Legal Writing for Legal Reading!

Archive for the category “Musings: Religion and the Law”

A Collection of Law and Religion Writings by James W. Cushing

Over the course of my career, I have written extensively on how law and religion intersect.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!




More Christian Clergy Are Saying “I Don’t” to Civil Marriage

Last week I posted an exploratory paper called Civil Marriage, Uncivil Times by The Reverend Canon Mark Rudolph, about whom you can learn here, who the rector of Saint John the Evangelist Anglican Church in Abington, Pennsylvania.  You can see the aforesaid post here.  The basic thrust of the paper is the movement of Christian clergy away from issuing civil marriage licenses and merely conducting Christian (i.e.: religious) marriages.

Fr. Rudolph drafted this paper as its proposition gains steam in American Christendom.  Indeed, just recently Philadelphia Roman Catholic Archbishop Charles Chaput suggested that the Church get out of the civil marriage business (see here).

Apparently Fr. Rudolph and Arbp. Chaput are onto something as the idea that Christian clergy discontinue issuing civil marriage licenses has gained traction in other Christian circles.  Jonathan Meritt in On Faith & Culture reports here that this idea is becoming more than just a merely theoretical action to be taken.  Indeed, First Things has now issued a so-called “marriage pledge” calling and challenging Christian clergy to withdraw from issuing civil marriages.  You can see the pledge here.  Of course, there are also Christian clergy who wish to slow down this movement a little in order to allow for more time for discernment, and you can read about that here.

So, needless to say, this is a very interesting development and I will be following it and reporting on it here so please stay tuned!

Civil Marriage, Uncivil Times: An Exploratory Paper

The Reverend Canon Mark Rudolph, about whom you can learn here, is the rector of Saint John the Evangelist Anglican Church in Abington, Pennsylvania.  As it happens, St. John’s is my home parish and Fr. Rudolph is my priest.  St. John’s, like every other church which remains steadfast in supporting the traditional, historic, biblical, and Christian teaching about marriage, is struggling to find its place in a cultural, legal, and governmental environment where Christian marriage is in steep decline and battling back things like divorce, adultery, unmarried cohabitation, and homosexual relationships, among many other things.

Christians are finding various ways to address the various social ills described above, and one way, though certainly not the only way, to do so, is described by Fr. Rudolph in his exploratory paper entitled Civil Marriage, Uncivil Times.  In the paper, Fr. Rudolph surveys the status of civil marriage in the United States, takes account of where it is going at this point, and suggests a way for churches to deal with their involvement in civil marriage in the near and foreseeable future.

His paper is rather thought provoking and appears to reflect the direction many churches are going right now.  I have attached his paper to this blog to spark a conversation and invite comments and questions about it.  It can be reviewed by clicking on the images below or, at the bottom of this blog, by clicking the link to the .pdf file.


Here is a downloadable .pdf of the paper: civil marriage uncivil times.11-17-14

Halloween Cancelled?

Much has been said about the so-called War on Christmas and, more generally, the expression of religion in the public square.  I think we all have seen the increase in the use of “Happy Holidays” over “Merry Christmas” and the decline (and sometimes cessation) of decorations in public spaces of Manger Scenes (i.e.: decorations showing Jesus’ birth) and other such things.  Regarding religion, if you have been paying attention, I am sure you have seen or heard the news stories of controversies over using a Bible for swearing in, having “In God We Trust” on American money, praying publicly during a public school ceremony, holding church services within a school building, and other such things.

Now, for those who know me or read my writing know that I think much of the above ranges between the silly to being overtly anti-religion.  I understand, appreciate, and, in fact, agree with the First Amendment imperative that Congress (since expanded to the government in general) ought not engage in behavior which respects the establishment of religion.  Indeed, many of the first people who emigrated to this New World did so in order to escape established religion so that they could worship (or, indeed, not worship) freely and in any way they choose without any sort of government involvement.  As a result, religious freedom has become a part of the fabric of American ethos.  Therefore, I agree with things like restricting school led prayer as that smacks of government advancing a certain religious belief over others.

For the record, I am not opposed in principle to having an established religion as long as the citizenry are on board with its establishment.  When it comes to the United States, however, we started life as a nation directly opposed to establishing religion and have since continued unchanged ever since.

Although I understand and agree with the First Amendment, as described above, I also think that the application of the First Amendment has occasionally become absurd and draconian.  I do not think that the First Amendment ban on establishing religion equates to the government being free from religion.  When it comes down to it, religion is a big part of the lives of tens of millions of Americans and our government represents those people just as much as it represents those who are not religious.  Therefore, in my view, a government entity may display a creche during Christmastide, a menorah during Hanukkah, or some other religious symbols for other religions holidays in order to acknowledge, respect, and represent the religious practices of its people; I do not think that doing so somehow equates to establishing religion.  In other words, taking actions which respect, acknowledge, and represent the various religious beliefs of the people seems to be consistent with avoiding the establishment of any particular religion.

It would seem that the modern American religion/legal ethos is to interpret the First Amendment to mean that government must be completely devoid of religion.  I can see the  attraction of this position and the practical nature of it.  I would imagine many Evangelical Christian groups being upset if, say, the government publicly recognized an Islamic holiday.  In my view, if the government is, as I said, simply acknowledging, respecting, and representing its citizens by noting a religious holiday or practice, I think that is perfectly fine, however, the government – perhaps wisely – has essentially elected, generally speaking, to avoid the debate entirely as to what exactly acknowledgement, respect, and/or representation is, as distinct from establishment, and simply tried to excise religion entirely.

Now, obviously, generally a balance is struck between completely excising religion on one side and  acknowledging, respecting, and representing religion on the other.  Even in our sometimes religion-phobic society out there, a government will wish “Merry Christmas” and erect a menorah during Hanukkah.  I happen to believe that the balancing pendulum between the two (2) sides has swung too far toward non-religion and that is expressing itself in the recent matter of Inglewood Elementary School in Montgomery County, Pennsylvania.

Inglewood Elementary School is a school within the North Penn School District.  The principal of the Inglewood Elementary School attempted to restrict Halloween celebrations because some view Halloween as a religious celebration.  The fact that Halloween is a religious celebration hits home to those who identify themselves as Wiccan and/or Pagan.  Many parents – and rightfully so in my view – responded to the principal’s attempts to restrict the Halloween celebrations with reactions ranging between being stupefied to angry to disappointed.  The parents realized that Halloween, though sometimes religious, is also part of our culture and, quite frankly, a 5-year-old-boy who just wants to have fun wearing a Batman costume while eating a Three Musketeers Bar is clearly not cognizantly engaged in any religious practice.

Since the outcry of the parents was so loud, the North Penn School District has since generally backed off its Halloween celebration restrictions.  A wise move in my mind.  In saying that, however, I am sure that when December rolls around, this same school district – which seems to accept the influence of Wiccan/Pagan religious influences in his schools – will hold a ridiculously named “Winter Party” (or something like that) as opposed to a “Christmas Party” because of some irrational fear of religion (and/or Christianity in particular).  I am also sure that this same school district will proscribe various Christmas celebrations to degree far beyond that of its proscriptions of Halloween.  Why is this?  Is the celebration of other religions – or Christianity in particular – so much more threatening to, say, the celebration of Wicca or Paganism?  Or does this reflect a general prejudice against Christianity?

Although I think such avoidance of religion is absurd, I do think that the rules should apply to all religions equally.  Therefore, if Halloween – an admittedly religious holiday – is celebrated, then other religious holidays, such as Christmas, ought to be observed in same way as well and not watered down to merely “Winter Holidays” (or conversely, all religious celebrations ought to be restricted).  Although I do not necessarily ascribe to the more extreme pundits who claim that there is a War on Christmas, I do think that situations like this school district reflect the possible bias against Christian religious holidays that fuels the perception that there is a War on Christmas (or Christians generally).

We, as a society in general, and the government in particular, need to do a far better job at respecting the beliefs of one another and allowing each one of us to equally use the space in the public square to express our religiosity.  Otherwise, the imbalance of the extent of religion is permitted in the public squire will continue to be a cause for controversy and continue to at least give the appearance of, if not the actual, preferring of one religion  (Wicca/Paganism) over another (Christianity).

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