Monday, October 30, 2017
In the last month, I've given a lecture, "Religious Freedom in a Polarized Age," as the Lin Lecture at St. Mary University Law School in San Antonio, and as the Veninga Lecture at the Wisconsin Institute for Public Policy and Service. Recordings of those lectures are, respectively, here and here. A summary paragraph:
In [recent high-profile religious liberty] cases, divides over religious liberty increasingly trace, and even intensify, the divides over the underlying policy issues: sexual morality, health policy, immigration, national security. If you support LGBT nondiscrimination laws, you reject any religious-liberty challenges to those laws; likewise if you support immigration restrictions. Both left and right do it.
This is a bad development: that’s my thesis today. We must renew our commitment to religious freedom for all. That proposition has two parts. First, we should place a strong value on religious freedom, which I define as the ability of people to live consistently with their religious beliefs and identity, presumptively free from government penalty for doing so. We have to balance that freedom with other values, but it should receive heavy weight in the balance. Second, that strong freedom must extend equally to all faiths. We need to protect Muslims and conservative Christians. Today more than ever, Americans need to affirm what Justice Oliver Wendell Holmes called “freedom for the thought we hate.”
As I posted recently, Professor Doug Laycock and I filed a brief in the Masterpiece Cakeshop case on behalf of the Christian Legal Society and other amici, evangelical Protestant, Mormon, and Jewish. Our brief focused on the Free Exercise Clause claim, arguing that "Colorado’s Anti-Discrimination Act, as applied, ... violates the [c]lause" because "[i]t is neither religion-neutral nor generally applicable" under Church of the Lukumi Babalu Aye v. City of Hialeah and Employment Division v. Smith. We argued in short, that
Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships [and who were sued for discrimination against a religious belief]. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding [and who was held liable for sexual-orientation discrimination]. The state court applied flatly inconsistent reasoning to the two claims.
Our brief drew a critique at the Take Care blog from Professor Jim Oleske (Lewis & Clark Law School), who argued that we were reading Smith and Lukumi too favorably to religious exemptions. Oleske argues that those decisions protect religious exercise only against laws targeting it for regulation.
We've now posted our reply to Oleske's critique, also at Take Care. A couple of sample bits:
In Lukumi, the Supreme Court made clear that “neutrality and general applicability,” particularly the second element, turn on whether the government has regulated a religious practice while failing to regulate analogous secular conduct that undermines the same interests as those allegedly undermined by the regulated religious practice. The Court found that the state had “devalue[d] religious reasons for killing [animals] by judging them to be of lesser import than nonreligious reasons.” 508 U.S. at 537. This “devaluing” can happen even when only a small number of other interests are left unregulated. When the government deems some private interests and activities sufficiently important to protect and others insufficiently important, religious exercise should be treated like the important interests, not the unimportant ones. Religious exercise is an interest deemed important by the constitutional text....
... Both sets of bakers were in the business of producing custom cakes to customers’ specifications. Those bakers who refused to produce cakes attacking same-sex marriages were protected; those bakers who refused to produce cakes celebrating same-sex marriages were not.
Of course, Colorado is free as a matter of state law to determine that Phillips’s conduct violated the nondiscrimination statute. But it is not free to interpret religious discrimination in a narrow way that protects the conscience of bakers with whom the state agrees, and then interpret sexual-orientation discrimination broadly to penalize a religiously motivated baker with whom the state disagrees. Such a discriminatory interpretation makes the law not neutral and not generally applicable.
I will be at Yale Law this Thursday, speaking on "Revisiting 'Reliance Interests' in Planned Parenthood v Casey: Does 'Relying' on Abortion for Equality Actually Serve Women's Equality?" The talk is sponsored by the Yale Law chapter of the Federalist Society and will take place in Room 120 from 12:10-1:30pm.
I have the honor, at Notre Dame Law School, of holding the Paul J. Schierl / Fort Howard Corporation Chair. A few days ago, Mr. Schierl died at the age of 82. He lived a full, rewarding, and exemplarly life, in the law and in his community. Read about him, his work, and his family here. R.I.P.
Sir Roger Scruton will deliver the keynote address at the second meeting of The Tradition Project, convening this Thursday, November 2, at the New York Athletic Club, 180 Central Park South. Reception at 6:00, address at 7:00.
The title of his lecture is "Tradition, Culture, and Citizenship." Please refer to this notice for more details about the project, and please write either to me or to Mark Movsesian if you are interested in attending.
Sunday, October 29, 2017
Stanley Hauerwas has an (as one would expect) provocative and someone idiosyncratic reflection up at the Washington Post. (I'm assuming that, in keeping with the usual practice, Hauerwas didn't pick the particulars of the headline." A bit:
Five hundred years after its inception, we are witnessing the end of the Reformation. The very name “Protestant” suggests a protest movement aimed at the reform of a church that now bears the name of Roman Catholicism. But the reality is that the Reformation worked. Most of the reforms Protestants wanted Catholics to make have been made. (Indulgences are no longer sold, for instance.) A few Protestant denominations might still be anti-Catholic (consider evangelical pastor Robert Jeffress’s claim, recently publicized, that Catholicism has Satanic origins ), but the original idea that Catholics adhere to a legalistic perversion of Christianity that does not admit the free grace of God is seldom seen, these days, as the Protestant difference from Catholicism. Over time, historians have helped us see that there was no one thing the Reformation was about, but that if there was a single characteristic at its heart, it was the recovery of the centrality of Christ for making sense of why Christians are not at home in this world. That emphasis turned out to be the overriding insight that shaped the work of Vatican II, meaning Catholics have overcome the major thrust of the Reformation.
That the Reformation has been a success, however, has put Protestantism in a crisis. Winning is dangerous — what do you do next? Do you return to Mother Church? It seems not: Instead, Protestantism has become an end in itself, even though it’s hard to explain from a Protestant point of view why it should exist. The result is denominationalism in which each Protestant church tries to be just different enough from other Protestant churches to attract an increasingly diminishing market share. It’s a dismaying circumstance. . . .
My own sense is that it's difficult to reduce or distill the Protestant Reformation (Revolt?) down to one "single characteristic" and so it is also difficult to pronounce with confidence who "won" or to say what "winning" would even be. (A lot of early Protestants had a whole lot of practices and teachings in their sights - e.g., the veneration of Mary, the Sacraments, etc. - that still seem to be going strong.) Still . . . interesting.
Thursday, October 26, 2017
My friend and colleague, Prof. Paolo Carozza, shared with me the address he delivered a few years ago at Benedictine College. It is a very thoughtful reflection on the life and witness of St. Benedict and his relevance to our times. Among other things, he engages some of what Rod Dreher has been arguing, in his The Benedict Option and elsewhere.
I particularly liked this:
God has written into the world “an order and a dynamism that
human beings have no right to ignore,” [Pope Francis] tells us . . . . And thus the proper
attitude for us to strive for in the face of this fact must be one of “gratitude and
gratuitousness, a recognition that the world is God’s loving gift.” It is
quite countercultural today to insist that reality and the world of meaning are not
wholly constructed by us. And nevertheless it is true that the things that most
correspond to the destiny of our lives are not the ones we “make”, and still less the
ones we “possess” or that we “consume”. Instead we have to allow ourselves to be
made by, possessed by, and consumed by a passion for truth and beauty and
Beginning again, the beginning of a new year institutionally, the beginning of
a new stage in life, the new beginning of hope in a world that has lost its way, begins
with our own hearts. If we allow ourselves to be made and possessed and consumed
there, we will witness the transformation of the very heart of the world.
Monday, October 23, 2017
This event, sponsored by the Religious Freedom Research Project at Georgetown's Berkley Center, looks to be really good. If you're in Washington, D.C. on Nov. 1 . . . check it out! (RSVP required.) Here's the blurb:
On October 31, 1517, Martin Luther published his Ninety-Five Theses urging sweeping religious reforms and catalyzing the Protestant Reformation. The Reformation unleashed an intensified focus on freedom of conscience, with dramatic social and political consequences. It fostered new notions of religious liberty as well as new frameworks for civic life. At the same time, the Reformation built upon centuries of Roman Catholic and Eastern Orthodox theologies of conscience, dignity, and freedom in ways that are not always understood.
This symposium will explore these dynamics, but also examine how Christianity per se has unleashed distinctive and powerful principles of conscience and freedom across its 2,000-year history, even in the face of what Pope Francis has called the “ecumenism of blood”—the severe religious persecution affecting numerous Christian and non-Christian communities around the world.
The line-up of speakers and presenters is really impressive, and the keynote address is by the great Robert Louis Wilken.