about Obama and America, I couldn't prove that he hadn't said those words.  (I've heard similar responses from other people in other contexts, as if factual burdens of proof don't exist or don't matter.)

Second, my friend said that I had my truth, and she had hers.  (Relativism run amok.)

Third, with respect to our separate truths, my friend reminded me that she believed that Jesus died for our sins and was raised from his tomb, and that I (as a Jew) did not.  I told my friend that I would never challenge her belief in Jesus, but that there was a real difference between fundamental religious commitments and the simple question of what a certain Czech politician did or did utter certain words.

Of course, I got nowhere.  My friend had her truth, and I had mine, and that was that.

My friend never went to any fancy schools, but the echo of a certain sort of academic jargon is clear.  

The irony here is rich, of course.  An academic jargon designed in part to unsettle our fixed beliefs and prejudices has percolated into habits of mind that only reinforce clearly false beliefs and buttress dangerous prejudices.

But it's also important to separate the wheat from the chaff.  For what it's worth, I consider myself something of a postmodernist fellow traveler.  See, for example, here and here.  Postmodernism has, I think, illuminated by legal scholarship.  And, as a religious believer, I am convinced that some form of postmodernism is necessary to maintaining and defending religious belief under conditions of modernity.  But there's always been a difference, even in the academy, between deconstructive and constructive postmodernism, or, more bluntly, between a reasonable and unreasonable postmodernism -- between productive complexification and simple bedlam.

So here's a manifesto of sorts for a reasonable and constructive postmodernism, a postmodernism that tries to overcome the flaws in modernist foundationalism and scientism while also rejecting the crudest, most Trumpian, forms of post-truthism.  (This is a manifesto on a blog, not an attempt at philosophy.  The point is just to set down a marker.)

"The Holidays"

This is around (or actually after) the time of year when I often pitch my short unpublished essay on the legal and cultural complications of Christmas.  See here.

That essay speaks for itself.  But here are some additional reflections:

Donald Trump, among his innumerable other tirades and sputterings, has made a point of trying to reignite the "Christmas Wars" and in particular attack the use of phrases such as "Happy Holidays."  It is very tempting to rush to the defense of "the holidays" (as a phrase), if only because Trump's tirades were so obviously coded and pandering.  But, in fact, greetings such as "Happy Holidays" and phrases such as the "the holiday season" are complicated and fraught in their own ways, and are actually a symptom of, rather than a solution to, the culture's Christmas puzzle.  This, I should emphasize, has nothing to do, for me at least, with any sense of psychological "offense" or personal affront; I'm on record as arguing that we focus too much on offense and affront in our thinking about religion, state, and culture.  See here.  But our words, in their various complex dimensions, do reflect and shape our conception of the culture and the nation, and their relation to our own beliefs and traditions.  So analyzing these usages is important in its own right quite apart from whether anyone is or should be offended or affronted.

So here's the dilemma:  "Happy Holidays" and "the holiday season" and the like can have a range of meanings.  At one end of the continuum, they can reflect a genuine and generous acknowledgment of religious and cultural pluralism and an effort to cast as wide a celebratory net as possible.  At the other other end, though, they can simply be cheap euphemisms for "Merry Christmas" or "the Christmas season," albeit a secularized or evacuated version of Christmas.  Correspondingly, objections to "Happy Holidays" and the like can either express a rejection of religious pluralism or just an objection to the secularization of Christmas.  The former is simple and often ugly bigotry.  But the latter is understandable.  In fact, liberals who complain about "cultural appropriation" in other context should also, by all rights, have some sympathy for folks who see Christmas being both transformed and stolen out from under them in favor of a flattened, content-less, and commercialized shadow of itself.  

(I do not mean to suggest that the "secular" Christmas is illegitimate.  But it is only view of the cathedral, so to speak.  And, as a I argue in my "Christmas" essay, even those elements of Christmas that might appear at first glance to be purely "secular" also do double duty as cultural accessories to the religious celebration.  

In addition, a part of the picture that I did not fully appreciate when I wrote the essay is that there are actually two distinct versions even of the "secular" Christmas:(1)  the very old, quasi-pagan, festival of raucous excess, which has long been at war with the religious celebration of the birth of Jesus, and (2) the celebration of love, home, hearth, and childlike wonder so successfully invented and promoted by Dickens, Nast, and Moore in the 19th century, whose relationship to both of the older dimension of the holiday is both rich and ambiguous, particularly in the central role it gives to children.)

Further complicating the picture is that, between their straightforward polar meanings, terms such as "the Holidays" can also refer, least happily perhaps, to a putatively pluralistic cluster of holidays that still clearly revolves around Christmas at its core.  I am thinking of the menorah plopped down next to the Christmas tree or the notion of a "holiday season" that clearly leads up to December 25 regardless of when other holidays might actually fall.  This is a sort of faux pluralism that gestures toward interreligious and intercultural recognition, but doesn't actually seek to understand or acknowledge anything beyond its own orbit.  (That notion of a "holiday season," by the way, is also problematic for a different reason.  For serious Christians, the period before Christmas is Advent, a time of preparation and contemplation, not premature celebration.  And for serious Jews, Hanukkah -- unlike some other Jewish holidays -- does not have a "season" at all; it begins on a given day and ends after the eighth day, and that's it.)  

One problem, of course, is that it is often hard to tell, in any particular context, either the meaning of the words or the nature of the objection to them.  For that matter, it is fair to say that as often as not, even the people uttering the words and  the people objecting to them don't fully understand themselves what they have in mind.

So what's the solution?  I have no idea.  As I say in my essay about Christmas, this dilemma is also probably intractable.  There might be no satisfactory answer.  I certainly am not recommending a surrender to Trump and his supporters, heaven forbid.  But I am suggesting that the rest of us should not just naively congratulate ourselves for appearing tolerant and open-minded in disagreeing with him.  And I am arguing that all of us should be more conscious of both the ambiguities of pluralism in a dominant culture and the complex interplay of categories such as "secular" and "religious."

Also, to reiterate, we need to think about these questions without just focusing on the psychologism of "offense" or validation.  For myself, for what it's worth, I usually take any and all greetings around this time of year in their stride.  And when I do feel put out, I quickly realize that, at some level, nothing satisfies me:  Say "Merry Christmas" and I'd like to respond (though I almost never do), "I don't celebrate Christmas."  Say "Happy Holidays," and I'm tempted to ask, "And which holiday, exactly, did you have in mind?"  Or say nothing at all and leave me feeling out of the loop.

A final note: 

For some relatively recent polling on the "Merry Christmas"/"Happy Holidays" conundrum, see, for example, here and here.  The result that fascinates me most, though, is the geographical divide revealed here:  Northeasterners,not surprisingly, tend to prefer "Happy Holidays."  Midwesterners, also not surprisingly, prefer "Merry Christmas."  But more Southerners prefer "Happy Holidays" just because that happens to have historically been an African-American usage.  And Westerners prefer "Merry Christmas" because, remarkably enough, many parts of the West have become so nonreligious that the secular dimension of Christmas is just taken for granted.  Stay tuned.

Perry Dane

"My Name is Great Among the Nations"

Some readers of this blog might be interested in my recent D'var Torah (sermonette) focusing on the remarkable passage at Malachi 1:11 and touching on questions relating to the theology of interreligious understanding.  See here.

Perry Dane

Thoughts and prayers

For what it's worth, this is what I wrote on Facebook last night:

I was disappointed when Reagan won, when Bush won, when W won. But I don't remember the same sense of sheer physical illness that I'm feeling at the prospect that Trump could win. I do hope, for the sake of the country, that Trump can rise to the occasion, that he can be transformed by the office he will fill. But don't count on it. Time to weep

---

It is still time to weep.  And to act.  But also to pray.  

In this first year since my mother's death in June, I've been trying as much as possible to attend synagogue services in the morning and evening, in part to be able to recite Kaddish (which, incidentally, is not the Jewish prayer for the dead, but that's a topic for another time.)  But I've also resolved not to sacrifice my health, so when I stay up late the night before, I turn my alarm off.  So having both stayed up and had a restless sleep, I didn't think I would make it to services this morning.  But I woke up in time and got myself to my synagogue.

The service had a bit of a feel of a shiva minyan, normally held at the home of a mourner during the first week after a loved one has died.  But it was also comforting in the way that shiva services are - a collective act that both channels and transcends individual sorrow.  I'm glad I went.

Three moments worth noting:

1. The silent Amidah, a set of 19 prayers/blessings that is recited individually, is one of the two peaks of the daily morning service.  One of those prayers/blessings is a petition for the healing of the ill, during which one can (silently) add the names of specific relatives, friends, and even friends of friends who are ill.  In addition to including two names that I have recited for a while, I spontaneously added "the United States of America."  I don't know if this was halakhically appropriate, and I don't plan to make a habit of this gesture.  But it seemed right at the moment.

2. At the very end of the daily morning service, before the last Kaddish, the congregation recites a psalm designated for the particular day of the week.  The sequence of daily psalms leading up to the Sabbath is worth some analysis in itself.  But, by sheer chance (or not!), the psalm for Wednesday, Psalm 94 (along with the first three verses of Psalm 95), begins with these words:

God of retribution, Eternal God, God of retribution appear.

Judge of the earth, give the arrogant their desserts.

How long, Eternal God, how long shall the wicked exult?

They pour out arrogance, swaggering, boasting.

I have to admit that on hearing these words, and especially the part about swaggering and boasting, I laughed out loud.  In fact, I cracked up.  I couldn't help myself.  It was my first good laugh in a while.  Yes, there is a God.

I hear that our President-Elect's speech last night was not swaggering or boastful.  He managed to hold it together.  I actually want to believe my friends who think that his whole campaign was an act, and that he will be a more or less normal Republican President.  But I'm reserving judgment.  In the meantime, though, I take some comfort in other portions of the psalm we read this morning:

The Eternal God knows human schemes, how futile they are....

Are you allied with seats of wickedness, those who frame injustice by statute?....

God will repay them for their wickedness, destroy them with their own evil....

Let us greet God with praise and sign songs in joy.  The Eternal God is exalted, beyond all that is worshipped.

For believers and (I hope) nonbelievers alike, these words are powerful, and might help us gain some perspective on the political crisis of the moment.

3. Speaking of perspective:  I discovered after services that another long-time attendee, who had also been saying Kaddish for a parent, lost her husband a few days ago after a long illness.  Political defeat, however sorrowful and anguishing, is not death.  We need to remember that too.

Time to start the day.

Perry Dane

The Bathroom Wars

So, on the one hand, …. I find myself befuddled by the North Carolina “bathroom law” and other extreme responses to transgender rights and the assertion of transgender identity.  I say this as someone who generally appreciates the force of conservative views of sex and sexuality even when I disagree with them.  For example, though I fully support same-sex marriage, I am on record arguing that the debate was more complex than partisans on either side wanted to admit.

But the transgender question is different.

I do understand some basic premises of the “traditionalist” position.  (I use the term “traditionalist” simply as shorthand here, not to derogate the value or legitimate power of “tradition.”)

Simply put, I think it is right that human beings are both embodied and embedded creatures.

 We are embodied in the sense that biology matters.  We are not simply the products of our own will or emotions, but also of our bodies.  And sexual difference is a fundamental biological fact, not only for human beings but for most species on Earth.  To be sure, we are not reducible to our sexual differences.  Nor should our sexual differences determine our status or rights or occupations or ambitions in life.  But sexual difference is not nothing.

We are also embedded.  We are not merely lone selves, but parts of larger social structures.  And one of those structures is the male-female pair with its capacity and responsibility to reproduce the species.  Not all human beings fit into this particular structure.  For that matter, reproduction – in the broader sense of taking responsibility for raising and nurturing children – neither needs to be nor should be limited to the structure of male-female pairs.  That’s one reason that I support same-sex marriage.  Moreover, the particular forms that the social structures of male and female identity have taken in man societies, including our own, has often been profoundly oppressive and constraining of individual human potential.  But the basic abstract structure – and the sexual identities that come together to form it – are still a vital part of the larger human constitution.

None of this, though, justifies the hostility to assertions of transgender identity and transgender rights.

"Decent and honorable religious or philosophical premises"

As I suggested in my last post, one of the most significant insights in Kennedy's opinion today is his acknowledgment that many opponents of same-sex marriage, "reach that conclusion based on decent and honorable religious or philosophical premises.” Compare that to the very different language in Loving v. Virginia: "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies [laws banning interracial marriage]. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."

At the same time, though, it might now be incumbent for opponents of same-sex marriage, however much they disagree with today's decision, at least to acknowledge that it is not an attack on marriage, but rather an effort to ennoble it.

In a more practical vein, that line in Kennedy's opinion might have important repercussions in the exemption cases that are sure to continue to come down the pike. That is to say, it will be harder to argue that the assorted bakers and the like who decline to offer services explicitly related to same-sex marriages are merely ignorant or arrogant "bigots."

Justice Kennedy on Same-Sex Marriage

Justice Kennedy’s opinions in gay rights cases have always reached for rhetorical heights, and some critics confuse that with mushy thinking. But his decision in Obergefell is compelling precisely because it avoids some of the cheap clichés that have marked many prior lower court opinions declaring a right to same-sex marriage.  (I've critiqued some of those earlier efforts in my own prior work, including "A Holy Secular Institution," available here, and "Natural Law, Equality, and Same-Sex Marriage," available here.)

Justice Kennedy, writing for the Court, does not claim that opponents of same-sex marriage are merely bigoted. To the contrary, he acknowledges that many opponents “reach that conclusion based on decent and honorable religious or philosophical premises.” Justice Kennedy does not hold that bans on same-sex marriage are simply “irrational” as some other judges have. Instead, he relies on the fundamental right to marry.

Other courts have only thought it possible to uphold a right to same-sex marriage by hollowing out the significance of marriage itself. But Justice Kennedy does just the opposite. Thus, while the Massachusetts Supreme Judicial Court insisted that civil marriage is a “wholly secular institution,” a mere civil contract, Justice Kennedy emphasizes the “centrality of marriage to the human condition” as reiterated in “untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths.” Similarly, Justice Kennedy does not dismiss the link between marriage and procreation. Instead, he holds that one reason “for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education” (while also insisting that the exercise of the right in particular cases cannot be conditioned on the ability or willingness to have children.)

More generally, Justice Kennedy argues that “Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.” And, similarly, near the end of the opinion, he writes: “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.”

This is, in short, in many of the best respects, a deeply “conservative” opinion, upholding not only the right to same-sex marriage but the abiding constitutional, cultural, religious, and moral significance of marriage itself.

(Cross-posted elsewhere.)

Overflowing Love

Some readers of this blog might be interested in this D'var Torah (literally "word of Torah" or homily) that I delivered this past Thursday, the first day of Rosh Hashanah, at the Merion Tribute House Service in Merion, Pennsylvania:

Rosh Hashanah is the anniversary of . . . . the anniversary of what?

We often think of Rosh Hashanah as the anniversary of the creation of the world, or maybe of the first day of creation.  “Hayom harat olam,” – “today is the birthday of the world” – in the words of the liturgy after we blow the shofar during Musaf.

But it’s not so simple. Of course it’s not so simple. In the Talmud, Tractate Rosh Hashanah, the Rabbis debate when the world was created. Some support the first of Tishri – today. Others arguing for the first of Nissan – the month of Passover. But the prevailing midrashic view, captured in Leviticus Rabbah, is that Rosh Hashanah – today – is actually the anniversary of the creation of the first human being on the sixth day of creation. (Put aside the irony that although the first Rosh Hashanah fell on a Friday, in the fixed calendar by which we now abide, the first day of Rosh Hashanah – today – can never fall on a Friday.)

So, if Rosh Hashanah marks the anniversary of the creation of humanity, then, in fact, the anniversary of the beginning of creation falls on the 25th of Elul, almost a week earlier. So maybe we should sing, not “Hayom harat olam,” but “Hayom harat Adam.” Or maybe that’s the point – the microcosm of Adam is the macrocosm.

But let’s move on. According to the midrash, humanity was created at the very end of the sixth day of creation. Or maybe after the very end. The Rabbis wonder why Genesis tells us that on the seventh day, “God finished the work that God had been doing and rested.” What part of the work – the work of creation – was left to finish on what should have been a day of rest? One view is that on Shabbat, God created rest itself. But another view, almost heretical, is that God created humanity at the very last possible instant on the sixth day, so late that, in human halakhic terms it was already Shabbat. Of course, God, being God, can measure time so precisely that from God’s view it was still Friday. But the fact remains that, in halakhic terms, God finished the work of creation by creating humanity on Shabbat.

God, the great procrastinator.

Or let’s try another image. God the long-childless but yearning woman, who gives birth after all hope seemed to have been lost, when it is by all accounts too late. Our Torah reading today, after all, is not about either the first day or the sixth day of creation, but about – among other things – the birth of Isaac to Sarah, the quintessential long-childless (“barren” in the traditional if problematic jargon) woman visited by a miracle so remarkable that she laughs. And the Haftarah is about Hannah, another long-childless woman, who’s prayer for a child has become the paradigm of silent prayer for us all. For these women, birth comes at the last minute – or after the last minute. It is possible only because God’s time is not our time.

And so God too was a once-“barren” but eventually fertile woman, giving birth on what human timekeeping would consider Shabbat, the day of rest, only because God’s time is not our time.

After all, the word “harat,” as in “Hayom harat olam,” is etymologically connected to pregnancy and birth, as in “herayon” and “horeh.” And, as I emphasized in a drash here in this room during Yom Kippur of 2002, God’s attribute of Malkhut – kingship – which features so centrally on these Yamim Noraim, is associated in the Kabbalistic mind with God’s most immanent connection to the universe and with the Shekhinhah, God’s feminine side.

God was a “barren” woman, which is not a pejorative term here, particularly after those six remarkably productive days of creation. An incredible achievement. But this childless woman was still without what she so desired – what Sarah no longer could hope for and what Hannah desperately prayed for – an offspring made in her own image.

And they all lived happily ever after.

Not quite.

The Battlefields of Hobby Lobby

When claims for RFRA exemptions from the contraceptive mandate first popped up, I thought that the issues they raised were, on the whole, humdrum. That’s not to say that the cases were easy. But they did involve, or so I believed, largely settled principles. The difficulty was in accommodating those principles to each other on these facts. So as the debate progressed, I was most interested in how both sides described their run-of-the-mill legal dispute in apocalyptic terms, as either a fight for the very principle of religious liberty or a battle against religious tyranny. In an earlier unpublished essay, I argued that each side seemed committed to understanding the dispute, not in the “retail” terms of free exercise disputes, but as jurisdictional conflicts more akin to arguments about the “wholesale” line between the proper scope of church and state. The Supreme Court’s majority opinion in Hobby Lobby – whatever one thinks of the result – was admirably low-key in focusing on the mundane question of whether the original contraceptive mandate was the least restrictive means to achieve a compelling government interest. But that hasn’t stopped the combatants from continuing to wax epically and balefully, and continuing to tussle even in the narrower space left by the Court’s opinion.

Three things might be going on.

In the company of John Updike (Not!)

Some readers of this blog might be interested in a letter to the editor that I had published in the current issue of the New Yorker.  Click here and scroll down.  The comment to which I was responding is here.

UPDATE:  The text on the New Yorker website has now been corrected to reinsert two important words that had been accidentally deleted from my original letter.

More on an Rewinding the Tape

In my last post, I argued that had the Supreme Court -- a la Justice Thomas's concurrence in the Town of Greece case -- never "incorporated" the Establishment Clause against the States, it might still have developed broadly similar limits on state authority by way of the Free Exercise Clause.  (It might also have done so by way of Equal Protection or Due Process or otherwise, but I'm going to focus on Free Exercise here.) 

I want here to suggest three observations -- not so much full-blown arguments as data points -- supporting that counterfactual conclusion.

Justice Thomas, Town of Greece, and Rewinding the Tape

I've blogged about my take on the Town of Greece prayer case both before and after the decision came down.

Here, though, I just want to look at the first part of Justice Thomas's provocative dissent.  Justice Thomas argues there that the Establishment Clause is "best understood as a federalism provision" denying Congress "any power to regulate state establishments" and, for that reason, should never have been "incorporated" via the Fourteenth Amendment's Due Process Clause to apply against the states it was originally meant to protect.  Thus:  "If the Establishment Clause is not incorporated, it has no application here [in a suit against the Town of Greece], where only municipal action is at issue."  Case closed.

There are good reasons to doubt Justice Thomas's view that the Establishment Clause should never have been incorporated.  But let's assume, just for the sake of argument, that he's right.  Would that really be the end of the story?  No.

Justice Thomas ignores two important, related, points.

Town of Greece

A local paper asked me to write an Op-Ed on the Town of Greece prayer case, but -- with grading and other end-of-semester business in the way -- I got it done too late for them to publish.  So here it is:

 

We live in fractious times. Politics, law, religion, have all turned into bitter battlegrounds. Combine the three and all hell, so to speak, breaks loose.

Reaction to the Supreme Court’s recent decision in Town of Greece v. Galloway is a good example. In that case, the Court again upheld the constitutionality of official prayers at the start of legislative sessions, explicitly including (as had not been clear before) meetings of town councils. And it rejected the argument that the specific pattern of prayer in Greece, New York, was too narrow and sectarian. Partisans on one side cheered the Court for upholding tradition and national reverence. And partisans on the other side accused it of tolerating Christian hegemony. (Full disclosure: I clerked for Justice William Brennan, Jr. in 1983, when he dissented from the original decision in Marsh v. Chambers allowing official invocations in state legislatures.)

My take on the problem is different. The Court was wrong to allow official legislative prayer in the first place. But having allowed the practice, it was right not to try to force such prayer into a narrow, inoffensive, channel. Let me explain.

A Blegging Blog about Blood in Bologna

This post concerns an old and much-cited legal chestnut that I have come to think might be more profound (and more tied to "law and religion") than first appears.  It is also a bleg -- a request for help from anyone out there with some expertise in medieval law or medieval Latin, or both. William Blackstone, in his discussion of statutory interpretation in his Commentaries (first published in 1766), refers to

the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," [and] was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

The point here, of course, is that words should not be read literally if that would give them "a very absurd signification." Blackstone's source, Samuel von Puffendorf, discusses this "case" in his "Law of Nature and Nations," first published in 1672, and Puffendorf in turn cites a 1516 digest of legal arguments by Nicholas Everhard (aka Everardi, Everts, and several other names).   Puffendorf, for example, adds that the defendant "was in no little peril because it was added in the statute that the words should be taken exactly and without any interpretation."  Everhard leaves out that tidbit, but does spin out the legal argument at greater length, and emphasizes that punishing the healer would be "absurd and inhuman," not merely "absurd." Now, my intuition tells me that there's more to this odd tale than meets the modern eye.

The Parsonage Exemption and Constitutional Glare

A few days ago, a federal district court judge in Wisconsin struck down the so-called "parsonage exemption," under which practicing clergy get to exclude many of their housing expenses from taxable income.  Judge Barbara Crabb held that the exemption, included in § 107 of the Internal Revenue Code, violated the Establishment Clause as, among other things, an unjustified special favor to organized religion.  Now, I'm generally a "strict separationist" on Establishment Clause questions.  But this decision is quite wrong.  And it misunderstands an important piece of our church-state dispensation.

Howard Jacobson: "Will We Ever Be Forgiven for the Holocaust?"

A provocative, bizarre-sounding, question. But read on.  Polemical yet insightful.

"The Son You Love"

Yesterday, during Shabbat services, Jews read Vayera (Genesis 18:1 - 22:24), the portion of the Torah (the first five books of the Hebrew Bible) whose narrative includes the destruction of Sodom and Gomorrah, Abraham's expulsion of Hagar and Ishamel, and then as its climax, the Akedah -- the binding of Isaac.

During yesterday's service at the Havurah in my synagogue, I gave a d'var Torah (homily) on Vayera.  Here's a lightly edited version:

*   *   *

The typical question we’re moved to ask about the Akedah is whether, in Abraham’s willingness to sacrifice his son Isaac at God’s command, he passed God’s test of faith, or spectacularly failed it. That is a big question, but it is too big for me this morning. It might also not be the right question. Because, actually, Abraham failed his test long before the Akedah, long before God called him to sacrifice Isaac on Mount Moriah.

Same-Sex Marriage Sans Slogans

Some readers of this blog might be interested in my upcoming article, "Nature, Equality, and Same-Sex Marriage."  The article proposes a different, I hope more nuanced and responsive, defense of same-sex marriage.  Put simply, what I'm trying to do is make sense of same-sex marriage without either unduly hollowing out the "traditional" conception of marriage or relying on the sort of question-begging sometimes found in slogans such as "freedom to marry" and "marriage equality."  I hope folks enjoy it.

Adapted from my first guest post on the Center for Law and Religion Forum:

Mark Movsesian posted briefly about the decision to re-inter the recently-discovered remains of King Richard III in Leicester's Anglican Cathedral rather than give him a Catholic burial.  The Catholic bishop of Nottingham  has approved the plan, and Mark's post was appropriately relaxed, even tongue-in-cheek, about the whole thing.  But some Catholic commentators are genuinely upset.  They argue that Richard was Catholic, not Anglican, and deserves a Catholic ceremony.  They insist that, for that matter, the Anglican Church didn't even exist when Richard died.

Fights over long-dead bodies, famous or not, are often both religiously fraught and emotional.  Consider the efforts of American Indian tribes, bolstered by the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990, to reclaim remains that have ended up in museum collections.  But they can also implicate deeper issues about religious identity and continuity -- questions that end up involving theology, history, and law.  For example, are prehistoric remains, such as those of Kenwick Man, genuinely the patrimony of modern native tribes?  The Court of Appeals for the Ninth Circuit famously said no.

Back to Richard III, though.  Many Anglicans would deny that Richard III was "Catholic" in the limited contemporary sense of the word that would exclude his membership in the "Church of England."  The simple reason is that Anglicans claim a direct line back from their Church to the Church to which Richard belonged.  As the COE's website puts it, "The roots of the Church of England go back to the time of the Roman Empire when Christianity entered the Roman province of Britain. Through the influences of St Alban, St Illtud, St Ninian, St Patrick and, later, St Augustine, St Aidan and St Cuthbert, the Church of England developed, acknowledging the authority of the Pope until the Reformation in the 16th century."  Thus, Henry VIII might have split the English Church from Rome, but he did not create it anew.  To be sure, Catholics have a different view. But neither position is self-evident by sheer definition.

Review of "Islam and the Secular State"

Some readers of this blog might be interested in my review, available here, of Islam and the Secular State: Negotiating the Future of Shari‛a by Abduallahi Ahmed An-Na‛im, which just posted on Ancient Traditions, New Conversations: The Blog of the Center for Jewish Law and Contemporary Civilization at Cardozo School of Law.

"vicious verbal assault"

There's a lot of interest in today's decision in Snyder v. Phelps, the Westboro Baptist Church case.  But I just want to say this:  The Court was right to reject, in its 8-1 decision, Justice Alito's effort to treat a "vicious verbal assault" leading to emotional distress as just like a physical assault.  Alito's argument, in effect, was that, even though Westboro's message was otherwise protected by the First Amendment, it did not have a constitutional right to convey that speech by way of an intentional infliction of emotional distress any more than it would have the right to convey its speech by, say, hitting bystanders over their heads with its picket signs.

But emotions have the odd and distinct character that they are both intensely subjective and in many ways socially constructed.  Westboro's speech is (objectively) vile, but any of us could reasonably react to it with either profound hurt and distress, or self-empowering righteous indignation, or bemused boredom.  And there's a profound feedback loop between what we feel, or think we feel, and how law and society respond to those feelings.

I've been thinking about this problem of emotional responses a lot, particularly in connection with my discomfort with Justice O'Connor's famous "endorsement test."  The constitutional experiment with separation of church and state should be understood not as a salve for hurt feelings but as expression of certain important, and to a large extent distinctly American, political and theological commitments.  We also need to appreciate that, to the extent that hurt feelings do enter the picture, they often arise out of the specifically American church-state dispensation, and not the other way around.  Many religiously serious English Jews, for example, don't feel "marginalized" by the established status of the Church of England; to the contrary, they see the established Church as an important institutional voice for all religions. If American Jews feel differently, it's not because they're more emotionally sensitive, but because they're the products of a different history and constitutional culture.

Back to the Snyder case, though:  The Court was also right to leave to another day the question of whether statutory buffer zones around funerals would be constitutional.  I think that, within reason, they are.  Funerals are generally private events that, for special reasons, often need to take place in public spaces.  To create a sort of temporary zone of quasi-private quasi-property around such events strikes me as permissible.  The issue here is not protection from emotional distress, but the right to conduct a set of important ritual acts (or their equivalent) without interference or trespass.

(Also posted on lawreligionethics.)

"Covenants of Faith and Fate"

A podcast of a recent talk I gave at the annual week-long Limmud Conference in England is available here.  I'm afraid I can't vouch for the intelligibility of the recording (not to mention the content).  Here's a brief description:

Jews who reject Jewish religion and its ‘covenant of faith’ can nevertheless be accepted as being bound to a ‘covenant of fate’ and a common Jewish identity. But what about the converse? This session will explore the fascinating stories of individuals and groups, from sixteenth-century Russians to contemporary Africans, who adopted forms of Jewish practice and belief without conversion or even contact with Jews. How does this recurring phenomenon challenge our assumptions about Jewish identity?

Limmud, incidentally, is a wonderful experience, with offshoots all over the world, including several in the United States.

Ki Tissa

This past week, Jews read the portion of the Torah (first five books of the Bible) called "Ki Tissa" (Exodus 30:11-34:35), which includes the incident of the Golden Calf.  Here's a D'Var Torah (sort of a sermon, literally "word of Torah") that I delivered at my synagogue this morning during Shabbat services.

            Everything seems to going great.  The people of Israel have been liberated from Egypt with signs and wonders, miracles and song.  They received the Ten Commandments and heard God’s own voice.  Moses goes up the mountain.  He receives the great stone tablets.

            Then he comes down the mountain and encounters horror – the sin of the golden calf.  Moses is outraged.  God is outraged.  We’re outraged.  Cecil B. DeMille is outraged.  It takes a whole lot of negotiation and rebuilding of trust to keep the project of the people of Israel from being permanently defunded.

Activity, Inactivity, and Libertarianism

My last post discussed the activity/inactivity distinction from the perspective of federalism.  But even from the sort of libertarian perspective that I don't personally share, I'm still baffled by why a mandate to enter into a commercial transaction should raise more hackles than other types of legal regulation.  If anything, I would think that the distinction would work the other way, at least as long as nobody is being forced actually to use the product being purchased.  I don't much like creamed spinach.  But I don't think I'd consider my liberties cut to the bone by a law that required me to buy creamed spinach, as long as it didn't force me to eat it.  More important, I would certainly far prefer such a law to one that forbid me to buy asparagus, a vegetable I do like.

There are limits to my argument here, of course, particularly when claims of conscience are involved.  It would be wrong, for example, to require vegetarians to buy meat, even if they weren't made to eat it.  And it would also be wrong to require the Amish to buy health insurance, which is why they and others like them are rightly exempted from the individual mandate.  But most libertarian critics of the new health law don't claim that they are conscientiously opposed to health insurance.  (Most, I am confident, either have health insurance or plan to buy it when they get older or sicker.)  They just object, in principle, to being forced to enter into any economic transaction.  And it is that abstract but vehement objection, especially in the face of the thousands of other laws that limit our ability to enter into other economic transactions, that I find odd.

Activity, Inactivity, and Constitutional Limits

In striking down the individual mandate in the new health reform Act (and then the rest of the Act too just for good measure), Judge Vinson parroted the common argument that if Congress "has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself 'commercial and economic in nature, and substantially affects interstate commerce' [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted."  As I've argued before, though, this is just plain wrong.  The Supreme Court's existing Commerce Clause doctrine, under which it has struck down laws that bore no genuine connection to economic matters or encroached on areas traditionally left to State regulation, applies to legal mandates as much as to legal prohibitions.  Some mandates (including the one in the health care Act) pass the test; others wouldn't. 

Of course, some folks think that existing limits on federal power are too lax (I don't), but that has nothing to do with the activity/inactivity distinction.  And if those critics wanted to tighten limits on federal power in ways that actually responded to some coherent and sensible ideas about federalism, the last thing they would do is just pull an activity/inactivity distinction out of thin air.  They might, for example, want to demand that the intrastate behavior that a law addresses actually have something to do with a national economic market whose effective regulation arguably requires a coordinated national response.  Some federal laws would fail such a test.  But an individual mandate to buy health insurance as part of a comprehensive rethinking of the national health care system would pass it easily.

(For bloggy critiques elsewhere of the Vinson opinion, see, for example, here, here, here, here, here, and here.)

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/02/J.-Vinson-on-ACA-1-31-11.pdf

Civility

I want to say something about civility in American politics.  First, though, what might seem like a detour.

A group of young people in Gaza recently posted a remarkable manifesto titled "Gaza Youth Break Out" ("GYBO").  (See also here for more recent developments.)  The English translation of the document begins:

Fuck Hamas. Fuck Israel. Fuck Fatah. Fuck UN. Fuck UNWRA. Fuck USA! We, the youth in Gaza, are so fed up with Israel, Hamas, the occupation, the violations of human rights and the indifference of the international community! We want to scream and break this wall of silence, injustice and indifference.... [W]e are like lice between two nails living a nightmare inside a nightmare, no room for hope, no space for freedom. 

What I find so compelling about this document has relatively little to do with whether I agree with some or all of it or "like" it, Facebook-style.  Rather, the manifesto stands out amidst the cacophony of the web for two deeply related reasons.

The Commerce Clause, Libertarianism, and the Good Life

I have to admit I just don't "get" the argument that the mandatory insurance provisions of the Patient Protection and Affordable Care Act are unconstitutional because the Commerce Clauses only empowers Congress to regulate "activity," not "inactivity." 

That holiday in December that falls a week before New Year's Day.

The annual battle over Christmas and the separation of Church and State is on.  In Philadelphia, the city's Managing Director ordered the word "Christmas" removed from sign at the entrance to the "German Christmas Village" at City Hall.  The Mayor then countermanded him, and directed that "Christmas" be put back.  See here.  (For one response, see here.)  What to say? 

For my own preliminary take on the perennial Christmas wars, in which I argue that the issues involved are serious and legitimately difficult, but also possibly insoluble, see here.

In any event, Happy Hannukah.

Also posted on lawreligionethics.net.

Secular winds

A couple of months ago, I read Cormac McCarthy's "The Road," a post-apocalyptic story that manages to celebrate the possibility of goodness and the hope of redemption even in the midst of unremitting destruction and human depravity. The religious subtext in the novel is implicit but clear. One particular passage jumped out at me, though,

Choice of law, natural law, and interreligious love

Some readers of this blog might be interested in an article I recently posted on the "Natural Law Challenge to Choice of Law."

Would a jurisdiction supremely confident that some or all of its own municipal law rests on natural law and universal legal truth ever have a good, purely principled, reason to look to ordinary choice of law principles and apply the substantive law of another place in a case involving foreign elements? This essay, a chapter in an upcoming volume on “The Role of Ethics in International Law,” suggests several such reasons, some of them grounded in the natural law tradition itself and in sustained analysis of the relationship between natural law (if such a thing exists) and positive law. The essay also suggests at least a rough analogy between the jurisprudential challenges of choice of law and the theological challenges of interreligious encounter. It ends with a short effort apply the general argument to the specific question of the inter-jurisdictional recognition of same-sex marriages.

Kumbaya

Take a look at Samuel G. Freedman's article on a song whose history illustrates the often-complicated relation of religion, culture, race, and politics.

Left

I'm grateful to the ReligiousLeftLaw gang, particularly Steve Shiffrin, for inviting me to join. 

When Steve e-mailed me with the invitation, one of the first questions I asked myself was whether ReligiousLeftLaw was mainly aimed at politically leftoid folks with a religious bent or religiously left folks with a political bent.  It turns out that Steve sort of addressed the issue in his introductory post on the blog.  In any event, I quickly decided that my question was itself sort of silly and anal. 

More interesting, though, is this related question:  Let's define the religious left, very roughly and tentatively, as tending toward some sort of religious universalism, comfort with freedom of inquiry and with self-consciously non-literal or non-absolute readings of sacred texts, aversion to very rigid doctrinal formulations, and a positive engagement with both secular culture and other religious traditions.  Let's define the political left, again very roughly and tentatively, as tending toward a commitment to individual and collective rights (or at least many types of individual and collective rights) along with a strong dose of social and economic egalitarianism and real skepticism about the power of the unfettered market to meet basic human needs.  What is the relation between the two?  And what, for that matter, is the relation between religious conservatism and political conservatism?