Wednesday, December 7, 2016
MOJ-friend Prof. Michael McConnell shared with me a brief he and some colleagues filed in the Supreme Court of the United States in what strikes me as a fascinating neutral-principles/church-autonomy/religious-questions case. The case is called Ming Tung v. China Buddhist Association and Michael's brief is available here: Download Ming Tung cert petition. Also, here's a write-up that Prof. Friedman did, at Religion Clause, a few years ago.
Dr. Moore's Erasmus Lecture is now available, in print, at First Things. I recommend it very highly. It was delivered before the presidential election but is no less timely or important for that. Here's just a taste:
A religious conservatism that sees politics as important but not ultimate is necessary even for our public policy goals. Take the issue of religious liberty. Some, in secular circles, assume that an emphasis on religious liberty is a merely defensive move. Many on the religious right think the same. One pastor told me that he’s all for religious liberty, but wishes that we could do something “more proactive” rather than “merely defensive.” Religious liberty is not a reactive, defensive move. Religious liberty reflects a positive vision of the limitations of the state and the dominant culture, one that frees religious communities to carry on their work. To think otherwise suggests a vision of power and influence in which statecraft is more important than church-craft. Statecraft is important, but good cultures and good laws, important as they are, merely put more resilient shackles on the Gerasene demoniac. The depravity of humanity can be mitigated by law, but humanity can only be renewed and transformed by something transcendent. It’s not just our religion that teaches that; our politics teaches that also, if in fact we are in any meaningful way “conservative.”
Religious liberty is a means to an end, and the end is not political. The Gospel frees consciences that cannot be coerced. The end we rightly seek is a society in which religious communities are free to serve and to persuade. If we are to be honest, the threat to this freedom comes as much from the collapse of cohesive church communities, especially in what once was the Bible Belt, as from Washington, D.C. When faith is not shaped by community, Rabbi Lord Jonathan Sacks points out, religion becomes politicized and politics become religionized. The collapse of well-defined, disciplined congregations in the South has been politically disastrous, and not merely theologically disastrous. Consider the way Latter-day Saints have approached the moral questions raised by the 2016 election in contrast to Evangelicals, even when the voting patterns were not substantially different. The difference between the two rests, I believe, in the contrast between intentional, cohesive, conscience-shaping communities of identity and social solidarity, not only in Utah but in the Mormon minority communities around the country, and Evangelical communities that are too often influenced by raging pundits, talk radio, and TV shout-shows—and these voices sometimes drown out the pastor’s. A Christianity without visible churches is backward-looking and seething with rage. Christianity loses its Gospel-centered character, Marilynne Robinson tells us, indeed any religion loses its distinctive identity, “when its self-proclaimed supporters outnumber and outshout its actual adherents.”
Tuesday, December 6, 2016
Monday, November 28, 2016
As MOJ readers probably already know, Prof. Adrian Vermeule (Harvard) recently came into full communion with the Catholic Church. Now, I'm delighted to announce that Prof. Vermeule has agreed to join our merry band of Leonine bloggers here at Mirror of Justice. Welcome aboard, Adrian!
Tuesday, November 22, 2016
They ought to know where this kind of thing leads:
Last week another big step was taken towards the mass persecution of children with Down syndrome. On November 10th, the French ‘State Counsel’ rejected an appeal made by people with Down syndrome, their families and allies to lift the ban on broadcasting the award winning “Dear Future Mom” video on French television. The ban was previously imposed by the French Broadcasting Counsel. Kids who are unjustly described as a ‘risk’ before they are born, are now wrongfully portrayed as a ‘risk’ after birth too.
The video features a number of young people from around the globe telling about their lives. Their stories reflect today’s reality of living with Down syndrome and aims to reassure women who have received a prenatal diagnosis. Their message of hope takes away the fears and questions these women may have, often based on outdated stereotypes. The video was produced in 2014 to celebrate World Down Syndrome Day. A day created by Down Syndrome International and officially recognized by the United Nations for the promotion of the human rights of people with Down syndrome.
Happy children with Down “disturb the conscience” of post-abortion women
The State Counsel said that allowing people with Down syndrome to smile was “inappropriate” because people’s expression of happiness was “likely to disturb the conscience of women who had lawfully made different personal life choices”.
Monday, November 21, 2016
Thanks to Prof. Sam Levine (Touro), I'm passing on some nice news:
The winners have been selected for the seventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. The Prize will be awarded to Leslie C. Levin, for Lawyers Going Bare and Clients Going Blind, 68 Fla. L. Rev. (forthcoming 2016), and Kate Levine, for Who Shouldn't Prosecute the Police, 101 Iowa L. Rev. 1447 (2016). The Prize will be awarded at the AALS Annual Meeting in San Francisco in January.
Sunday, November 20, 2016
Friday, November 18, 2016
Remarks on "The Future of Religious Liberty" at the Federalist Society's National Lawyers Convention
I participated yesterday in a panel discussion on "RFRA and the Future of Religious Liberty" at the Federalist Society's annual National Lawyers Convention. After noting that recent events had dramatically undermined any confidence one might have in my ability to say anything useful about "the future", I briefly discussed "one big-picture idea, two reasons for cautious optimism, and three causes for concern."
The big-picture idea (such as it is) was this: In any society where there is (a) religious and moral diversity and (b) an active, regulatory welfare state, there will -- necessarily -- be conflicts and tensions between (i) duly enacted, majority-supported, generally applicable laws and (ii) some citizens' religious beliefs and exercise. What Justice Jackson called "the uniformity of the graveyard" is not an attractive way to manage these conflicts and tensions; the toleration-and-accommodation strategy, however, is. RFRA-type laws are, in my view, effective and workable mechanisms for carrying out the latter strategy and so, yes, I think such laws are part of the "future of religious liberty."
The two "reasons for cautious optimism": First, the (unanimous) Hosanna-Tabor case shows that the Court recognizes that religious freedom is not entirely about "balancing interests" but rather imposes real limits on the government's ability -- even when its pursuing important goals like reducing employment discrimination -- to interfere with individuals' and institutions religious decisions. Second, as the (unanimous) Holt case (among many others) illustrated, outside of a few well-known, hot-button-issue topics, religious-liberty claimants are very often winning. For now.
Next, three causes for concern -- that is, three demographic, cultural, and sociological facts and trends, or three things about the culture (and "law is downstream from culture") that were true before and are still true after the election: (1) the "rise of the nones" presents the danger that fewer people will see themselves as having a "stake" in the religious-freedom issue (when, in fact, we all do); (2) the relative decline in the role and footprint of religious institutions and communities (whether because of scandals, or atomizing individualism, or something else) reduces a sense of solidarity and makes it more difficult for people to resist incursions on religious liberty when they threaten; and (3) the increasing willingness of the government to shrink the civil-society space and to expand the "public" sector, by leveraging its licensing, accrediting, spending, grant-making, taxing, contracting, and social-welfare functions -- that is, by using conditions in addition to regulations to affect non-state actors' practices.
Then followed a lively discussion!
Friday, November 11, 2016
Assisted suicide adopted in Colorado; Blaine Amendment survives in Oklahoma; the Death Penalty reinstated in Nebraska
Assisted suicide -- or, the euphemism "dignity in dying" -- was embraced overwhelmingly in Colorado. The anti-Catholic (and, in any event, foolish) Blaine Amendment was retained in Oklahoma; and Nebraska brought back capital punishment (after it had been abolished in the way, in my view, it should be, i.e., legislatively and not judicially).