Thursday, November 26, 2015
Tuesday, November 24, 2015
Thanks to Marc for posting about Anthony Trollope's The Warden, which is indeed a lovely novel. Trollope is one of my favorites, because his social criticism--which is definitely there--is tempered with a wryness and wide-ranging sympathy that often eluded Dickens. Trollope seems to trend every once in a while (I remember years ago when the series based on the Palliser political novels was big on Masterpiece Theatre). And according to Adam Gopnik recently in the New Yorker, he's trending again. Marc's post reminded me of Nathaniel Hawthorne's great assessment (which Gopnik quotes) of Trollope's novels:
“Just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business, and not suspecting that they were made a show of.”
Three cert petitions were recently filed in the U.S. Supreme Court in an important case involving school choice and religious rights in Colorado. The local school district in Douglas County adopted a neutral program of scholarships for families to use for sending their children to any private school, religious or nonreligious. But the Colorado Supreme Court held that religious schools and families must be singled out for exclusion from this program; 3 of the 4 justices in the majority relied on Colorado's Blaine Amendment, the constitutional provision that prohibits aid to "sectarian" schools. The petitions argue that the Colorado court's ruling requiring this exclusion (1) ignores the 19th-century animus and prejudice against Catholics that motivated Colorado's and other states' anti-aid provisions, and (2) independent of this historical taint, violates the First Amendment by singling out religious choices for discriminatory denial of aid. (Here is one of the petitions, the school district's, with links to petitions by the state and by intervening parents.)
There's now an amicus brief from the Christian Legal Society, the Becket Fund, and others supporting the cert petitions. We expand on the argument about the prejudice-tainted background of state Blaine Amendments. We also show why the passage of time since their enactment does not immunize them from constitutional review based on their discriminatory motivation and the discrimination they are accomplishing today.
Finally, we explain why the Court ought to take this case: (1) among other things, state judges and other officials have (wrongly) come to think they have carte blanche to exclude people choosing religious options from generally available state benefits, and (2) the federal government bears partial responsibility for these discriminatory provisions because it pressured states joining the Union in the late 1800s and early 1900s to include such provisions as a condition of admission.
The University of St. Thomas Religious Liberty Appellate Clinic, which I direct, wrote the amicus brief. Thanks to my student Dan Burns for doing a significant amount of the drafting.
Fingers crossed on this case! It's obviously always difficult to get cert; and school choice cases are hard to bring before the Supreme Court. But the historical evidence of anti-Catholic animus in Colorado is as strong as that in any state. This may be the case that gets the Court's attention on how state constitutional provisions are being used to require insupportable discrimination against religiously grounded schooling.
Tuesday, November 10, 2015
At the Notre Dame Law Review's excellent symposium Friday (thanks Rick and others!), I presented these remarks using the idea of "partly acculturated religion" as a way of understanding some of the most controversial current free-exercise cases. I then gave the same talk the next day at a Yale Law/Divinity Schools' joint conference on law, religion and politics (thanks to Prof. Patrick Weil of Yale for the invitation there). A couple of samples from the talk:
Many of today’s most vexing problems concerning the accommodation of religious conscience involve religious groups and activities that straddle the perceived boundary of the public versus private. For example, in disputes over same-sex marriage and religious liberty, it’s generally agreed that churches and clergy should be able to refuse to host or perform a marriage, because they fall within the private sphere. But religious activities that reach out to provide services to the broader public provoke much more controversy. Think of religious adoption agencies that decline to place children with same-sex couples—or evangelical anti-trafficking program that refuses to provide abortion referrals—or the religious social services that have sought exemption from the HHS contraception mandate.
To many critics, accommodation is plainly improper in such cases. They say that when a religious organization hires people outside the narrow confines of its faith, or becomes a significant social-service provider, it should not be allowed to continue to act on norms that the government has deemed unjust. Once an organization reaches out to others, it must follow all the rules no matter how much they burden religion....
My project is to argue for protection in these cases too, relying on the idea that they involve cases of “partly acculturated religion.” These faiths fall in between two poles.... They are “acculturated” in that they seek to reach out to the broader society and provide services that people of all beliefs value: education, health care, social services of all kinds. But they’re “unacculturated” in that some of their doctrines and practices sharply clash with the dominant secular values in their relevant sphere. These organizations make a claim to be able to continue to provide services and still follow their countercultural doctrines and practices, which often reflect the core values that inspire their service in the first place.
I then present two arguments why the law should make meaningful efforts to accommodate partly acculturated religious activity:
First, equality among religions—a fundamental principle of the First Amendment. Service is an essential component of much religion, of course; but more than that, it is a perfectly legitimate way of being religious for an organization to reach out to serve or employ others will still maintaining adherence to its distinctive religious standards.... [The law] should avoid forcing all organizations into two rigid categories of unacculturated or acculturated.
Second, social capital and civic virtue. Partially acculturated religious organizations tend to create a great deal of social capital and volunteer energy in service of others, and if their works shrinks or ends because of legal conflicts, it will be a loss to society. The sociological and political-science writings of Robert Putnam and David Campbell, John DiIulio, Steven Monsma, and others support this claim.
I'll be developing this into a full-length article. Comments welcome--i.e. wanted!
Friday, October 16, 2015
Here's a piece, informative but with biased snark, from the Washington Post (generally fairer on these things in its news columns) about how some congressional Democrats are joining Republicans in resisting the D.C. Council's push to end the voucher program. As a previous Post story put it:
Sen. Ron Johnson (R-Wis.) said in a statement that private school vouchers are needed because the D.C. public school system, “often cited as one of the worst in the country, is absolutely failing these children.” He was joined by Sens. Dianne Feinstein (D-Calif.), Tim Scott (R-S.C.) and Cory Booker (D-N.J.)
As usual, the political battle is being fought mostly over whether school choice is helpful to educational performance. Behind it, however, are the questions whether parents should be able to receive K-12 educational benefits even when they choose a religiously grounded education for their children--and whether participating schools should have to follow all the nondiscrimination requirements applicable to public schools.
Friday, October 9, 2015
Here. Despite the headline, the story doesn't give any evidence that she's "Pope Francis's latest convert." Here's an interesting profile on her combination of "liberal" and "conservative" views and how it gets most of her political friends mad at her. (Is it really only, as the profile says, "roughly 25 percent of U.S. voters who harbor a balance of conservative and liberal beliefs"?)
Wednesday, October 7, 2015
In my presentation on religious freedom arguments to "reach the persuadable middle," I conclude with three things to learn from Francis in this context.
First, he emphasizes (like others) that freedom for religious organizations is--not solely, but very significantly--"freedom to serve,” especially those in greatest need. As he said in Philadelphia:
[R]eligious liberty, by its nature, transcends places of worship and the private sphere of individuals and families. Our rich religious traditions [also] serve society…. They call to conversion, reconciliation, concern for the future of society, self-sacrifice in the service of the common good, and compassion for those in need. At the heart of their spiritual mission is the proclamation of the truth and dignity of the human person and human rights.
The life of the Church should always reveal clearly that God takes the initiative, that ‘he has loved first’ (1 Jn 4:19) and that he alone ‘gives the growth’ (1 Cor 3:7). This conviction enables us to maintain a spirit of joy in the midst of a task so demanding and challenging that it engages our entire life…. Instead of seeming to impose new obligations, [Christians] should appear as people who wish to share their joy, who point to a horizon of beauty and who invite others to a delicious banquet.
Tuesday, October 6, 2015
Fleming Rutledge is one of the great preachers of our time. Check out her "Generous Orthodoxy" website here--and get a hold of any (or all) of her sermon collections on Paul, or Romans, or the Old Testament, or Easter, or The Bible and the New York Times. She confounds both conservatives and liberals by preaching universal themes--original sin, amazing grace, and their social and cultural implications--that undercut all our more partial political perspectives. She was also one of the first dozen or so women ordained in the Episcopal Church.
Now she's released The Crucifixion: Understanding the Death of Jesus Christ, her "magnum opus" as The Christian Century's reviewer calls it. A bit of the review:
Don’t conservative and evangelical churches regularly preach the cross and the crucifixion? Yes, they do. But they often reduce these themes to formulaic, even mechanistic interpretations of their meaning, related only to individuals and their fate after death. Moreover, as Rutledge argues persuasively, such proclamations are often theologically incoherent, doing violence to the trinitarian nature of God and rendering the God now separated from Jesus Christ into a monster.
Perhaps partly in reaction to the predominance of such reductive and misleading interpretations of the crucifixion by conservatives and evangelicals, other parts of the church—mainline, liberal, and progressive congregations and their preachers—have had less and less that is substantive to say about the crucifixion. Pelagianism, ever knocking at the mainline door, sidesteps the cross to emphasize Jesus’ good works and his role as a moral exemplar and spiritual guide. Then proclamation tends to become telling stories about Jesus rather than preaching Christ crucified. In some mainline church settings, the crucified One is portrayed as just another innocent victim of the empire, not as the One whose death constituted God’s redemptive disruption of the world.
Protestantism has had a particular problem handling this problem of sin and redemption, reducing it either to "fire insurance" for the afterlife or confident prescriptions about social reform today. But as I see it, Catholic thinkers have to deal with the same issues.
I'm running to the store (well, to Amazon) to get Rutledge's book.
Saturday, October 3, 2015
Today I gave a presentation at the Christian Legal Society's national conference in New Orleans. The presentation is called "Getting to Purple: Religious Freedom Arguments to Reach the Persuadable Middle" (here are the power point slides). It continues with the three kinds of arguments--civil libertarian, civic republican, and pragmatic--that I've laid out earlier in an article called "Progressive Arguments for Religious Organizational Freedom." The continued goal is to try to bridge what appear to be the hardening lines between conservatives and liberals over the value of religious institutional freedom.
I conclude the presentation with some lessons to draw from Pope Francis, who is a great model for both Catholics and others seeking to defend the freedom of religious institutions to serve others in a joyful and sacrificial spirit. I'll blog about that separately.
And for a lagniappe (Creole for "bonus or extra gift"), here is a picture from New Orleans with church-state associations. It's a jazz band at a wedding that had just finished in the church at the old Ursuline convent. You might remember that when the Ursulines nuns feared that their school for orphan girls would become subject to disruptive American regulation after the Louisiana Purchase, they wrote President Jefferson, who responded that
the principles of the Constitution [a]re a sure guaranty to you that [your property] will be preserved to you sacred and inviolate, and that your Institution will be permitted to govern itself according to its own voluntary rules without interference from the civil authority.
(Rick, Carl Esbeck, Kim Colby, and I discuss Jefferson's letter to the Ursulines in our overview of historical sources of church autonomy, here, at p. 182.)