His Holiness Karekin II with then Cardinal Bergoglio (source).

Dear Brother in Christ,

On the joyous occasion of Your election as successor to the Holy See of St. Peter, we convey to Your Holiness greetings of fraternal love and congratulations.  We pray that the Lord will grant to your Holiness a most fruitful pontificate blessed with many ever-lasting accomplishments for the glory of God and the splendor of the Church of Christ.

We fondly remember our meetings and prayers together with Your Holiness in Argentina, during which we came to know you as a good shepherd, and a courageous, wise, and just Church Leader.  We are happy to avow Your sincere love and affection shown towards the Armenian people. . . .

It is our prayer that our cooperative efforts will continue to grow into the future and that the relations between our two sister Churches will blossom with new achievements for the sake of meeting the challenges facing humanity, and in promoting and fortifying the dialogue and solidarity between nations and religions.

You can read the full letter here.

A federal judge in New York this week denied a defense attorney’s request to exclude Jews from a jury that will hear the case of alleged terrorist Abdel Hameed Shehadeh, on trial for lying to the FBI about plans to kill Americans.  Shehadeh’s lawyer, Frederick Cohn, told the judge that the jury was going to hear incendiary testimony about Jews and Zionism and that Jewish jurors could not be trusted to remain objective.

Many reports of this week’s ruling state that the law forbids excluding jurors on account of religion. Those statements are a bit misleading. The Supreme Court has held that the constitution forbids attorneys from striking jurors on account of race or sex, but has never ruled on whether attorneys may strike jurors on account of religion.

According to my St. John’s colleague Larry Cunningham, an expert in criminal procedure, lower courts are split on that question. There’s learning for the proposition that attorneys may not strike jurors on the basis of religious affiliation itself, but may strike jurors on the basis of religious intensity. For example, in one federal trial in New Jersey, a prosecutor struck two jurors who were active in their churches on the ground that the jurors’ religious convictions would make it hard for them to vote to convict the defendant. An appellate court ruled that the exclusion was proper. As Robert Miller quipped in First Things at the time, “You may thus be struck from a jury not for being a Christian, a Jew, or a Muslim, but only for being a rather devout Christian, Jew, or Muslim.”

So, Shehadeh’s lawyer really should have been more subtle. Perhaps he will revise revise his request to cover only Jews who keep kosher.

This week, the papal conclave begins in Rome. Many expect it will end this week as well, with the election of Pope Benedict’s successor. But reader John McGinnis, a law professor at Northwestern and a leading expert on supermajority rules, alerts me to a recent change that may cause the meeting to last longer than expected.

The rules for the conclave are contained in a 1996 decree by Pope John Paul II. As originally written, the decree retained the traditional requirement that a new pope be elected by a vote of two thirds of the conclave–but with a slight alteration. The two-thirds requirement would hold only for the first 33 ballots, or roughly eight days. After that, the vote would be by simple majority. The purpose, obviously, was to break deadlocks and prevent conclaves from dragging on too long.

In 2007, however, Pope Benedict amended the 1996 decree to reinstate the original rule: a two-thirds requirement on all ballots. As a result, the conclave that begins this week will continue until a candidate receives a supermajority. This could result in a longer conclave, but will ensure that a consensus candidate acceptable to all “sides”–traditionalist and non-traditionalist, European and non-European, curial and non-curial–prevails. And, anyway, recent conclaves have avoided deadlocks, notwithstanding the two-thirds requirement.

In Catholic understanding, of course, the Holy Spirit ultimately guides the conclave and achieves the result the church needs. So one might think this tinkering with voting requirements is rather unnecessary. The Coptic Orthodox Church names its pope by lot. But the supermajority requirement has its value, even if it might occasionally result in a longer conclave, and the Holy Spirit can work through a supermajority as well as a bare majority. As Pope Pius II declared on his election in 1458, “We would judge ourselves entirely unworthy, did we not know that the voice of two-thirds of the Sacred College is the voice of God, which we may not disobey.”

At the CLR Forum site, Italian law and religion scholar Pasquale Annicchino (European University Institute) writes about the attention the Italian media is giving American cardinals in the run-up to the papal conclave. In Rome, he writes, cardinals like New York’s Timothy Dolan represent the “American model” of church-state relations, which, unlike its European counterparts, allows religious voices to be heard in the public sphere:

Today, the real challenge for the Catholic Church, especially according to many European cardinals, is religious indifference and the coming of a post-Christian world represented by a new type of man: the homo indifferens. As a result, the American experience, which represents, in many accounts, a hopeful and affirming Catholicism,  is seen as a success story in Rome. This does not mean that in a few days we will have an American Pope. But  I’m sure, like it or not, that the “American model” will matter in discussions on the future of the Church.

Read the whole thing.

In Habits of the Heart, written almost thirty years ago, sociologist Robert Bellah and his co-authors came up with a term to describe a new American religion: “Sheilaism.” The phrase comes from an interview Bellah conducted with a woman called Sheila, who described her religion as follows:

I believe in God. I am not a fanatic. I can’t remember the last time I went to church. My faith has carried me a long way. It’s Sheilaism. Just my own little voice. . . . My own Sheilaism . . . is just to try to love yourself and be gentle with yourself. You know, I guess, take care of each other.

You don’t have to be a sociologist to appreciate how well Sheila’s comments reflect the mindset of millions of Americans. You can dismiss that mindset as empty and self-indulgent, but in the land of postmodern individualism, Sheilaism has powerful rhetorical appeal. It is preached relentlessly in advertising, books, movies, music, TV programs, even presidential politics (“We are the ones we’ve been waiting for”). It is the effective religion of the “Nones”—the rapidly increasing cohort of Americans who claim no formal religious affiliation—and, one imagines, many churched people as well.

Yet Sheilaism is not a constitutionally recognized religion, at least in the Fourth Circuit. That’s one lesson of the recent, fascinating Psychic Sophie case that my colleague Marc DeGirolami describes in a post this week at CLR Forum. In the case, a Virginia fortune teller, “Psychic Sophie,” argued that local licensing and zoning rules violated her First Amendment right to freely exercise her religion. She described her religion this way:

I am very spiritual in nature, yet I do not follow particular religions or practices, and “organized” anythings are not for me. I pretty much go with my inner flow, and that seems to work best.

She didn’t use the phrase, but Psychic Sophie’s religion is Sheilaism. And, as Marc notes, the Fourth Circuit held that this worldview does not constitute a religion for purposes of the First Amendment. For constitutional purposes, the court reasoned, religion means some organizing principle or authority other than oneself. Going with one’s inner flow does not qualify.

That makes a good deal of sense. Sheilaism is a very useful concept in sociology, but it doesn’t really work in constitutional law. Recognizing Sheilaism as a religion for constitutional purposes would create all sorts of problems. We’d have millions of religions in America, each of which could claim a right to free exercise. We’d be courting anarchy.

Or would we? The really interesting thing about the Psychic Sophie case is that it’s so unusual. With so many Sheilaists in America claiming to follow their own paths, surely we should be seeing many more claims for religious exemptions from generally applicable laws. There should be much more friction in American life. But there isn’t. All these free spirits wind up believing pretty much the same things and acting in pretty much the same ways. Perhaps Sheilaism isn’t really about following one’s inner voice, but the voice of the mainstream culture. In which case, Sheilaism isn’t really about individualism, but conformity. Like the guy said, you can have a car painted any color you like—as long as it’s black.

Many readers will be familiar with Christian Legal Society v. Martinez, the Supreme Court’s 2010 opinion upholding the constitutionality of an “all-comers” policy at the UC-Hastings law school. The all-comers policy required student groups, including religious organizations like CLS, to open their membership to all law students, regardless of belief. By a 5-4 vote, the Court held that this policy was a reasonable, viewpoint-neutral regulation consistent with the First Amendment.

One of the arguments CLS made against the all-comers policy was that the policy made it vulnerable to sabotage by students hostile to its message. Non-Christians could join CLS precisely in order to hijack the organization and subvert its mission. The Court dismissed this concern as fanciful. There was no history of hostile takeovers of campus groups, Justice Ginsburg wrote, and one had to give law students more credit for maturity. Besides, the law school’s code of student conduct prohibited disruption of campus activities; if such things happened, the law school would surely intervene.

Justice Ginsburg’s dismissal of the possibility of student hijacking came to mind as I was reading this post on Rod Dreher’s blog. Dreher describes a recent forum on marriage organized by a student group at Columbia University. The forum was open to everyone on campus and featured speakers with traditional views, including Sherif Girgis, Lynn Wardle, and Bradford Wilcox. Even though  the forum was sold out, the room was half empty. Why? Campus Democrats had hoarded tickets, apparently in an effort to prevent people from attending and hearing the speakers. Some campus Democrats did attend briefly to hold up protest signs and walk out. Here’s one student’s view of the situation, from the Columbia student paper:

From the start, the CU Democrats seemed misinformed—if not intent on spreading misinformation—about the purpose of the forum. It was not, as some that day said, an “anti-gay marriage tirade,” but a debate on the status of the modern family. . . . [T]he issue of the future of the family is a conversation that the CU Democrats seem unwilling to allow to take place, much less to take part in, despite their physical presence.

To be sure, hoarding tickets to a one-day conference is not the same thing as taking over a group. And, depending on your view of things, you might think of what the Columbia Democrats did as a harmless stunt or even a brave gesture for equality. Still, the campus Democrats used an all-comers policy to disrupt an event sponsored by another student group and limit that group’s message from reaching its intended audience. To me, this suggests that the possibility of hostile takeovers is not as far-fetched as the Martinez Court believed.

New York City residents have lots to worry about. The city’s outstanding debt exceeds $100 billion. The interest alone exceeds $6 billion annually. The city’s tax base continues to shrink as businesses, fed up with New York’s high rates, flee to lower-tax jurisdictions. The city’s infrastructure desperately needs an upgrade. And Hasidic shopkeepers in Brooklyn are engaged in a blatant campaign to violate customers’ human rights.

At least that’s what the city’s human rights commission argues. The commission is suing Hasidic shopkeepers who have hung signs in their windows stating, “No shorts, no barefoot, no sleeveless, no low cut neckline allowed in this store.” The commission argues that this dress code discriminates against women in violation of the city’s public accommodations law. According to the deputy commissioner, the signs are “pretty specific to women,” and requiring women to “dress modestly if they come into the store” is illegal.

Now, generally speaking, anti-discrimination laws allow public accommodations to have dress codes, as long as the codes don’t discriminate against protected classes. On its face, it’s not clear how this dress code is discriminatory. It treats men and women the same. Let’s say a barefoot woman wearing shorts walks into a store. She may be asked to leave. Let’s say a barefoot man in shorts tries to do the same thing. He also may be asked to leave. Where’s the discrimination? Now, it’s true that the stores might apply a facially neutral dress code in a discriminatory way.  So, for example, if the shopkeepers in practice excluded only women, that would be a problem. According to the stores’ lawyer, though, there’s no evidence that the stores have ever excluded any woman–or man, for that matter– for any reason.

In short, it’s not clear where the illegality lies. But there’s a deeper point. New York is a cosmopolitan city  in which people with very different lifestyles must find some way to get along. Mostly, New Yorkers do that by tolerating things that offend us. That works fine, most of the time. Maybe these religious storeowners should simply put up with dress they find immodest in the interests of a more expressive society. But is it really too much to ask someone to abide by this fairly innocuous dress code before going into a store, if that’s what the store owner wants? Is the injustice really so great that the store owner must be hauled into court and taught a lesson? Aren’t there more important problems for the city to tackle?

Sugary soft drinks, for instance.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

Americans are often surprised to learn that many foreign countries have anti-proselytism laws. Often, these laws define proselytism as something beyond run-of-the-mill evangelizing. Proselytism typically connotes coercion and undue influence: the religious hard sell. Encouraging listeners to convert in exchange for food or money would qualify, for example; persuading listeners that your faith is the true one would not. On this view, proselytism is a sort of religious unfair trade practice, and anti-proselytism laws a consumer protection device.

I’m ambivalent about these laws in principle. History contains many examples of missionaries who exploited the poverty and ignorance of their listeners, and it seems to me societies could have a legitimate interest in discouraging that sort of thing. Not all countries have signed up for the American version of the religious free market, after all, nor does civilization require them to do so.

But anti-proselytism laws have two major flaws. First, as a recent UN report argues, it is very difficult to draw a line between proselytism and protected religious expression. When does evangelism become coercive? When the missionaries establish a soup kitchen? Or a school? It’s very easy for religious competitors to fabricate evidence of missionaries’ bad faith. History contains many examples of that, too.

Second, and more important, anti-proselytism laws are often written and applied in transparently one-sided ways. Many Muslim-majority countries, for example, prohibit only proselytism directed at Muslims. Proselytism directed at non-Muslims is legal. And one doesn’t need to engage in coercion or bad faith to violate these laws. Straightforward evangelism will do.

Events in Libya this past weekend provide an illustration. Libya arrested four foreign nationals and charged them with proselytism–a crime that carries the death penalty. Apparently, the four were caught printing and distributing Bibles. A report in the Guardian reveals the locals’ shock that anyone would have the gall to do such a thing:

Benghazi lawyer and human rights activist Bilal Bettamer said Libya was a wholly Muslim country and Christians should not be trying to spread their faith. “It is disrespectful. If we had Christianity we could have dialogue, but you can’t just spread Christianity,” he said. “The maximum penalty is the death penalty. It’s a dangerous thing to do.”

And this guy is a human rights activist. Even Christians expressed dismay at what the foreigners were accused of doing, though perhaps Libyan Christians have no other choice. According to the local Anglican priest:

the five Christian churches in Tripoli have a tacit agreement with the authorities not to proselytize. “We don’t distribute literature, so we don’t have any problems,” he told the Guardian. “It is better not to indulge in these activities because we respect Libyans. We respect their religion.”

As of Monday, the foreigners have also been charged with espionage. The prisoners have been given access to their embassies, but one of the four, a Christian from Egypt, told reporters he had not requested assistance. He assumes the Egyptian government will do nothing to help him.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

For First Things readers who might be interested: I’ll be speaking next Wednesday, February 20, at a meeting of the Religion Communicators Council in New York City. My talk will address the emerging field of law and religion. Details are here. Please stop by and say hello!

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

Many Americans know that the Supreme Court has stated that the framers intended the Establishment Clause “to erect ‘a wall of separation between Church and State.’” A smaller number know that the court was quoting a letter from President Thomas Jefferson to Baptists in Danbury, Connecticut—a bit of bad history, since Jefferson’s idiosyncratic views did not fairly reflect the consensus on church-state relations at the time of the framing. A still smaller number know that the metaphor of the wall goes back even further, to Roger Williams, who adapted it from the Book of Isaiah.

But hardly anyone knows the very interesting story that historian Don Drakeman (Church, State, and Original Intent) tells in a recent paper. In “Why Do We Think the American Framers Wanted to Separate Church and State?,” delivered at Oxford’s Rothmere American Institute last month, Drakeman explains that Chief Justice Morrison Waite first used the metaphor in Reynolds v. United States (1878), a case involving a ban on polygamy. According to Drakeman, Waite came upon the metaphor more or less by accident. Waite happened to live next door to the eminent American historian George Bancroft, for whom Jefferson was a hero. Waite consulted Bancroft about the case, and Bancroft advised that, if Waite wanted to know the framers’ views on establishment, he should consult Jefferson:

The Chief Justice then went to the library and skimmed through the index to Jefferson’s collected works. There, he discovered an 1802 letter, in which Jefferson said that the First Amendment built a “wall of separation between church and state.” This statement had been buried for nearly 80 years until Chief Justice Waite unearthed it and cemented it into the foundations of church-state jurisprudence. Bancroft, by the way, got a thank-you note, but no visible credit for creating the Jeffersonian First Amendment.

So much for good originalism. Indeed, so much for ex parte communications about a pending lawsuit! But there it is. Drakeman’s essay is a delight. Check it out here.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

Over at CLR Forum this morning, we have a very quick analysis of the canon law of papal resignation. (It turns out the Code has little to say).

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

You thought there couldn’t be a law and religion angle to today’s news—fascinating for us history nerds—that archaeologists have discovered the mortal remains of Richard III beneath a parking lot in Leicester? Think again. Plans are underway to re-inter the bones in the city’s Anglican Cathedral. Not so fast, say some: the hunchback king wasn’t a Protestant, but a Catholic, and he requires a Catholic burial. In fact, as Shakespeare fans know, Richard died at Bosworth Field (“A horse! A horse! My kingdom for a horse!”), defending his throne from Henry Tudor. Henry went on to reign as Henry VII;  his son, Henry VIII, broke with Rome. As The Tablet’s blog argued this morning, “Had Richard prevailed at the Battle of Bosworth Field, there would have been no Henry VII, therefore no Henry VIII and no Reformation. England today might still be a Catholic country.” Think of it: no Reformation, no Established Church, no Archbishop Laud, no Puritans, no Great Migration — no Massachusetts! — and no Establishment Clause. Surely there’s a law review article in there somewhere.

Leicester Cathedral seems to know it’s facing a sensitive situation. A Catholic priest is keeping watch over Richard’s remains (as is an Anglican, I believe), and the cathedral is planning a “multifaith” burial ceremony. Personally, I’m not sure why English Catholics are so keen to claim Richard, anyway. They must be forgetting the nephews in the Tower.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

This has been a busy law-and-religion news week in the United States, but there was a major story at the European Court of Human Rights as well. On Wednesday, the Grand Chamber heard argument in Fernández Martínez v. Spain, a case that could have major implications for church autonomy in Europe. The applicant in the case is challenging his dismissal as a teacher of Catholicism classes in a Spanish public school. The local bishop, who has authority over such matters under Spanish law, objected when the teacher–a married, laicized priest–appeared at a public rally in favor of optional clerical celibacy. I discuss the arguments in the case at CLR Forum.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

At the British blog Ekklesia, Harry Hagopian has an interesting essay on recent leadership changes in Christian communions in the Middle East. In the past year, he writes, new patriarchs have been selected by Maronite Catholics, the Coptic Orthodox, the Antiochian Greek Orthodox, and, this week, the Armenian Orthodox Church in Jerusalem. These changes have more than just spiritual significance. In the Middle East, Christian leaders traditionally have important civil responsibilities as well: they are seen as representatives of their co-religionists in the wider society. This dual role–spiritual and secular–is a remnant of the Ottoman millet system, which conferred civil  responsibilities on Christian religious leaders. Here’s Hagopian:

It often seems bizarre for many Western minds that Armenians place such hullabaloo on the election of their church hierarchs. I agree that it goes against the grain somewhat, and more so from our own Western perspective where God and Caesar are kept deliberately – and at times constitutionally – apart. Perhaps we interpret the prophetic fire of our faith differently.

However, the Middle East and North Africa region also enjoys a rich but somewhat different culture whereby each community still looks generally at its religious leaders for guidance and support – no more so than in those difficult moments facing the whole region where mounting violence and discrimination or economic hardships are together challenging the quest for dignity and citizenry.

So even though this ‘coming round’ a church leader is gradually diminishing in this part of the world too, I believe that it is still part of the intuitive and cultural genes of its inhabitants and one of the prisms that many Christians, Muslims and Jews use in their daily interplay with each other and with their neighbours – consciously or perhaps even unconsciously.

It’s important to keep the dual role of spiritual leaders in mind when trying to understand intercommunal relations in the Middle East.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

A couple of days ago, I posted about the controversy surrounding a proposed new Christian law school in Canada. I questioned whether it’s a good idea to found a new law school in the current environment and wondered whether Canadian courts would allow the proposed school, at Trinity Western University in British Columbia, to require its students, faculty and staff to adhere to traditional Christian sexual ethics. In the comments, Dr. Janet Epp-Buckingham, a professor at Trinity Western and member of the group that developed the proposal for the new school, objected to some elements of my post, and I offered her the chance to respond more fully on CLR Forum, the website of the St. John’s Center for Law and Religion. You can read Janet’s response here.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

This really isn’t the time to be starting a law school, at least in the United States. Lawyers face uncertain job prospects–the poor economy, outsourcing, and technological innovation continue to reduce demand for lawyers–and fewer and fewer people see a legal education as a good investment. Applications are down dramatically. Maybe this situation is temporary, maybe it’s permanent; we’ll have to wait and see. But starting a law school in this environment–you really have to wonder.

None of these hard facts explains the controversy surrounding a proposed new Canadian law school, however. Trinity Western University (TWU) in British Columbia wishes to start the first religious law school in Canada. The Council of Canadian Law Deans opposes the new school because TWU requires students, faculty and staff to honor traditional Christian sexual ethics: no sex outside heterosexual marriage. This requirement, the deans argue, discriminates on the basis of sexual orientation in violation of Canadian law. TWU maintains that a Canadian Supreme Court case from 2001 allows it to impose the requirement as a matter of religious freedom.

The Federation of Canadian Law Schools, the body that accredits law schools in Canada, has not yet decided whether to grant TWU permission to start its new school. Whatever decision the Federation takes, a lawsuit will no doubt follow. Canadian law on religious exercise uses a balancing test similar to the one in the European Conventi0n on Human Rights. Under that balancing test, government may limit citizens’ freedom of religion if necessary to protect important countervailing interests, including “the fundamental rights and freedoms of others.” Just last week, in fact, the European Court of Human Rights applied this test and ruled that the European Convention allows member states to limit employees’ religious freedom in order to protect the right of same-sex couples to be free from discrimination.

It’s a different jurisdiction, of course, and the Canadian and European cases don’t line up exactly. As a religious university, TWU could raise arguments the European case didn’t address. But, like the European case, TWU’s claim will require judges to balance the right of religious exercise against the rights of sexual minorities. If Canadian judges adopt the ECtHR’s general view of things, TWU’s chances of prevailing in the long run don’t look great.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

Today, a chamber of the European Court of Human Rights announced its decision in the highly anticipated Eweida and Others v. United Kingdom, a group of four consolidated cases brought by British Christians who alleged that the U.K. had violated their religious freedom under the European Convention on Human Rights. From the claimants’ perspective, the outcome was, at best, mixed: The chamber ruled in favor of only one of the four claimants. With respect to the other three, the chamber accepted the government’s argument that important countervailing interests, including the protection of gay rights, outweighed concerns about religious freedom.

The claimants alleged that their employers had violated their religious freedom by disciplining them for manifesting their Christian beliefs. Nadia Eweida, a British Airways employee, and Shirley Chaplain, a hospital nurse, complained that their employers had forbidden them from wearing cross necklaces at work. Lillian Ladele, a public registrar, lost her job when she declined, out of religious conviction, to officiate at civil partnership ceremonies for same-sex couples. Gary McFarlane, a psychotherapist, was fired by a sex counseling service because of his objections to providing sexual advice to same-sex couples. British courts had ruled against all four claimants, who then applied to the European Court for relief.

I won’t get into the details of the analysis here, but, briefly, the European Convention provides that individuals have the right to manifest their religious beliefs, but that governments may limit that right if necessary to protect important countervailing interests, such as public health and “the protection of the rights and freedoms of others.” With respect to the first two claimants, the chamber held that wearing visible cross necklaces qualified as a manifestation of belief under the Convention. This seemingly obvious proposition in fact represented a loss for the British government, which had argued, rather incredibly, that wearing a visible cross is not a protected manifestation of belief, as Christianity does not require the wearing of crosses.

With respect to Eweida, the British Airways employee, the only significant countervailing interest was B.A.’s wish to project a certain corporate image, and this was not sufficient to outweigh Eweida’s religious freedom. (In fact, B.A. has since changed its policy to allow employees to wear visible crosses, a fact the chamber noted). With respect to Nurse Ladele, however, her hospital employer had determined that her necklace posed a risk of injury and infection to herself and her patients. Unlike B.A.’s interest in its corporate image, this was a serious public health concern, and the chamber deferred to the hospital’s judgment on the matter.

With respect to the third and fourth claimants, similarly, the chamber held that the refusal to engage in certain work activities because of religious objections to homosexual conduct qualified as a manifestation of belief under the Convention. In both cases, however, there was a competing Convention right at stake: the right of same-sex couples to be free from discrimination. The Convention allows national governments a certain discretion—“margin of appreciation” is the exact term—in deciding how best to balance competing rights, and the chamber did not believe that the U.K. had exceeded its discretion in these cases. With respect to McFarlane, in particular, the fact that the claimant had voluntarily signed up with a service that offered sexual counseling to same-sex couples militated against his religious freedom claims. In short, in both cases, the government could legitimately determine that the right of same-sex couples to be free from discrimination outweighed the right of the claimants to manifest their religious beliefs with respect to homosexual conduct.

There’s a lot more in the chamber’s analysis, but that’s the gist of it. The claimants may appeal the ruling to the Court’s Grand Chamber; we’ll have to wait and see. In the meantime, the ruling suggests that the European Court will be pretty deferential to arguments that workplace manifestations of religious belief must take a back seat to other concerns, including the state’s interest in ending discrimination on the basis of sexual orientation. As conflicts over religious freedom increasingly seem to involve sexuality in some way, that’s not an especially encouraging message for advocates of religious freedom.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

The European Court of Human Rights in Strasbourg has announced that it will issue a ruling tomorrow in Eweida and Others v. United Kingdom. As I wrote back in September, when the cases were argued before the Court, the cases could have a significant impact on religious freedom in Europe:

The applicants in these cases argue that UK courts failed to protect their [rights under the European Convention on Human Rights] by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

I’ll offer an analysis of the Court’s ruling later in the week.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

An update on an earlier post about an English appellate court decision on the right of Christian employees to decline to work on Sundays. The decision was released to the public last week, and it turns out that initial press reports were a bit misleading.

The case involved Ms. Celestina Mba, a caregiver in a children’s home who wished to abstain from work on Sundays for religious reasons. When her employer told her she would have to work Sundays, Ms. Mba sued for religious discrimination. A lower court held for the employer and, last month, an  appellate court affirmed.

Under English law, employers can require Christian employees to work Sundays  if there is a legitimate need and the work requirement is proportionate to that need. Press reports, particularly this one in the Telegraph,  made it seem like the appellate court had ignored that balancing test and held categorically that Sunday observance is not a core Christian belief and that Christians could be required to work.

As it turns out, the appellate court did discuss the balancing test. The facts of the case were these. The center had accommodated Ms. Mba for two years, but had ultimately determined that allowing her to stay home Sundays put too great a strain on other staff and threatened to disadvantage the children. These were surely legitimate business needs. And the center had only required Ms. Mba to work some Sundays — roughly two out of three. This seemed a proportionate response to that need.

So where did the language about Sunday observance not being a core Christian belief come in? The lower court had reasoned that, because many Christians do not feel an obligation to abstain from Sunday work, abstention could not be considered a core Christian belief. The appellate court criticized the lower court’s language on this point, but basically agreed with the lower court’s reasoning. In determining whether a work requirement were proportionate to a legitimate business need, the appellate court explained, one had to consider what percentage of a faith community the requirement would affect. If the requirement would affect a large segment of the community, that would suggest that the requirement were disproportionate. If, by contrast, the requirement would affect only a small percentage, that would suggest the opposite. Here, the appellate court reasoned, in requiring Sunday work, the center could take into account the fact that many Christians would have no objection at all to working Sundays.

This is all a bit complicated, the way legal opinions often are. Frank Cranmer at the Law and Religion UK blog has a good description of the opinion, if you’re interested in more details. The bottom line is that the appellate court’s decision was narrower and more subtle than the Telegraph’s report conveyed.

Why did the Telegraph get it wrong? The appellate court’s judgment was announced on December 13, but the opinion was not released to the public until January 10. The Telegraph reported the story at the end of December, before the opinion was available. Apparently the reporter relied on lawyers’ accounts of the case.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

I’ve written here about the role of Islamic law in Egypt’s new constitution, which voters approved last month. The constitution represents a significant victory for Morsi’s Muslim Brotherhood. But, as Walter Russell Mead points out on his blog today, the Brotherhood still faces major problems. Egypt is on the brink of an economic crisis that the Morsi government seems unable to handle.

Since the Arab Spring, foreign investors and tourists have fled Egypt and the country’s currency has plummeted. Regional allies like Turkey and Qatar have lent Egypt billions of dollars, but the IMF, which has the real money, is refusing to advance roughly $5 billion until the Morsi government implements an austerity package. This would mean political disaster for Morsi, since many Egyptians depend on government food subsidies to survive. So things are in a holding pattern. Meanwhile, the bad economy is creating a security crisis. Egyptians complain about a lack of basic safety.

It’s hard to know what will come next. Perhaps frustrated Egyptians will decide that the problem is that the Muslim Brotherhood is not Islamist enough and turn to the even more radical Salafis. I can’t imagine the Salafis would have a better relationship with the IMF, though. Or perhaps a military strongman who mouths the correct pieties will take charge. Anyway, it’s hard to imagine a situation in which Egyptians turn to the secular liberals whom the West hoped would run Egypt after the fall of Mubarak.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

Here’s an unusual case. Muslim parents are suing a public school in south London for refusing to allow their nine-year-old daughter to wear a head scarf to class. That’s not so unusual in itself. Law school casebooks are full of cases in which parents sue public schools for failing to accommodate their children’s religious practices. What makes this case unusual is that the public school in question, St. Cyprian’s in Croydon, is an Orthodox Christian school.

To Americans, faith-based public schools are unfamiliar. As Ashley Berner explains here, however, such schools are common in England. According to the official government website, roughly seven thousand “maintained,” as in publicly maintained, “faith schools” exist, the large majority of which are affiliated with the Church of England. St. Cyprian’s is affiliated with the Greek Orthodox Church—it is the only Greek Orthodox school in England, in fact. As a faith-based school, St. Cyprian’s may give priority in admission to Greek Orthodox students, though by law it must admit students of other faiths if places remain unfilled. As far as I can tell, like other public schools, St. Cyprian’s may adopt its own school uniform policy, subject to very broad guidelines.

I’m not sure how the English courts will resolve this dispute. But the whole situation is puzzling and it’s a shame things have come so far. It’s odd, in the circumstances, that the parents would insist on a Greek Orthodox school for their daughter. If it’s so important to them that she maintain Muslim practices, why put her in a school in which a different religion is pervasive? Isn’t that a bit unreasonable, and unfair to her? The school says the parents petitioned to send their daughter to St. Cyprian’s, and that the school’s rule against head scarves was explained to them before she matriculated. St. Cyprian’s has very high academic ratings; perhaps that explains why the parents are so eager to have their daughter attend. Still, it’s all rather odd.

On the other hand, the school’s position is puzzling as well. There’s nothing in Orthodoxy that forbids the wearing of head scarves; in fact, some Orthodox women wear head scarves in church. Perhaps St. Cyprian’s is concerned that a visible non-Orthodox presence would dilute the school’s identity. That’s a valid concern, in my opinion. And I can understand how school officials might think they’ve been sandbagged by the parents in this case. If the parents knew about the rule against head scarves before their daughter matriculated, why are they complaining now? But the law requires St. Cyprian’s to admit non-Orthodox students if it has places for them, and it doesn’t seem tenable to admit such students and then forbid them from wearing their religious attire. Anyway, mightn’t it be better, in the circumstances, to allow this student to wear her head scarf? What would demonstrate more effectively the essential nature of Christianity—its willingness, even joy, in serving everyone and anyone?

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

Here’s an interesting report from NPR on two recent prosecutions for the crime of blasphemy in Greece. In the first, the government brought a blasphemy charge against the poster of a Facebook page that mocks a famous Orthodox monk; the government has since dropped the blasphemy charge but has maintained a prosecution for the separate crime of “insulting religion.” In the second, the government is prosecuting the producers of a Greek translation of Terrence McNally’s Corpus Christi, a play that depicts Jesus and his disciples as a group of gay men in Texas.

Most European states have abolished the crime of blasphemy. The U.K. did so in 2008. Nonetheless, the European Court of Human Rights has held more than once that states may criminalize blasphemy in order to protect human dignity—that is, in order to protect the religious sensibilities of listeners from gratuitous and substantial offense. States can’t ban all criticism of religion, of course, only criticism that is insulting or abusive. Obviously, this is not an easy line to draw. In the U.S., in fact, the Supreme Court has suggested strongly that blasphemy laws are unconstitutional, in part because of the line-drawing problems.

What about the Greek prosecutions in these cases? I can’t read Greek, but the Facebook page in question, which you can access from the NPR story, seems more tongue-in-cheek than anything else. I’m not surprised the government dropped the blasphemy prosecution, though, of course, the prosecution for “insulting religion” continues. The Corpus Christi case seems closer to those in which the European Court has allowed blasphemy prosecutions in the past. In the 1990s, the court allowed Austria to ban a film that depicted sexual tensions between Christ and the Virgin Mary, and allowed the U.K. to ban a film depicting the vision of St. Teresa of Avila in erotic terms. So the Court might be inclined to allow prosecution in the Corpus Christi case, too, if the case ever reaches Strasbourg. Then again, Greece doesn’t stand so high in the opinion of European institutions these days.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

Here’s an update to last week’s post about a movement to curtail Sunday shopping in Europe. In that post, I speculated that allowing stores to open Sundays might create pressure for observant Christian employees: skip church and report to work, or lose your job. It turns out this concern isn’t speculative. In England, a High Court judge recently ruled that employers may discipline observant Christians who refuse to work Sundays.

The case involves Ms. Celestina Mba, who worked as a caregiver in a government-run children’s center. A devout Baptist, she goes to church every Sunday and does not wish to work on that day. When her employer—a government agency, note, in a state with an established church—pressured her to work Sundays, she quit and sued for employment discrimination. She lost at trial and, last month, in the High Court as well.

Why did she lose? English law allows employers to require employees to work Sundays if there is “a legitimate business need.” According to press reports, though, the High Court did not rely on that principle in Ms. Mba’s case. Rather, the court reasoned that Christianity did not require Sabbath observance in the first place. Plenty of Christians work Sundays, the court noted; only a few, like Ms. Mba, see it as a problem. As a result, religious freedom was not seriously implicated by requiring her to work. Employers, the court reasoned, do not need to accommodate outliers like Ms. Mba.

Now, this reasoning is very odd. The fact that some of those Christians who work Sundays might be doing so because they have to—that is, because otherwise they would lose their jobs—apparently did not occur to the court. Moreover, the fact that many Christians see no problem with working Sundays doesn’t mean that other Christians cannot have a legitimate religious objection. Courts don’t usually require that practices be “mainstream” within a religion in order to receive legal protection. Besides, attending church on Sundays is hardly an esoteric practice in Christianity. Many Christians are known to do it—though not in today’s England, I guess.

Something strange is happening in the U.K. It’s not just Ms. Mba’s case. In a separate case currently pending at the European Court of Human Rights, the British government has taken the position that employers may fire Christian employees who wear crosses to work. Again, the argument is that religious freedom doesn’t apply in such situations. Why? Because wearing a cross is not “generally recognized” by Christians as a religious requirement: most Christians don’t wear crosses, so individual Christians don’t have a right to wear them. But where’s the sense in that? Most Christians don’t carry Bibles around with them, either. Does that mean forbidding Christians from carrying Bibles would not implicate religious freedom?

We’ll see in the next several months what the European Court makes of all this. I wonder whether Ms. Mba will apply to that court for relief in her case. I note she is represented by British religious rights lawyer Paul Diamond, who argued the cross-wearing case at the European Court last fall. You can watch the argument here.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

Every year, it seems, Christmas becomes more commercialized. In NYC this year, we started seeing Christmas decorations in stores in October. In October. Christmas is starting to lap Halloween.

I was thinking about this when I read that the Catholic Church in Italy is working to repeal that country’s new Sunday shopping law. Earlier this year, in an effort to stimulate the Italian economy, the Monti government enacted a law allowing shops across the country to open on Sundays. The new law is opposed by a coalition including the Vatican, small shop owners, and some secularists who argue that a nationwide day of rest is in everyone’s interest. The Italian campaign is part of a larger movement called the European Sunday Alliance, a network of “trade unions, civil society organizations and religious communities committed to raise awareness of the unique value of synchronized free time for our European societies.”

The Sunday Alliance is not at heart religious. Sure, some Christians argue that Sunday shopping violates the Sabbath, but mostly the movement has secular goals, such as working less, putting a brake on commercialism, and spending time with family and friends. To be sure, small shop owners have an economic interest in ending Sunday shopping, since the practice disproportionately favors big-box retailers. But it’s not like the big-box retailers who favor Sunday shopping are being altruistic. They’re only advancing their economic interests.

The arguments for allowing Sunday shopping are pretty straightforward. Increased commercial activity means more wealth and greater tax revenues. More people will be able to find employment. And there is the matter of consumer choice. If people want to buy TVs on Sundays, why should the state stop them? Who’s harmed? Finally, allowing shopping on Sundays could be seen as a gesture toward religious pluralism. Not everyone observes the Christian Sabbath, and Sunday closing laws may create burdens for non-Christian businesses and consumers.

These arguments have carried the day in America. Notwithstanding the fact that the Supreme Court has declared Sunday closing laws constitutional, most places allow Sunday shopping nowadays. Americans have become accustomed to the convenience and see nothing wrong with it. A movement to ban shopping on Sundays in America would go nowhere.

To my mind, though, opponents of the new Italian law have a point. Economics isn’t everything. It’s not unreasonable to think that, one day a week, society should forgo buying and selling, even if that means a reduction in wealth and tax revenues. (Tax revenues? In Italy? Who are we kidding?) In a culture as homogeneously Catholic as Italy’s, Sunday is the only realistic option. Moreover, it’s not unreasonable to think that Sunday store openings will create a situation in which observant Christian employees feel pressured to work, or that Sunday shopping will threaten traditions Italians enjoy. Perhaps Italians don’t want a society in which Christmas becomes, inevitably, the Biggest Shopping Season of the Year.

So, to the opponents of the Italian law, I say, Good Luck. And Buon Natale.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.

One often hears that America’s foreign policy elites don’t understand religion. Mostly secular themselves, they dismiss religion as a factor in world events; at most, they believe, religion operates as a pretext for other, deeper motivations, like politics and economics. This attitude can blind policymakers to reality. Even after 9/11, some foreign policy experts continue to minimize the religious roots of Islamism.

Some of this attitude is on display in the most recent National Intelligence Council Report, Global Trends 2030: Alternative Worlds, released earlier this month. The report, prepared every four years for the incoming administration, is meant to highlight medium- and long-term trends in world affairs. Global Trends 2030 has received a lot of attention, primarily for its prediction of a decline in American power and a shift to a multipolar world. The report is also noteworthy, though, for the way it downplays religion’s role in shaping events.

It’s not that Global Trends 2030 completely ignores religion. The report discusses political Islam—we’re now paying attention to that phenomenon, at least—though some of the analysis might strike readers as optimistic, for example, the assertion that the protesters of the Arab Spring “acted in the name of democratic values, not in the name of religion.” (Apparently the report was prepared before recent events in Egypt.) The problem is that the report minimizes religion. In 140 pages, religion appears only episodically, in a paragraph or two here and there. The most sustained treatment, which takes all of two pages, treats religion as part of the “Ideological Landscape,” which the report places under the heading of “Individual Empowerment.” Religion doesn’t make it into the bullet points.

The most glaring omissions have to do with Christianity. For example,Global Trends 2030 cites the growing economic and political power of Asia and the developing world. But the report ignores the fact, cited by many religion scholars, that Christianity is experiencing a boom in those places. Not too long ago, a high-ranking Chinese official joked that the most popular thing the Party could do would be to make Christianity the state religion. Or what about the unprecedented surge in Pentecostalism in Latin America? Or the explosion of Christianity in sub-Saharan Africa? Surely a report addressing the rise of the Global South should address these developments in detail.

Or take another example. The report identifies an expansion of the middle class around the world as an important trend to watch. But the report misses the fact that the new middle-class strivers in places like China increasing identify with Christianity, which they see as the religion that has allowed the West, and especially America, to triumph. Apart from a quick reference to the fact that increased urbanization may help Christian (and Muslim) activists to “bolster religious cohesion,” the report doesn’t address this phenomenon.

It’s good for intelligence analysts to be hard-headed about global trends. They need to give clear, unemotional advice to the President and people responsible for our foreign relations. But paying more attention to religion would not be a surrender to enthusiasm. It would be an acknowledgement of reality, and it would make for better statecraft.

Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.