The Faculty Lounge

CFP: Arab Law Quarterly Symposium Issue on Islamic Finance Industry

Islamic finance has emerged in the post-colonial period as part of the ethos for comprehensive reformation of the Muslim world. While the aspiration and need for broader transformation remain, the field of Islamic finance so far has been able to capture the interest of a sizable segment of the Muslim world and beyond.

The Arab Law Quarterly, the leading English language journal on law and legal studies of the Arab world, will devote its upcoming Symposium Issue to the subject of Islamic finance and the contemporary challenges it faces.  This Symposium Issue solicits conceptual, theoretical, and empirical papers to address the issues related to the challenges and new frontiers facing the Islamic finance industry. Preference will be given to papers with an explicit focus on the Arab/MENA region.  Papers need not be exclusively legal—the journal has long been interdisciplinary in its focus, and welcomes contributions from sociological, political science, economics, and anthropological perspectives as well. 

Further information can be found at the link here.

 

 

The Ghost of Father Coughlin

The mass murder of 11 worshippers at the Tree of Life Synagogue ten days ago in Pittsburgh constituted the deadliest act of anti-Semitism in American history. The atrocity reflects a chilling rise in anti-Semitism, including a 57% increase in anti-Semitic incidents in the United States in 2017 alone. Last year also witnessed the hideous spectacle of white supremacists chanting “Jews will not replace us” during a Nazi-inspired candlelight march at the University of Virginia. 

There is no doubt the internet has facilitated a resurgence in anti-Semitism in the United States and Europe. Just a few days before the Tree of Life attack, a study by the Anti-Defamation League documented how the internet amplifies anti-Semitic propaganda and harassment. As Jonathan Greenblatt, the national director of the ADL, pointed out last week in a New York Times op-ed:

“[F]ar-right extremists and the so-called alt-right have stepped up their efforts on social media to attack and intimidate Jews, and especially Jewish journalists, in the run up to the midterm elections. These radicals engaged in ‘Twitter bombing’ of Jews, barraging our community with an estimated five million highly politicized and anti-Semitic tweets per day. Social media creates its own realities for individuals, where people feed off the anonymity . . . . Anti-Semitism is being normalized in public life.”

The vile hatred spewed on the internet represents a grimly ironic development for a technology once expected to elevate the quality of public discourse.

But the internet’s dissemination of vicious bigotry is not the first time that a new communications technology has enabled the spread of anti-Semitism and other forms of hate. We have been down this road before, as the cautionary story of Father Charles Coughlin demonstrates.

CFP: AALS Section on Law & Religion Award for Excellence in Scholarship

The AALS Section on Law & Religion is once again soliciting papers for consideration for its annual Award for Excellence in Scholarship, to be given at the AALS Annual Meeting next January. All fellows at AALS Member Schools, as well as faculty members with ten years or less experience as faculty members, are eligible. The award is given annually to a paper either published or to be published by July 15 of this year, that has made an outstanding scholarly contribution to the field of law and religion.

Any faculty member at an AALS member school can nominate up to one paper for the award. Nominations should be sent directly to Professor Haider Ala Hamoudi ([email protected]) as Chair of the Prize Committee. Nominations must be received by August 15.

Haider Ala Hamoudi, Chair, Prize Committee
Professor Of Law
Associate Dean For Academic Affairs
University Of Pittsburgh School Of Law
(412) 624-1055
[email protected]

Robin Fretwell Wilson, Chair, Law & Religion Section
Roger and Stephany Joslin Professor of Law
University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, Illinois 61820
217.244.1227 (office)
[email protected]

Call For Residency Proposals: Female Interpreters Of Religious Law: Women's Leadership As Clergy, Educators, Advisors and Judges

This just in:

Scholars working in any religious tradition whose work explores developments in women's religious leadership are invited to apply for this semester long residency. This program will be directed by Lisa Fishbayn Joffe, director of the Hadassah-Brandeis Institute (HBI)  Project on Gender, Culture, Religion and Law at Brandeis University.

Participants will meet twice monthly for luncheon seminars in which they discuss their ongoing work. Participants will: (1) present one public lecture, which may consist of a presentation to an appropriate Brandeis class; (2) present one "teach in" session for HBI staff; (3) present a lecture or participate in a round-table at a 1-day conference that will be organized during the last week of the SIR Program.

The accepted program recipient(s) will receive a monthly stipend to support her/his research. In addition, recipients will receive (shared) office space at the Women’s Studies Research Center at Brandeis University and access to all available Brandeis University resources.

SIRs may also contribute to the HBI’s Donna Sudarsky Memorial Working Paper Series, or write for the HBI blog, Fresh Ideas from HBI.

Intersectionality and the Case of Mizrahi Jews

I am delighted to be joining such a distinguished crew of bloggers here at The Faculty Lounge. As an academic, I'm still in my baby shoes, but as a blogger I can claim some seniority -- I started The Debate Link almost 12 years ago in 2004. I've been blogging so long I remember when people were worried it would destroy a prospective academic's career! Whether due to foresight or foolhardiness I disregarded those warnings, and I'm glad I did. I've found the legal blogosphere to be an immensely fertile source of academic engagement, and a non-insignificant chunk of my published scholarship has began life, in one form or another, as a blog post musing. So along with everything else, I really consider it a genuine professional accomplishment to be invited to guest-blog here.

This past week, I got to tick off another "professional accomplishment" box when I (along with my friend Analucia Lopezrevoredo) delivered my first invited lecture at San Diego State University. It was titled "An Intersectional Failure: Situating Mizrahi and Sephardic Jews in Contemporary Jewish Discourse" (building off of an article we published in Tablet Magazine a few months ago), and, as the name implies, brought an intersectional lens to bear on the generally-marginalzied position of Sephardic and Mizrahi (roughly, Iberian and Middle Eastern) Jews in contemporary discourse by and about Jews.

Often times when we think about Jews and diversity, we think about it in terms of external relations -- how can Jews better relate to "other" groups (African-Americans, Latinos, Arabs, Muslims, and so on). But this, of course, elides the tremendous diversity that exists within our community. In the very short time I spent at SDSU, I met:

Call for Nominations: Harold Berman Prize for Excellence in Law & Religion Scholarship

Starting this year, the AALS Section on Law & Religion will award the "Harold Berman Prize" to recognize scholarly excellence by an
untenured professor at an AALS Member School.  The Prize will be given to the author of an article, published between July 15, 2015 and July 15, 2016, which has made an outstanding scholarly contribution to the field of law and religion.

The recipient must be a tenure-track faculty member at an AALS Member School and must have served no more than 6 years as a faculty member as of the date of the awarding of the Prize. The Prize will be awarded at the 2017 AALS Annual Meeting, scheduled for January 4-7, 2017.

Nominations should be sent by email to Professor Michael Helfand ([email protected]) and must be received by 5pm PST onAugust 15th, 2016. Nominations should include the full name, title and contact information for the nominated scholar, in addition to a PDF version of the published version of the article to be considered for the Prize. There is a limit of three nominations per nominator. Self-nominations are welcomed.

Questions about the Prize should be addressed to Professor Richard Albert (richard.a[email protected]), Chair of the Section on Law & Religion.

Prize Committee

Zak Calo (Hamad Bin Khalifa / Valparaiso)
Rick Garnett (Notre Dame)
Michael Helfand (Pepperdine)
Lisa Roy Shaw (Mississippi)

Planned Parenthood Defunding as Unconstitutional Bill of Attainder?

David Cohen (Drexel) had an interesting op-ed in the Philadelphia Inquirer on Sunday arguing that the current legislative efforts (at both the federal and state levels) would, if successful, result in unconstitutional bills of attainder. 

From David's piece, which is available here ...

"A bill of attainder is a law that inflicts punishment upon a particular individual without a judicial trial.     In other words, a bill of attainder is, as the Supreme Court has termed it, a 'trial by legislature' rather     than by court.

"The Constitution prohibits both Congress and state legislatures from enacting bills of attainder for two     important reasons that go to the heart of our democracy. One, laws that target individuals threaten civil     liberties because legislatures do not afford individuals the protections of a trial. Two, bills of attainder     conflict with basic notions of separation of powers. . . .

"Though no one is talking about it, this most recent dust-up over federal funding for Planned Parenthood   is very clearly an example of an unconstitutional bill of attainder: Congress is singling out Planned     Parenthood and punishing the organization for allegedly improper and illegal actions.

"More specifically, a bill of attainder has to meet three legal requirements: The law has to 'determine guilt and inflict punishment,' it must act 'upon an identifiable individual,' and it must do so 'without provision of the protections of a judicial trial.' All these requirements are met here."

While I am not a Constitutional Law expert, David makes a pretty compelling argument.  Thoughts?

Interpreting Fiorina's Comments on Vaccination Law

I've started writing for Forbes as a regular contributor. My first piece, Carly Fiorina Says Her Views On Vaccines Are Unremarkable; For Better Or Worse, She's Right, analyzes GOP presidential candidate Carly Fiorina's recent ad hoc remarks on the relative rights of parents and schools with respect to vaccinations and to some of the hyperbolic reactions to those remarks. Fiorina's remarks are ambiguous, in ways that I discuss. But, as the title of the article suggests, and for better or worse, I think that the best interpretation of them places her stance squarely in the mainstream of current U.S. vaccination law. I end with a call for minimally charitable interpretations of others' views, especially on contentious issues like vaccination.

The Long Search

    About six months ago, Al Brophy posted an interesting short piece on African Americans’ difficulties in finding accommodations during the Jim Crow era. In the article, he included a link to the Green Book, a publication from the era that listed where success could be had.

    Al’s piece and the Green Book itself made me wonder about the similar issues that supposedly occurred for Jews as they traveled around the U.S. in the early 1900s. During my upbringing in the 1950s and 60s, I was often told stories, particularly by my grandparents, of how difficult travel was as so many facilities had signs that stated that they were for “Christians only” or other similar verbiage. Similarly, the Green Book stated that “[the] Jewish press has long published information about places that are restricted ...” Well, after an unexpected months-long search, maybe not so much.

    Without a doubt, there are some examples of travel establishments refusing to serve someone because they were Jewish. The most widely known of these events would be the Hilton-Seligman controversy of the 1870s surrounding the Grand Union Hotel in Saratoga, NY. Mr. Seligman, a well-established member of the New York City business community and a Jew, was denied a room in the hotel specifically because of his religion. To assert that this was commonplace, however, cannot be sustained, at least based on the records I have been able to find.

    First, I examined the reference in the Green Book to comparable publications from the Jewish press. I found numerous travel books published during the early to mid-1900s with a Jewish audience in mind. All of these, however, were not oriented towards where Jews could find facilities that would be willing to serve them despite their religion; rather, they were oriented towards where synagogues and Kosher restaurants could be found. Unlike the Green Book, therefore, these travel guides were not to help Jews avoid discrimination, they were designed to help them find religiously compliant facilities.

    Second, although there are examples of antisemitism being practiced by travel facilities from the 1800 and 1900s (and even from the 2000s), these examples appear to be just that—individual decisions by a particular facility to discriminate based on religion. No state adopted laws designed to create a Jim Crow-like system of discrimination against Jews as was done against African Americans just as there were no “Jewish divisions” in the miliary of the 1940s as was required of African-Americans. My relatives have served in the Army, Navy and Marines without any limitations because of their religion.

    Since I found nothing, you may be wondering about why I have bothered to post anything on the Lounge. Again, there are two reasons. As I did the research, numerous people and organizations unselfishly gave of their time to assist me. This openness stands in stark contrast to a country where discrimination is acceptable and should be noted. More importantly, however, was the broader reminder that my research gave me. All too often we tend to compare our histories of discrimination. Comparison here means nothing—all group-based discrimination achieves nothing.

    This was recently reinforced in several episodes of Henry Louis Gates’s PBS show, Finding Your Roots. It became explicit as Tony Kushner’s roots were explored. The trail of his family ended with the information from the time his family immigrated to the United States as all of the records before that were destroyed by the Nazis. Only one Jewish guest’s roots could be extended back (Carol King) as there were some Russian records that had survived. Similarly, for all of the African Americans who have been on the show, the family roots ended with slavery. Here, however, DNA has allowed some jump across the ocean as it gives some indication of what areas of Africa are represented within each person’s family. Of course, knowing your country of origin is not the same as knowing your family. Kushner and Gates discussed this in the episode. Kushner said:

    Genocide is a specific thing. Slavery is a specific thing. [Slavery is] a kind of soul murder that is unlike other forms of oppression. The holocaust is a near successful attempt to obliterate ... [i]n less than a decade an entire civilization. This is beyond human comprehension. And you don’t repress the fact that it happened, but you allow a ring of unknowing to surround it because you can’t… you know what was it like on a slave ship… what was it like in Auschwitz. Our great good fortune in a way is to not actually know directly.

The full transcript can be found here.

    I wish I knew more about my family before we came to the U.S. beyond knowing that my Father’s family came from Roumania and my Mother’s family came from Ukraine and Austria. Similarly, I am sure that many African-Americans would love to know their familial background and, for many, their country of origin within Africa. The reality is that none of us will ever know this. So the end of the long search left me knowing, more surely than ever, that there is a great loss when you are cut off from your personal history. At times, to recover from this, we generate a myth that there was a pattern of discrimination. Whether these myths heal or whether they just hide the wounds does not, in the long-term, matter.

Call for Abstracts: Harvard Law Petrie-Flom Center Conference on Law, Religion, and American Health Care

This just in:

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is pleased to announce plans for our 2015 annual conference, this year entitled: “Law, Religion, and American Health Care,” to be held May 8-9, 2015.

Conference Description

Religion and medicine have historically gone hand in hand, but increasingly have come into conflict in the U.S. as health care has become both more secular and more heavily regulated. Law has a dual role here, simultaneously generating conflict between religion and health care, for example through new coverage mandates or legally permissible medical interventions that violate religious norms, while also acting as a tool for religious accommodation and protection of conscience.

This conference, and anticipated edited volume, will aim to: (1) identify the various ways in which law intersects with religion and health care in the United States; (2) understand the role of law in creating or mediating conflict between religion and health care; and (3) explore potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

The call for abstracts is below the fold.

A Post from a Second Class Citizen

    I want to follow up on Eric Muller’s short complaint yesterday about the Town of Greece case. I, too, feel that, for the first time in my life as an U.S. citizen, the doors of government are closing on me because of my religion.

    To be fair, the case is not affecting me in a vacuum. The recent attacks and murders in Kansas City where people were killed allegedly because the assailant perceived them to be Jewish has an impact. The recent flyers notifying Jews in Eastern Ukraine that they were required to register with their town merely because they were Jews has an impact. The fact that a family member’s synagogue needs an armed police guard for Saturday services has an impact. The fact that, in my state, being a member of the Anti-Defamation League serves to disqualify you from service on the bench has an impact. But so too does a case that tells me that history is the best judge of the boundaries of the Establishment Clause. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Town of Greece, New York v. Galloway, No. 12–696, slip op. at 8 (Sup. Ct. 2014). Let’s look at this history: the Crusades; Inquisition; hundreds of years of European wars over religion; pogroms throughout Russia and Eastern Europe both before and after World War II; religiously-based conflicts in India, Yugoslavia, Sudan, Israel/Palestine, Armenia, and numerous other countries around the world too numerous to list; and, of course, the Holocaust.

    For at least the last 1,000 years, we have been killing each other because of religion. The great hope for the U.S. constitutional democracy was that, by removing government from the religion game, we could put this history behind us. Unfortunately, the Supreme Court has started a process of disenfranchising U.S. citizens based on religion. To attend a government meeting in Greece, New York — and soon in many other towns throughout the U.S. — one must first now accept a call to prayer that will serve to define the majority’s view of proper religious behavior. With no Jewish, Muslim, Buddhist, or Hindu houses of worship in Greece, New York — and in many other towns throughout the U.S. — the prayers will be Christian.

    The Court’s majority seem to think that sectarian prayer will improve the process of government. “Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function.” Id. at 14. How does one religion’s prayer trigger “shared ideals?” Why would a minority member feel that a “common end” will be easier to achieve now that someone else’s religion (or for the atheist, religion itself) has been proclaimed as dominant? No, the opposite occurs. The minority is being instructed — “You are only here because we tolerate you, but don’t, not even for a minute, believe that you are a member of the community.”

Sharia Law in the North Carolina Courts

Last summer the North Carolina legislature passed a law banning the use of Sharia law in North Carolina courts.  The statute is an odd one .  It does not mention Sharia law, only foreign law.  But the law's supporters had Sharia law in mind.  The statute -- maybe in some kind of odd resonance with Shelley v. Kraemer -- prohibits the enforcement of contracts that infringe fundamental constitutional rights.  This is a way of allowing courts to review private agreements regarding divorce and custody (I'm guessing mostly pre-nuptual agreements) if they refer to Sharia law [or other foreign law] as a way of resolving a dispute.  It has been codified in the North Carolina General Statutes in Chapter 1.  Its provisions include:

§ 1-87.13. Public policy

In recognition that the United States Constitution and the Constitution of North Carolina constitute the supreme law of this State, the General Assembly hereby declares it to be the public policy of this State to protect its citizens from the application of foreign law that would result in the violation of a fundamental constitutional right of a natural person. The public policies expressed in this section shall apply only to actual or foreseeable violations of a fundamental constitutional right resulting from the application of the foreign law. (2013-416, s. 1.) 

§ 1-87.14. Nonapplication of foreign law that would violate fundamental constitutional rights.

A court, administrative agency, arbitrator, mediator, or other entity or person acting under
the authority of State law shall not apply a foreign law in any legal proceeding involving, or recognize a foreign judgment involving, a claim for absolute divorce, divorce from bed and board, child custody, child support, alimony, or equitable distribution if doing so would iolate a fundamental constitutional right of one or more natural persons who are parties to the proceeding.  (2013-416, s. 1.)

§ 1-87.15. Interpretation of contracts providing for choice of foreign law.

(a) In the interpretation or enforcement by a court, administrative agency, arbitrator, mediator, or other entity or person acting under the authority of State law of any contract or other agreement that provides for the choice of a foreign law togovern its interpretation or the resolution of any claim or dispute, the court or administrative agency shall preserve the fundamental constitutional rights of natural persons who are parties to the contract or other agreement.

(b) If enforcement of any provision in a contract or other agreement for the choice of  foreign law would result in a violation of a fundamental constitutional right of one or more of the natural persons who are parties to the contract or other agreement,the agreement or contract shall be modified or amended to the extent necessary to preserve the fundamental constitutional rights of the natural persons. (2013-416, s. 1.)

§ 1-87.16. Interpretation of contracts providing for choice of foreign venue or forum. 

If the enforcement of any provision in a contract or other agreement providing for a choice of a foreign venue or forum would result in a violation of a fundamentalconstitutional right of one or more of the natural persons who are parties to the contract or other agreement, that provision shall be modified or amended to the extent necessary to preserve the fundamental constitutional rights of the natural persons. (2013-416, s. 1.)

Because I am always looking to incorporate North Carolina legislation and cases into my courses, I think that I probably ought to pay some attention to this statute.  I mean, if we're banning the use of Sharia law here in North Carolina, surely it's being used with some frequency, no?  And I thought that I'd crowd-source a couple of issues related to this.  First, does anyone have any recent North Carolina cases involving Sharia law that I should be teaching?  Or North Carolina separation and custody agreements that I could use to illustrate how Sharia law is appearing in North Carolina?  Does this come up in some way in wills or trusts?  I'm not sure -- I don't know as the statute would protect beneficiaries under a will or trust that in some way uses Sharia law to determine eligibility, though maybe a beneficiary might try something along those lines....

Also, I'm planning on a field trip up to Hillsborough to look for instances where lawyers in the Orange County Superior Court invoked Sharia law.  I'll let you know how that goes.  But perhaps Orange County isn't the best place to look for this?  Do our North Carolina readers have any suggestions on the counties where Sharia law has been invoked most frequently?  Perhaps I should think about Alamance, Granveille, or Halifax Counties? Or maybe, because of this statue, I need to look in Virgina counties.  Would Lunenburg County be a reasonable place to look for this?  Suggestions most appreciated because as I say I want my property -- and especially trusts and estates -- classes to be up-to-date.

The illustration is of the antebellum Orange County Courthouse in Hillsborough.

Update: As Greg and Brian both pointed out, this was an April Fool's day post, designed to poke some fun at the North Carolina legislature.  But there is serious scholarship discussing similar legislation in other states.  John Parry of Lewis and Clark wrote "International Law in State Courts: Sovereignty, Resistance, Contagion, and Inevitability" about Oklahoma's anti-Sharia law statute.  Lumen Mulligan of the University of Kansas published an analysis of a similar Kansas statute in 5 Kansas Code of Civil Procedure Annotated (2013 supp.).

Hobby Lobby At The Glom

Our friends over at The Conglomerate are hosting an online symposium for the next four days on Sebelius v. Hobby Lobby Stores, Inc., (the United States Supreme Court will hear oral arguments tomorrow).  Though nearly all of the 84 amicus briefs submitted in the case explore the religious freedom issues, rather than the corporate law issues, Jayne Barnard, who will be in the courtroom tomorrow, asks: Will corporate law be the tail that wags this dog?  Posts by Steve Bainbridge and Nate Oman are already up, and I’m sure that more will follow. 

Kafka and the study of the law

Via Adam Kotsko, translater of Giorgio Agamben's more recent work, and author of a new piece in the LA Review of Books on reading that work-

The law firm Harris and Greenwell has a library of law and humanities texts on their web site that is definitely worth checking out, including this gem from Kafka:

The New Attorney

 

 

Hobby Lobby and the Corporate "Soul"

That the old saying that a corporation has "no body to kick, no soul to damn" may have to be revised. While it still has no body to kick (or, for that matter, to send to jail -  BP pleads guilty to manslaughter), recent lawsuits filed on behalf of corporations challenge the ACA on the grounds that its mandatory coverage for contraception and some other post-intercourse medications intended to prevent pregnancy, violates the plaintiffs' rights to free exercise of their religion under the First Amendment and is in conflict with RFRA (The Religious Freedom Restoration Act, 42 U.S.C. sec. 2000bb et seq.)  So perhaps a corporation has a "soul" after all, or at least a religion it wants to exercise. Hobby Lobby is only one of several of these cases. Hobby Lobby complaint.

To quote the Hobby Lobby complaint, while neither Hobby Lobby nor Mardel (another plaintiff in the case) are religious orders, churches, or other exempt organizations but instead are "privately held, "for-profit" corporations organized under Oklahoma law, the owners aver they (the owners) are "Christian and, from the beginning, ...sought to run Hobby Lobby in harmnoy with God's laws and in a manner which brings glory to God." Complaint at para 18- 24.  (As a pleading aside, imagine how, if you are the defendant, you respond to this allegation: "admit"? "deny" "insufficient information"? And if you are the plaintiff, how do you prove that it is true? ). The ACA, the suit alleges, makes this impossible in that the company must pay for insurance coverage which includes medications and devices which, in their view, their religion forbids.

The Hobby Lobby case is actually one of many cases brought on behalf of many companies and individuals seeking to undermine the Health Care Act on religious grounds. The ones brought on behalf of corporations open up a new front - the free exercise clause - on what I have described in my book Brandishing the First Amendment, as an agressive use of the First Amendment to repel legislation aimed at regulating business. However, with this new free exercise claim, proponents may have  have exceeded the bounds of what the public thinks is reasonable when it comes to anthropomorphizing the corporate "person."

The issue is complicated further because these various lawsuits often have slightly different facts, some of which may make a difference. Hobby Lobby is a closely held private company and so the notion that there is some sort of greater identity between the owners and the company has, at least at first glance, some appeal. But then consider Martha Stewart: if suits like this are successful, how should publicly traded companies be treated? And what of the views of the shareholders? Should the corporation be able to claim it is exercising their religious beliefs as well? 

Another complication is that not all these suits raise precisely the same objection. Rejection of coverage for contraception is probably what gets the most press and which would be the most widespread public pushback since contraception generally is very popular. However, despite some claims in the press to the contrary, the Hobby Lobby suit does not raise an objection to what the plaintiffs call "non-abortion-causing contraception drugs and devices" (complaint at para. 57), but rather only to those drugs or devices which constitute (in their view, and this is contested by some in the medical community) "abortifacients." 

Other law suits, such as the one filed by Annex Medical, Inc. in the 8th Circuit, do  object to providing contraception coverage. And the ferocity of the objection is fairly intense because in the Annex case, Annex Medical has fewer than 50 employees, so it is  exempt from the mandate in any event. Yet, according to the plaintiff in that case, the owner's religion requires him to pay for medical coverage for his employees, and because there are no options which do not include coverage for contraception the exemption is not sufficient.  Annex Medical - Order issuing preliminary injunction. Positions like these suggest that the Administration's recent announcement that it would provide a further exemption Exemption will not satisfy many because it will not extend to fully for-profit businesses like Hobby Lobby.

The circuits are split on these suits, (the 10th Circuit denied Hobby Lobby's request for an injunction, a denial which was upheld by Justice Sotomayor acting in her capacity as the Circuit Justice for the 10th Circuit).  Hobby Lobby - Supreme Court Order Although their different facts may suffice to reconcile apparently contradictory results, these various claims seem destined to make their way to the Supreme Court.

Whatever one thinks about the sincerity of the objections raised in these law suits, one thing that is notable is that they seek to elevate the free exercise claim of the corporate entity over constitutional and statutory rights of employees, many, if not most of whom may not share their employers' interpretation of what their faith requires of them.

Indeed, it is clear that not even all those who identify themselves as a part of the same faith community as Hobby Lobby's founders agree that their faith precludes accepting the insurance mandate. For example,  one commenter quoted in the Christian Post noted: "I'm still not seeing a cause for alarm here. The majority of the U.S. thinks women's healthcare needs should be included in insurance plans […] I'm a Christian, and if I start a business then I expect I'll have to comply with all the government regulations that come with incorporation. I wouldn't expect special treatment for my personal religious beliefs. "  (emphasis added)  Christians Question Hobby Lobby's Defense, Biblical Stance Against Obamacare

"Others question why Hobby Lobby has chosen to address the contraceptive mandate but not other morally questionable issues within government, such as the funding of wars in Iraq and Afghanistan" Id. And some have raised the issue that "many of Hobby Lobby's products are made in China," a country with laws which violate many of the precepts the Hobby Lobby founders say they attempt to observe in the running of their business. Id.

There are several strands that are interesting here and they all probably deserve separate posts. One is the resistance to women's full exercise of constitutionally and statutory rights. Another is the framing of this issue as one that purports to put those of faith at odds with the government, (although that obscures that the First Amendment not only promises free exercise but also freedom from religion). But for me the most interesting aspect  is this attempt to raise the free exercise claim on behalf of the corporate entity.

If we take the Hobby Lobby pleading at face value then it would seem that what its owners are attempting to do is to create some sort of hybrid for-profit religious corporation that doesn't exist under current law, at least not as they would like it to exist. And the Greens (Hobby Lobby's founders) would seem to be trying to engage in what might be called "selective piercing" or the corporate veil:  that is, they wish to pierce it for purposes of their religious beliefs, beliefs which they would like to exercise by denying even those employees of other faiths a benefit the law would otherwise provide, but presumably they would like the corporate shield to remain intact for other purposes, like protection against individual liability.

I wonder if those pursuing these lawsuits have thought fully through the possibilities that might arise if they are successful with these suits. If they succeed, why should such companies not also receive special tax treatment? (I think there is a movement afoot with the social benefit corporation model to do something like a hybrid). And if they do not receive special tax treatment, perhaps, no organization should if all organizations have potentially equal capacity to exist as moral, not just business entities. These may be questions for tax scholars and theologians, but it looks like a bumpy road ahead.

The Muslim Brotherhood, Islamist Politics, and the Quest for Democracy

The comments that immediately follow below are from sundry experts and pundits on the Muslim Brotherhood (Jam`iyyat al-Ikhwan al-Muslimun) collected during what is often termed the Arab Spring in Egypt beginning in January of last year. I’d like them to serve, together with with the subsequent material by yours truly on “Islam and democracy,” as a propaedeutic of sorts—or simply a backdrop—to a forthcoming post on Hamas. Of course Hamas emerged out of the Ikhwan, in particular, the Muslim Brotherhood in Egypt and later from the Palestinian Muslim Brotherhood, but is today a wholly independent social movement and political organization. I assume throughout, with Nader Hashemi in Islam, Secularism, and Liberal Democracy: Toward a Democratic Theory for Muslim Societies (2009), that

“Normatively, secularism should not be imposed by the state on society [as in, say, Kemalist ideology or in some measure with French secularism (laïcité)] but should emerge bottom-up, from within civil society, based on democratic negotiation and bargaining over the proper role of religion in politics. In other words, in developing societies where religion is a key marker of identity, in order for religious groups to reconcile themselves with secularism, a religious-based theory of secularism is required.”

We might better appreciate this model of secularism if we recall that, historically, as Hashemi also points out, such “[d]emocractic negotiation and bargaining…was an inherent part of the transition to, and consolidation of, liberal democracy.”

(Please note: some of this material appeared previously in a slightly different version at the Ratio Juris blog, and if my stint here at the Lounge finishes before I get to the post on Hamas, it will eventually show up at Ratio Juris. I then hope to have a post or two on the role of nonviolence in the Palestinian struggle for collective self-detemination and full recognition of their rights under international law.)

The Muslim Brotherhood in Egypt:

“Yet it has been the very iron fist of the Mubarak regime that has helped make the Muslim Brotherhood the dominant opposition party in Egypt today. Like it or not, at this point in history Islamist parties do well all over the Muslim world; they have become the default opposition. Get used to it. They vary tremendously across a wide spectrum, from moderates to radicals, and include a small sliver of violent killers. These movements are constantly evolving. We must learn to work with the more moderate ones; that includes the Muslim Brotherhood in Egypt. They are not prone to love America, especially in view of our past policies, but the Brotherhood has eschewed violence for half a century and moves cautiously. If they occupy a major place in any new Egyptian government, they could well do with our help. And they will have to meet the political, economic and social demands of the people once in power: Anti-Americanism doesn’t feed bellies or reform the social order.”—Graham E. Fuller

“A final note to some American, and maybe Israeli, politicians: The Egyptian rallies are not about you. There has been no burning of American, Israeli or effigies of US Presidents because the Egyptians in the streets are not interested in politics per se. They do not fear that the Muslim Brotherhood will create an Islamic republic either. The Egyptians want change. Washington and other world capitals want ‘measured change’ that can fit their interests, something that Egyptians are not thinking of right now.”—Hussain Abdul Hussain

“Longtime scholars of the Brotherhood have cast doubts on exaggerated claims that the movement will be swept into power in a post-Mubarak/post-authoritarian Egypt. In fact, many doubt that the movement has the power to take over the entire country even if it wanted to. The Brotherhood, though the oldest and arguably best organized opposition group in the country, currently suffers from a number of ills. First, it is beset with a generation gap between the older generation of leaders, such as the current general guide Muhammad Badi‘a, and a younger generation that has sought to change the movement’s policies on a host of issues including the role of women in leadership positions and Coptic Christians. The Brotherhood is in fact no longer the dominant force that it was in the past. As a movement it has lost a lot of credibility in recent years after allowing itself to be co-opted by the Mubarak government says Khalid Medani, a professor of political science and Islamic studies at McGill University who has conducted extensive field work in Egypt including interviews with the movement’s members representing various veins of thought within it. Despite remaining the country’s largest formally organized opposition group the Brotherhood is failing to attract many new members, he says.

Although it eventually decided to participate in the January 25 demonstrations in Egypt the Brotherhood only announced its decision two days before. Its endorsement was also far from enthusiastic. Following the unprecedented size and staying power of the mass popular demonstrations against the Mubarak’s authoritarian government, the Brotherhood took a much more proactive approach in supporting the demonstrators. To date it has released eight official statements, including three signed by Badi‘a. In them the movement has been careful to not claim leadership of the demonstrations and instead says that it is simply one party among many that make up the opposition. Observers on the ground have noted that the Brotherhood is not the most visible or powerful voice represented among the hundreds of thousands to millions of demonstrators who have defied government curfews and violence to continue calling for their civil and human rights.

The Brotherhood has joined other opposition groups and demonstrators in calling for the resignation of Mubarak, the abolition of the ‘emergency law’ that has been in place since 1981 when Mubarak came to power, the holding of new elections that are actually free and fair, the release of all political prisoners, substantial amendment of the constitution, and the prosecution of government officials who have ordered the use of violence against the demonstrators. The movement has also been careful to explain its decision to enter into cautious talks with the government, which is increasingly under the public direction of Vice President Suleiman. Thus far, the Brotherhood remains unconvinced by the government’s claims that it is trying to address the popular will of the Egyptian people.

Although it is far from being a force for social or political liberalism, certainly of the kind that is desired by progressives in the U.S. and Europe, the Brotherhood is also not the all-powerful Islamist bogeyman and twin sister of al-Qaeda that it is often portrayed as. Facing its own internal divisions and problems of legitimacy among the Egyptian public, the Brotherhood is unlikely to be able to ‘seize control’ of the country even if it wanted to. Its internal problems are recognized by no one more clearly than by the Brotherhood itself, which has been careful not to further alienate the Egyptian people who have collectively led the popular uprising against authoritarianism that continues to defy an aging autocrat’s decrees even in the face of extreme state violence.”—Christopher Anzalone

Finally, An End—for Now—to Dickey-Wicker Sticky Wickets: On Stem Cell Research and Chevron Deference

Almost two years ago to the day, Chief Judge Royce Lamberth of the D.C. District Court shocked the human embryonic stem cell (hESC) research community by preliminarily enjoining NIH funding of that research, on the grounds that plaintiffs were likely to succeed on the merits of their argument that hESC research violates the so-called Dickey-Wicker Amendment (on which more below). Today, the D.C. Circuit affirmed Chief Judge Lamberth’s (reluctant) grant of summary judgment for the government, a holding that he had been essentially forced into by an earlier panel of the D.C. Circuit. (My co-guest blogger covers the other big decision coming out of the D.C. Circuit today, below.) Since it is extremely unlikely that the D.C. Circuit will review the decision en banc or that the U.S. Supreme Court will accept cert., today’s decision effectively ends litigation that caused utter chaos to erupt in labs all over the country in the wake of the preliminary injunction, and continued to cause significant uncertainty even after the D.C. Circuit quickly stayed that preliminary injunction. Congress could, of course, act to clarify the ambiguity in Dickey-Wicker. But this seems highly unlikely given the current partisan split between the House and the Senate. Indeed, the draft HHS appropriation bill that passed the subcommittee, on which I blogged previously, contains Dickey-Wicker’s familiar language, to the letter. The ambiguity regarding the legality of federal funding of hESC research seems, then, to have reached its low water mark during the past couple of years, and should stay that way…at least until November.

Background

For those of you who are close observers of this litigation: as you were (or skip to the section on today's opinions, below). For the uninitiated-but-interested: Some background. Federal policy regarding funding for hESC research has, since the beginning of this research in 1998, been extremely contentious, wrapped up as it is with ethical, political and diverse religious positions on the moral status of human embryos and other aspects of “abortion politics.” An embryonic stem cell line is so called because the line is derived from an embryo (really, a five-day or so blastocyst), and this process necessarily destroys that embryo. Despite that — or because of it — the funding policies under the Clinton, Bush and Obama administrations have been remarkably similar. In this article, published in September 2009 — one month after the litigation that no one thought would have legs had commenced — political scientist James Fossett and I analyzed these extent to which the Obama Administration’s guidelines for funding hESC research, then just announced by NIH, were likely to achieve two of their stated goals: (1) expanding NIH support for hESC research after what had been widely perceived by the science community as strict limits on it during the Bush Administration, and (2) ameliorating the patchwork of state and private regulatory standards that had come to govern this research in the absence of federal funding.

United House of Prayer, Richmond

When I visited the Oakwood Cemetery in Richmond recently I drove by a United House of Prayer Church.  And because I'm teaching Morison v. Rawlison today I thought that I'd post a picture of the church.  

This week I'm teaching an intensive course on property in a program for college sophemores who are thinking about law school.  It's a pretty good program, actually -- used to be run by CLEO, but now UNC's running this on our own.  Anyway, we do about a day and a half on The Antelope and Johnson v. McIntosh, then switch over to nuisance.  And I begin with a couple of race nuisance cases --Truehart v. Parker and Morison v. Rawlison.

In case you're interested, here's a link to the photographs my former student (and now co-author) Doug Thie took of the place where the church in Morison stood in Colubmia, South Carolina.  Time for some good old United House of Prayer music in class!  Just remember, "shoutin time soon be over."

Rockdale

Close readers of the faculty lounge may recall that I love the opening of Anthony F.C. Wallace's Rockdale.  The book, published in 1972, is a great example of blending social history, based often on quantitative sources, with ideology.  It begins in this way:

There is a village in American called Rockdale where the people used to manufacture cotton cloth.  It lies along the banks of Chester Creek in Delaware County, in southeastern Pennsylvania, between Philadelphia and Wilmington.  None of the people who worked in the first cotton mills is alive anymore, but some of their children's children still live there, and the ruins of stone factories, as well as stone tenements and fine stone mansions, are yet standing.  Nearby are remains of the other hamlets that made up the Rockdale manufacturing district--Lenni, Parkmount, West Branch, Crozerville, Glen Riddle, and Knowlton--where cotton yarn was spun on mules and throstles and cloth was woven on looms powered by water wheels. ...

As I leave my house on the outskirts of the village, drive the car along the roads, stroll along the paths in the cemetery at Calvary Church, I sometimes feel that I can almost reach out and touch the people I have come to know from their letters and diaries and ledgers, that they are near, behind a thin veil of time.  It was just yesterday, just down the road.  And it was so far away, so long ago. ... In a certain mood of elegiacal sentimentality I can see old Rockdale glimmering through a golden haze, where the spinster Sunday School teacher Clementina Smith and her sister Harriet are still sweetly instructing the mill hands in the elements of Christian faith, and the nervous manufacturer John P. Crozer still sweats over preparing a report to the Board of Directors of the Delaware County National Bank, and John S. Phillips, that clever mechanic, still drives his horse Mazeppa in a Byronic fury down the hills and over the bridges to court the Du Pont girls on the Brandywine, fifteen miles away.

Stephen Davis and I modeled the opening of our article on probate in antebellum Alabama on Rockdale.  As I wrote last February:

Every time I read those words again, I recall that it's one of my regrets in life that I didn't take a class with him when I was in college.  Too soon old; too late wise.  But I do plan on making a trip by Rockdale next time I'm visiting Filler in Wallingford, because it's just down the road.

Well... I was briefly in the land of hoagies and Wawa (or should I say Wawas?) recently and had occasion to stop by Rockdale.  (Perhaps this post is part of my continuing series on law professor loose in public.)  It's not quite what I had in my mind's eye -- I was thinking it would be a little more like Ridley Creek State Park.  But it's what I should have had in mind, because its name says it all: rocks and hills.  It's shockingly easy to get to -- just off 452 south of route 1.  (Driving south on 452, make a right on Mount Road, in Aston.)  This quiet industrial village rises above the west branch of Chester Creek.  The Calvary Episcopal Church, which loomed so large in Wallace's Rockdale, is still there.  That's the picture I use for illustration -- and a lot of the houses that go back to the nineteenth century are there as well, along with some that look more early twenty-century-ish.  This is well worth a visit to see how much the village retains the signs of nineteenth century industrialism -- and some of its eighteenth century origins as well.  (According to a story in the Rockdale weekly newspaper, Cornwallis' troops camped here in the wake of the Battle of the Brandywine.)

What I love about Rockdale is that it combines social history with intellectual history -- it shows how the lives and work of the residents combined with the ideas of the market and Christianity, all topics of singificant interest to me these days.  (There are, I suppose, distant echoes of this linking in the missionaries in Hawaii who were operating at the same time, though I hadn't made those connections before.)

Next time I'm back in the land of hoagies I want to stop by the Newlin Mill Park, which is also on the west branch of the Chester Creek.  The Newlin Mill goes back to the early seventeenth century, so it's a substantially earlier site for historical study than Rockdale.  It's been beautifully preserved.  I also have an interest in it because Francis Daniel Pastorius included  a partenership agreement for a grist mill in the Young Country Clerk's Collection treatise.  So that mill can be a place where I can talk about forms of physical and intellectual technology at the same time.  More on this in July, I hope.

St. John's Church, Richmond

Since I'm posting a bunch about Richmond these days, I thought that I'd post a picture of St. John's Episcopal Church in Richmond, which I took on a trip through town in March.  The church yard is fabulous -- George Wythe is buried there, though the monument for his grave is of fairly recent vintage it appears (not sure of the story with that).  Poe's mother is there, too, as I recall.  

Though part of the church was built in the 1740s, it took its present form around 1772.  Never ceases to surprise me how impressive some of the eighteenth century Virginia buildings were.