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Perry Dane
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Readers of this blog might be interested in my recent post on Canopy Forum trying to shed some light on the current theological and legal debates about shutting down live religious services during this time of plague. Perry Dane Continue reading
Posted 6 days ago at
This is the time of year when I typically draw attention to my short, unpublished, essay about the legal and cultural complications of Christmas. It's available here. The piece speaks for itself. But I do have a few more thoughts in the light of the most recent kerfuffles about the so-called "War on Christmas" and Donald Trump's belligerent crusade on behalf of "Merry Christmas." It's tempting to dismiss the whole business as just a load of silliness. There is no "War on Christmas." And like most folks, I am quite indifferent this time of year to how I am greeted, or whether I am greeted, by casual strangers. That said, though...., (1) My point in the original essay was not to deny or minimize the "secular" side of Christmas, either culturally or historically, but rather to emphasize that the "religious" and "secular" dimensions of the holiday are not easily separated... Continue reading
Posted Dec 25, 2017 at
The Trump administration, in defending Trump's notorious anti-immigrant and anti-refugee executive order in the current emergency proceedings before the federal Court of Appeals for the Ninth Circuit, makes essentially two sorts of arguments. One type of argument goes to to the specific constitutional and statutory merits of the order. The government's brief thus suggests that the executive order doesn't engage in religious discrimination, doesn't violate due process, and so on. The other type of argument, though, goes to the more general claim that at least "those aliens [who] are outside the United States and have never been admitted to this country" can assert no constitutional rights in the first place. The brief quotes language in Landon v. Plasencia, 459 U.S. 21, 32 (1982) asserting that the Supreme court “has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding... Continue reading
Posted Feb 7, 2017 at
Some quick and partial thoughts on Trump's nomination of Neil Gorsuch to the Supreme Court: This country's system for appointing federal judges is, by world standards, bizarre. No other advanced nation, to my knowledge, has a judicial selection system that is so political and politicized. Ideally, we would radically reform the system, either by constitutional amendment or by a less formal grand compact between the political parties. But that seems unlikely anytime soon. In the meantime, the best medium-term hope is that we can somehow lower the temperature on both sides, and resist the temptation to turn nominations to the Supreme Court into occasions for bitter political theatre. In fact, we actually managed to do precisely that through most of the last two presidential administrations. Neil Gorsuch is by all accounts smart, thoughtful, principled, decent, and eloquent. (I don't know much about him, and am willing to be corrected, but... Continue reading
Posted Feb 1, 2017 at
The Oxford Dictionaries declares "post-truth" to be their "word of the year" for 2016. That decision confirmed, as if it needed confirming, that we are suffering through a crisis in public discourse. The "post-truth" crisis is not entirely partisan. Think of the celebrities who peddle a nonexistent link between vaccines and autism or the activists who refuse to accept that genetically-modified foods are probably quite safe. But the rise of Donald Trump has emphasized how much "post-truth" has become a distinctively right-wing phenomenon in America. Politicians who are smart enough to know better deny climate science and reject simple economics. Trump, now sitting in the Oval Office, continues to declare that his Inauguration crowds were the hugest ever and that several million illegal ballots were the only reason he didn't win the popular vote. Kellyanne Conway champions "alternative facts." I am not the only one who wonders sometimes whether our... Continue reading
Posted Jan 25, 2017 at
This is around (or actually after) the time of year when I often pitch my short unpublished essay on the legal and cultural complications of Christmas. See here. That essay speaks for itself. But here are some additional reflections: Donald Trump, among his innumerable other tirades and sputterings, has made a point of trying to reignite the "Christmas Wars" and in particular attack the use of phrases such as "Happy Holidays." It is very tempting to rush to the defense of "the holidays" (as a phrase), if only because Trump's tirades were so obviously coded and pandering. But, in fact, greetings such as "Happy Holidays" and phrases such as the "the holiday season" are complicated and fraught in their own ways, and are actually a symptom of, rather than a solution to, the culture's Christmas puzzle. This, I should emphasize, has nothing to do, for me at least, with any... Continue reading
Posted Jan 9, 2017 at
Some readers of this blog might be interested in my recent D'var Torah (sermonette) focusing on the remarkable passage at Malachi 1:11 and touching on questions relating to the theology of interreligious understanding. See here. Perry Dane Continue reading
Posted Jan 2, 2017 at
It is still time to weep. And to act. But also to pray. Continue reading
Posted Nov 9, 2016 at
So, on the one hand, I find myself befuddled by the North Carolina “bathroom law” and other extreme responses to transgender rights.... On the other hand, the traditionalist reaction does unwittingly reveal a real tension in the transgender and queer rights movement. Continue reading
Posted May 23, 2016 at
As I suggested in my last post, one of the most significant insights in Kennedy's opinion today is his acknowledgment that many opponents of same-sex marriage, "reach that conclusion based on decent and honorable religious or philosophical premises.” Compare that to the very different language in Loving v. Virginia: "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies [laws banning interracial marriage]. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy." At the same time, though, it might now be incumbent for opponents of same-sex marriage, however much they disagree with today's decision, at least to acknowledge that it is not an attack on marriage, but rather an effort to ennoble it. In a more practical vein, that line in Kennedy's opinion might have important... Continue reading
Posted Jun 26, 2015 at
Justice Kennedy’s opinions in gay rights cases have always reached for rhetorical heights, and some critics confuse that with mushy thinking. But his decision in Obergefell is compelling precisely because it avoids some of the cheap clichés that have marked many prior lower court opinions declaring a right to same-sex marriage. (I've critiqued some of those earlier efforts in my own prior work, including "A Holy Secular Institution," available here, and "Natural Law, Equality, and Same-Sex Marriage," available here.) Justice Kennedy, writing for the Court, does not claim that opponents of same-sex marriage are merely bigoted. To the contrary, he acknowledges that many opponents “reach that conclusion based on decent and honorable religious or philosophical premises.” Justice Kennedy does not hold that bans on same-sex marriage are simply “irrational” as some other judges have. Instead, he relies on the fundamental right to marry. Other courts have only thought it possible... Continue reading
Posted Jun 26, 2015 at
Our task on these days is to show mercy. We must understand mercy and its relation to justice as God understands it. We must recognize God’s image in each other. We must appreciate each other as the children whose birth brought delight to God, the long-waiting mother, at the very last possible instant of the creation of the world. Continue reading
Posted Sep 28, 2014 at
When claims for RFRA exemptions from the contraceptive mandate first popped up, I thought that the issues they raised were, on the whole, humdrum. That’s not to say that the cases were easy. But they did involve, or so I believed, largely settled principles. The difficulty was in accommodating those principles to each other on these facts. So as the debate progressed, I was most interested in how both sides described their run-of-the-mill legal dispute in apocalyptic terms, as either a fight for the very principle of religious liberty or a battle against religious tyranny. In an earlier unpublished essay, I argued that each side seemed committed to understanding the dispute, not in the “retail” terms of free exercise disputes, but as jurisdictional conflicts more akin to arguments about the “wholesale” line between the proper scope of church and state. The Supreme Court’s majority opinion in Hobby Lobby – whatever... Continue reading
Posted Sep 12, 2014 at
Some readers of this blog might be interested in a letter to the editor that I had published in the current issue of the New Yorker. Click here and scroll down. The comment to which I was responding is here. UPDATE: The text on the New Yorker website has now been corrected to reinsert two important words that had been accidentally deleted from my original letter. Continue reading
Posted Jun 16, 2014 at
In my last post, I argued that had the Supreme Court -- a la Justice Thomas's concurrence in the Town of Greece case -- never "incorporated" the Establishment Clause against the States, it might still have developed broadly similar limits on state authority by way of the Free Exercise Clause. (It might also have done so by way of Equal Protection or Due Process or otherwise, but I'm going to focus on Free Exercise here.) I want here to suggest three observations -- not so much full-blown arguments as data points -- supporting that counterfactual conclusion. 1. Let's go back to Everson, the case that, without much analysis, incorporated the Establishment Clause in the first place. Justice Black's opinion is Everson is famous for erecting a "high and impregnable" wall between church and state, and then finding that New Jersey didn't breach that wall by providing bus transportation to religious... Continue reading
Posted Jun 2, 2014 at
I've blogged about my take on the Town of Greece prayer case both before and after the decision came down. Here, though, I just want to look at the first part of Justice Thomas's provocative dissent. Justice Thomas argues there that the Establishment Clause is "best understood as a federalism provision" denying Congress "any power to regulate state establishments" and, for that reason, should never have been "incorporated" via the Fourteenth Amendment's Due Process Clause to apply against the states it was originally meant to protect. Thus: "If the Establishment Clause is not incorporated, it has no application here [in a suit against the Town of Greece], where only municipal action is at issue." Case closed. There are good reasons to doubt Justice Thomas's view that the Establishment Clause should never have been incorporated. But let's assume, just for the sake of argument, that he's right. Would that really be... Continue reading
Posted Jun 2, 2014 at
A local paper asked me to write an Op-Ed on the Town of Greece prayer case, but -- with grading and other end-of-semester business in the way -- I got it done too late for them to publish. So here it is: We live in fractious times. Politics, law, religion, have all turned into bitter battlegrounds. Combine the three and all hell, so to speak, breaks loose. Reaction to the Supreme Court’s recent decision in Town of Greece v. Galloway is a good example. In that case, the Court again upheld the constitutionality of official prayers at the start of legislative sessions, explicitly including (as had not been clear before) meetings of town councils. And it rejected the argument that the specific pattern of prayer in Greece, New York, was too narrow and sectarian. Partisans on one side cheered the Court for upholding tradition and national reverence. And partisans on... Continue reading
Posted May 18, 2014 at
This post concerns an old and much-cited legal chestnut that I have come to think might be more profound (and more tied to "law and religion") than first appears. It is also a bleg -- a request for help from anyone out there with some expertise in medieval law or medieval Latin, or both. William Blackstone, in his discussion of statutory interpretation in his Commentaries (first published in 1766), refers to the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," [and] was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit. The point here, of course, is that words should not be read literally if that would give them "a very absurd signification." Blackstone's source, Samuel von Puffendorf, discusses this... Continue reading
Posted Dec 16, 2013 at
A few days ago, a federal district court judge in Wisconsin struck down the so-called "parsonage exemption," under which practicing clergy get to exclude many of their housing expenses from taxable income. Judge Barbara Crabb held that the exemption, included in § 107 of the Internal Revenue Code, violated the Establishment Clause as, among other things, an unjustified special favor to organized religion. Now, I'm generally a "strict separationist" on Establishment Clause questions. But this decision is quite wrong. And it misunderstands an important piece of our church-state dispensation. Some background: With various exceptions, non-cash compensation that employers give to their employees is generally taxed at its monetary value. (Otherwise, we'd all arrange to get large chunks of our salary paid in groceries, gasoline, and dishwasher detergent.) One of those exceptions is a very old principle that excludes from taxable income the value of employer-provided housing on the premises of... Continue reading
Posted Nov 28, 2013 at
A provocative, bizarre-sounding, question. But read on. Polemical yet insightful. Continue reading
Posted Oct 20, 2013 at
Yesterday, during Shabbat services, Jews read Vayera (Genesis 18:1 - 22:24), the portion of the Torah (the first five books of the Hebrew Bible) whose narrative includes the destruction of Sodom and Gomorrah, Abraham's expulsion of Hagar and Ishamel, and then as its climax, the Akedah -- the binding of Isaac. During yesterday's service at the Havurah in my synagogue, I gave a d'var Torah (homily) on Vayera. Here's a lightly edited version: * * * The typical question we’re moved to ask about the Akedah is whether, in Abraham’s willingness to sacrifice his son Isaac at God’s command, he passed God’s test of faith, or spectacularly failed it. That is a big question, but it is too big for me this morning. It might also not be the right question. Because, actually, Abraham failed his test long before the Akedah, long before God called him to sacrifice Isaac on... Continue reading
Posted Oct 20, 2013 at
Some readers of this blog might be interested in my upcoming article, "Nature, Equality, and Same-Sex Marriage." The article proposes a different, I hope more nuanced and responsive, defense of same-sex marriage. Put simply, what I'm trying to do is make sense of same-sex marriage without either unduly hollowing out the "traditional" conception of marriage or relying on the sort of question-begging sometimes found in slogans such as "freedom to marry" and "marriage equality." I hope folks enjoy it. Continue reading
Posted Oct 15, 2013 at
Adapted from my first guest post on the Center for Law and Religion Forum: Mark Movsesian posted briefly about the decision to re-inter the recently-discovered remains of King Richard III in Leicester's Anglican Cathedral rather than give him a Catholic burial. The Catholic bishop of Nottingham has approved the plan, and Mark's post was appropriately relaxed, even tongue-in-cheek, about the whole thing. But some Catholic commentators are genuinely upset. They argue that Richard was Catholic, not Anglican, and deserves a Catholic ceremony. They insist that, for that matter, the Anglican Church didn't even exist when Richard died. Fights over long-dead bodies, famous or not, are often both religiously fraught and emotional. Consider the efforts of American Indian tribes, bolstered by the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990, to reclaim remains that have ended up in museum collections. But they can also implicate deeper issues about religious... Continue reading
Posted Aug 14, 2013 at
Some readers of this blog might be interested in my review, available here, of Islam and the Secular State: Negotiating the Future of Shari‛a by Abduallahi Ahmed An-Na‛im, which just posted on Ancient Traditions, New Conversations: The Blog of the Center for Jewish Law and Contemporary Civilization at Cardozo School of Law. Continue reading
Posted Mar 8, 2011 at
There's a lot of interest in today's decision in Snyder v. Phelps, the Westboro Baptist Church case. But I just want to say this: The Court was right to reject, in its 8-1 decision, Justice Alito's effort to treat a "vicious verbal assault" leading to emotional distress as just like a physical assault. Alito's argument, in effect, was that, even though Westboro's message was otherwise protected by the First Amendment, it did not have a constitutional right to convey that speech by way of an intentional infliction of emotional distress any more than it would have the right to convey its speech by, say, hitting bystanders over their heads with its picket signs. But emotions have the odd and distinct character that they are both intensely subjective and in many ways socially constructed. Westboro's speech is (objectively) vile, but any of us could reasonably react to it with either profound... Continue reading
Posted Mar 2, 2011 at