Some Good and Recent Books on Faith & Law

The Christian Legal Society just finished its list of "20-some" good books on faith and law on Twitter.

Here's my revision of that very good list. 

Second Tier

Joseph Allegretti, The Lawyer's Calling (1996)
Harold J. Berman, Law and Revolution II (2006)
Stephen L. Bloom, The Believer's Guide to Legal Issues (2008)
Gerard V. Bradley, A Student's Guide to the Study of Law (2006)
Jeffrey Brauch, Is Higher Law Common Law? (2008)
J. Budziszewski, Natural Law for Lawyers (2006)
Jonathan Chapman, Herman Dooyeweerd: Christian Philosopher of State and Civil Society (2011)
Edwin S. Corwin, The "Higher Law" Background of American Constitutional Law (2011)
John Eidsmoe, Christianity and the Constitution (1995)
Stephen Grabill, Recovering the Natural Law in Reformed Theological Ethics (2006)
H. Wayne House, The Christian and American Law (1998)
David Hoffman, A Course of Legal Study (1846)
P.C. Kemeny, ed., Church, State and Public Justice: Five Views (2007)
McConnell, Cochran, and Carmella, Christian Perspectives on Legal Thought (2001)
Jay Milbrandt, Go + Do: Changing the World One Story at a Time (2012)
Michael Scaperlanda and Teresa Collett, Rediscovering Self-Evident Truths: Catholic Perspectives on American Law (2007)
Michael P. Schutt, Redeeming Law: Christian Calling and the Legal Profession (2007)
Thomas L. Shaffer, On Being a Christian and a Lawyer (1981)
John Witte, Jr. and Frank Alexander, eds., The Weightier Matters of the Law: Essays on Law and Religion (1996)

First Tier

Thomas Aquinas, Treatise on Law (2000)
Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983)
Harold J. Berman, The Interaction of Law and Religion (1974)
Robert Bolt, A Man for All Seasons (1960)
Gary Haugen, The Good News About Injustice (2009)
Abraham Kuyper, Calvinism and Politics, in The Stone Lectures on Calvinism (2008)
Paul Marshall, God and the Constitution (2002)
Ken Sande, The Peacemaker (2004)
John Witte, Jr., God's Joust, God's Justice (2006)
John Witte, Jr. and Frank Alexander, eds., The Teachings of Modern Orthodox Christianity on Law, Politics, and Human Nature (2007)
Nicholoas Wolterstorff, Justice: Rights and Wrongs (2010)

The Methuselah of Litigation Lives On

Seventeen years ago, in 1995, a small New York City congregation, the Bronx Household of Faith, was told that it could not rent school facilities for weekend use because it would violate the Establishment Clause.  New congregations, congregations that outgrow their own buildings, and congregations whose facilities have suffered fire or flood – all need to rent space, particularly in the expensive real estate market of New York City.

Bronx Household went to court, claiming that the New York City school district was violating its free speech right.  The church lost in the district court and Second Circuit, but did not give up.

Then the Supreme Court issued its Good News Club v. Milford Central School opinion in 2000, in which the Court strongly suggested that the Bronx Household decisions were wrongly decided.  The church went to court again and won.  Since 2002, dozens of NYC churches have rented space on weekends for their services.

But the school district continued to rework its policy to keep the churches out.  In 2007, the Second Circuit upheld the school district’s latest policy that allowed churches to meet for religious speech and discussions -- but not for religious worship services.  When the Supreme Court turned down the church’s petition for review in December 2011, the case seemed over.

But then the Supreme Court issued its January 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, breathing new life into churches’ free exercise claims.  The congregation went back into the district court, claiming this time that the school district’s policy violated its free exercise rights.

Today the district court ruled in favor of the church and all NYC churches.  But the school district is quite likely to file another appeal in the Second Circuit.

Please pray for the Bronx Household of Faith and all churches in New York City that rent school facilities.  Pray that the Second Circuit will uphold their right to do so.  Pray for Jordan Lorence, the attorney faithfully representing the church for seventeen years, and Rick Claybrook who has drafted CLS’s most recent amici briefs in the case.  Finally, please pray for Justice Breyer and his work on the Supreme Court.

Common Sense or Religious Discrimination?

For over 35 years, some public university officials have looked for opportunities to exclude religious groups from campus.  At first, they claimed that the Establishment Clause prohibited religious activity on public educational property because of the “school prayer” decisions.  But in 1981, the Supreme Court held that religious student groups had a free speech right to meet on campus for prayer and Bible study.  In 1995, the Court ruled that religious student groups had a right to funding from student activity fee funding, if other student groups received funding.

Some university officials then adopted a new tack.  All student groups were required to agree to abide by nondiscrimination policies, including prohibitions on religious discrimination.  That would be an easy agreement, but only if nondiscrimination policies were interpreted in a common sense manner to allow religious groups to require their leaders to be religious. 

But a handful of university officials began to misinterpret nondiscrimination policies to mean that religious groups could not require their leaders to agree with their religious beliefs.  Nondiscrimination policies, intended to protect religious students, suddenly were being used to exclude them from campus.  Evangelical Christian groups were most affected because of their common requirement that their leaders affirm statements of faith defining the groups’ core beliefs.

A particularly egregious example of this tortured logic was seen at Vanderbilt University this past year.  In April, the Vanderbilt administration told a Christian student group that it could not require its leaders to have “a personal commitment to Jesus Christ.” Vanderbilt also told the Christian Legal Society that it could not expect its leaders to lead its Bible studies, prayer, and worship, because that indicated that CLS expected its leaders to have certain religious beliefs.  As a result, 15 Christian groups left the Vanderbilt campus this spring.

Please pray for Justice Ginsburg who seems to support exclusion of religious student groups from campus.  Please pray for the students and their faculty advisors at Vanderbilt University.  Pray that university administrators will change course and once again welcome true religious diversity and pluralism to the Vanderbilt campus.

This is the fifth in a series of posts from Kim Colby commemorating the Fortnight4Freedom

Fortnight4Freedom: Smith is the Problem

From Kim Colby, Senior Counsel at the Christian Legal Society's Center for Law & Religious Freedom, our guest blogger during the Fortnight for Freedom:

Please pray that the Court will overturn the Smith decision.  Please also pray for Justice Scalia and his work on the Court.

The problem is Smith.  Religious liberty has always been a fragile proposition.  But it moved to the top of the list of endangered constitutional rights with the Supreme Court’s 1990 decision in Employment Division v. Smith. 

Pre-Smith, the Court allowed religious citizens or religious institutions an exemption from the application of a neutral law of general applicability, unless the government could demonstrate a compelling interest, unachievable by less restrictive means.  In other words, even if the government prohibited the sale of wine in general, it must permit churches to purchase wine for use in Communion services.

In Smith, the Court, in an opinion written by Justice Scalia, removed this religion-protective test.  Religious citizens and institutions no longer are presumed to be exempt from neutral laws of general applicability. 

Over the past two decades, several loopholes have been found in the Smith decision.  But it’s why the government could argue to the Court a few months ago in Hosanna-Tabor that the government could review churches’ employment decisions under the nondiscrimination laws.  Fortunately, the Court distinguished Smith and protected churches’ employment decisions.  But it’s also why the Administration claims it can force religious employers to provide insurance coverage of contraceptives and abortifacients for employees, despite the employers’ religious objections.   

Weekend Wanderings

In case your Google reader is backed up, here are some links to get your week started:

Peter Leithart, Torah and Social Justice over at On the Square at First Things. A thoughtful piece on one of my favorite (and least favorite) topics, "social" justice. HT to Professor Pryor at PryorThoughts.

Jordan Ballor, Which Church? Whose Justice? at the Acton Institute PowerBlog.

Another terrible Ninth Circuit decision. The court holds that public university administrators may apply non-discrimination policies to student religious groups that discriminate on the basis of religion, even while allowing other student groups to restrict membership to those who hold particular beliefs. Any group, in other words, may exclude from leadership or membership anyone who does not subscribe to the group's ideology-- unless the group is a religious group, formed on the basis of "ideology." There is a clear split in the circuits now on this question, so it may be ripe for Supreme Court review. (Here is Steve Shiffrin at MOJ describing the issue).

J. Mark Bertrand, Pattern of Wounds. Bertrand's second installment in the Roland March series is getting great press, and deservedly so. If you like crime fiction, thrillers, cop stuff, noir fiction, mysteries, or any good read, pick up his first March novel, Back on Murder, then move on to Pattern of Wounds. Great stories, compelling characters, and wonderful dialogue. Add Bertrand's rich, but subtly-woven themes surrounding man's search for understanding in the face of the real evil and suffering-- and good-- in the world, and you have the complete package. Have a listen to the Books & Culture podcast and read Lars Walker's recent review of Back on Murder.

Campbell Law Review Symposium

Readers may be interested in this symposium, set for May 18. The lineup of speakers is excellent.

Liberalism, Constitutionalism, and Christianity: Perspectives on the Influence of Christianity on Classical Liberal Legal Thought.

The conference will consider the relationship between liberalism and Christianity and their influence on American constitutionalism. The conference will investigate the extent to which classical liberalism and Christianity influenced the formulation of the Constitution and the thought of the Founding era. It will focus on the importance of foundational Christian commitments to characteristic notions of religious toleration and freedom of association as they are borne out in the thought of the Founders and the founding era.

The conference will be hosted on May 18, 2011, at Campbell University School of Law, located in Raleigh, North Carolina. The following presenters will be featured:

Professor Robert F. Cochran, Director of the Herbert and Elinor Nootbaar Institute of Law, Religion, and Ethics and the Louis D. Brandeis Professor of Law, Pepperdine University School of Law, Professor John M. Breen, Loyola University Chicago School of Law; Professor Bruce P. Frohnen, Ohio Northern University Pettit College of Law; Professor Michael Scaperlanda, University of Oklahoma College of Law; Professor Barry Shain, Colgate University; Professor John Inazu, Visiting Professor, Duke University School of Law; Professor Anthony Baker, Visiting Professor, John Marshall Law School; Professor C. Scott Pryor, Visiting Professor, Campbell University School of Law; Dean Donald R. McConnell, Trinity Law School.

All are invited. Attendees may find more details and register online at: http://law.campbell.edu/pubs/lawrev.cfm?volume=32&number=2

A Funny Thing Happened on the Way to Graduation

As most readers know, except for the recent Supreme Court case involving CLS Law Student Ministries, I don't spend a ton of time on this blog talking about church/state issues or religious liberty litigation. But a USA Today piece caught my attention this morning.

It seems that public schools are looking for larger venues in which to hold graduation ceremonies, and they are looking to local churches-- what we used to call megacurches-- to meet that need. While the churches seem to be open to this use of their facilities, the Usual Suspects-- those who think that public displays of Christian symbols are likely to offend and are therefore unconstitutional-- object to these "public ceremonies in a private religious space." The article quotes the local ACLU as worried that families will have to choose between graduation and "being subjected to religious symbols."

The irony is that the churches don't even "look like churches," and so they may not actually cause anyone to be "subjected" to "religious symbols." One pastor says that his church is a "generic space": "If you . . . walked into the main auditorium, you would not recognize yourself as being in a church."

This case is waaaaaay more interesting for its ironic discussion of "holy space" (and in my view, our failures to reflect the glory of God in our worship spaces) than for any constitutional issue.

UPDATE June 1: A federal judge has ruled it unconstitutional to hold graduation ceremonies in a church, even when the religious symbols are covered. Story from WSJ blog with links here.

"Taxpayer" Money and Christian Legal Society Chapters

This past weekend, Parade magazine did a small feature on the CLS v. Martinez case that will be heard by the Supreme Court on April 19. I've discussed the case before, but it essentially involves the question whether the Constitution permits a public law school to exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments. (For the Petitioner's Brief, go here).

Interestingly, the otherwise straightforward piece, that quotes advocates on both sides of the issue, includes an "online poll" asking:

"Should campus religious groups that exclude non-believers get taxpayer funds?"

Interesting question. The problem is that it has nothing to do with CLS v. Martinez, in which there are neither taxpayer nor public funds at issue. As The Buzz at CLS notes:

Taxpayer funds have nothing to do with the case. This is a a major error in fact. The only funds (they are not "public funds" as one of the other sources erroneously claimed) at issue are student activity fees, and the issue is their equal distribution to student groups.

What's happening right now is that CLS students are being forced to fund, through student fees, groups that conflict with their beliefs, but the school has set up a system that withholds those funds from Christian groups if they refuse to abandon the very reason for which they exist! Of course, the Supreme Court in Rosenberger v. University of Virginia, 515 U.S. 819 (1995), held that public universities could not engage in viewpoint discrimination against religious student groups in distributing student activity fee funds, which is exactly what is happening here.

The case is about recognition by the university, which brings with it the ability to participate fully in the community life of the school and full access to the services and tools used by other recognized student organizations.

Maybe Parade's poll question should have been:

"Should student groups whose leaders are required to share the group's beliefs have equal access to student fees?"

(By the way, my podcast interview with the Christian Legal Society's lead counsel, Kimberlee Wood Colby is available on iTunesU).