Monday, August 21, 2017
The current issue of Communio is about "The City," and my friend and colleague Philip Bess, with whose work MOJ readers are likely familiar, has a nice essay called "City Stories of Nature and Grace: An Urban Pilgrim's Progress." Here's a quick description:
The Winter 2016 issue of Communio explores “The City.” Modern urban life challenges us to examine the principles according to which cities either foster or hinder the human person and community in their relation to God.
Philip Bess reflects on good urban order in “City Stories of Nature and Grace: An Urban Pilgrim’s Progress.” A city’s architecture and objective pattern educates its inhabitants, whether poorly or well, in their role as “intermediaries” between the sacred and mundane. “Cities (like families) point beyond themselves to transcendent truths and realities of which their denizens may be but dimly aware, if at all.” In tracing the emergence and features of contemporary cities, Bess shows how a well-structured city is centered on the thriving of local neighborhoods and, by its very form, reflects the sacramental cosmos in which it is embedded.
Here is a link to Bess's piece ( Download Bess City Stories).
Wednesday, August 16, 2017
Here (Download Sugarman on Faith-Based Charter Schools), and forthcoming in the Journal of Law and Religion, is Prof. Stephen Sugarman -- a longtime education-law and education-reform expert -- on whether the Constitution permits the exclusion of faith-based schools from charter-school programs. The abstract:
This article argues that it is unconstitutional for state charter school programs to preclude
faith-based schools from obtaining charters. The rst section describes the “school choice”
movement of the past fty years, situating charter schools in that movement. The current
state of play of school choice is documented and the roles of charter schools, private schools
(primarily faith-based schools), and public school choice options are elaborated. The second
section argues that based on the current state of the law it should not be unconstitutional,
under the First Amendment’s Establishment Clause, for states to elect to make faith-based
schools eligible for charters, and, therefore, the current practice of formal discrimination on
the basis of religion against families and school founders who want faith-based charter
schools should be deemed unconstitutional by the US Supreme Court. Put differently, this
is not the sort of issue in which the “play in the joints” between the Free Exercise and
Establishment Clauses should apply so as to give states the option of restricting charter
schools to secular schools.
A few days back, I noted a welcome decision by the Court of Appeals for the Second Circuit in a ministerial-exception case. I didn't mention in that post the fact that, along the way, the lawyer for the employee had repeatedly made anti-ministerial-exception arguments that were so overheated (and, frankly, anti-Catholic) I felt sorry for the judges and law clerks who had to work, I'm sure, to find actual arguments to engage. Well, if you want an example of (a) how not to write legal arguments and (b) the unhinged nature of some of the opposition to religious freedom for institutions, see this petition for rehearing. Here's a taste:
The Panel’s opinion, left uncorrected, will be remembered as the Dred
Scott10 of religious liberty cases. Like Dred Scott, it will be correctly seen as the
judiciary ignoring the rights of an individual for the sake of powerful interests,
there slave owners and here, the Roman Catholic Church and Christian Right. And
just as Southern law eventually deemed someone with a tiny fraction of African
blood as a “Negro” whose rights could be diminished, the Panel’s decision will
allow greater and greater expansion of who a “minister” is, so that eventually a
huge percentage of Church-affiliated or “religious” employees will be deemed
ministers by the courts (even if not by their Churches), and virtually all employers
immune from civil law.
In the Roman Catholic elementary and high schools alone, both teachers31
and principals will be faced with both the actual or the threatened loss of their civil
rights and their own First Amendment freedom. This may include around 100,000
parochial school teachers and principals, and because these educators educationally
and physical supervise their wards, the Panel’s ruling also imperils the over 2.3
million parochial school children who are educated today in these schools. Then
double that number for all non-Catholic school, and then add all other Churchaffiliated
workers, and we have a huge number of Americans who will soon
discover that the federal courts, let by the Second Circuit, have taken away their
civil rights on the altar of Organized Religion.
And . . .
The undersigned humbly requests that the Court seriously and thoughtfully
consider this Petition. This is a tremendously important case. In the big picture, it
is more important than a death penalty case or a billion dollar antitrust case,
because what is at stake is our democracy.
Saturday, August 12, 2017
This paper, by Joshua Craddock (Harvard Law School), is worth a read. Here's the abstract:
In recent years, religious objectors in high-profile religious liberty cases such as Burwell v. Hobby Lobby and Zubik v. Burwell have claimed that government policy would force them to become complicit in the moral wrongdoing of third parties. In their article Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516 (2015), Professors Douglas NeJaime and Reva Siegel argue that these complicity-based religious liberty claims should be disfavored. According to their theory, complicity-based claims differ from other religious liberty claims in both "form" and "social logic" because they impose "material" and "dignitary harms" on third parties.
This article argues that NeJaime and Siegel's third party harm theory is fundamentally flawed, and that complicity-based religious accommodations are both a traditional and necessary part of the American legal framework. Part I examines past Supreme Court precedent in the area of free exercise and finds significant support for complicity-based accommodations. Part II reevaluates the magnitude and legitimacy of the asserted third party harms, then weighs the inconveniences imposed on third parties against the injuries to religious claimants should accommodations be weakened or withdrawn. Part III contends that culture war conflicts will not be resolved through the elimination of religious accommodations in the complicity context, and proposes a subsidiarity-based alternative to imposing coercive legal penalties on religious objectors.
Wednesday, August 2, 2017
I have a short comment up at Commonweal on the Supreme Court's recent decision in the Trinity Lutheran case. A bit:
. . . All things considered, the justices in the majority had the better of the argument. It is certainly true, as Justice Sotomayor emphasized, that the separation—that is, the differentiation—between religious and political authority safeguards religious and political freedom. Yet this separation is not so strict as to require the blanket exclusion of churches from generally available and entirely secular public benefits, or to rule out cooperation between governments and religious institutions in advancing safety, education, health, and social welfare. Some observers, such as the incoming dean of Berkeley Law, Erwin Chemerinsky, complained that “the noble and essential idea of a wall separating church and state is left in disarray, if not shambles,” but this overreaction reflects a misunderstanding of the idea. Our Constitution wisely protects religious liberty by preventing official interference with strictly religious affairs. It would be unconstitutional for Missouri to pick Trinity Lutheran’s hymns or ordain its pastor, but it is well within our tradition to allow the church, like anyone else, to apply for help with playground safety. . . .
Monday, July 31, 2017
Here. Katherine Stewart (author of "The Good News Club: The Christian Right's Stealth Assault [RG: !] on Our [RG: !] Children") digs in and reveals that the use of the term "government schools" by education-reform advocates gives away their genealogical and moral connections to segregationism and Rushdoony-style theocratic yearnings. Or something. She, and anyone who reads her screed, should read, e.g., Charles Glenn's "Myth of the Common School" (link) and Joseph Viteritti's "Choosing Equality" (link). Not to mention John McGreevy and Philip Hamburger.
Friday, July 28, 2017
Check out this volume, edited by MOJ-friends Zachary Calo and Bob Cochran, "Agape, Justice, and Law: How Might Christian Love Shape Law?", from Cambridge University Press. Here is the book description:
In a provocative essay, philosopher Jeffrie Murphy asks: 'what would law be like if we organized it around the value of Christian love, and if we thought about and criticized law in terms of that value?'. This book brings together leading scholars from a variety of disciplines to address that question. Scholars have given surprisingly little attention to assessing how the central Christian ethical category of love - agape - might impact the way we understand law. This book aims to fill that gap by investigating the relationship between agape and law in Scripture, theology, and jurisprudence, as well as applying these insights to contemporary debates in criminal law, tort law, elder law, immigration law, corporate law, intellectual property, and international relations. At a time when the discourse between Christian and other world views is more likely to be filled with hate than love, the implications of agape for law are crucial.
The list of contributors is impressive, and includes our own Michael Moreland and Tom Berg.
Wednesday, July 19, 2017
This is self-recommending: Russell Hittinger on the "Three Necessary Societies." A bit:
Leo issued no Syllabus of Errors. Instead, he asked a question that was at once more philosophical and more practical: How do we civilize this situation? What is our proposal for social order? What can we work with in social matters, and how do we measure what’s been lost and what might be regained? He remarked: “Nothing is more useful than to look upon the world as it really is.” The paradigm of Catholic social teaching formulated by Leo resisted the temptation to utopianism, so seldom resisted elsewhere in the nineteenth and twentieth centuries. The Leonine paradigm for social analysis was simple and sturdy. It was a neo-Aristotelean effort to put the “spirits” of the age into perennial wineskins.
This First Things essay by Samuel Moyn -- "Restraining Populism" -- will be of interest to many MOJ readers and touches on questions that have come up often here at MOJ. A bit:
It was in this context that de Valera settled upon human dignity as a foundational principle, one that preserved the essential element of liberal social norms, which is to protect the human person from being absorbed by—and abused by—the power of the state.
In effect, de Valera was implementing into Irish law the broader shift in Catholic thinking. Although initially hopeful about the possibilities of cooperation with fascism, Pope Pius XI came to see the exaggerated power of the state, whether motivated by communism or fascism, as a threat. In his broadside against Nazi pressure on the Catholic Church in the late 1930s, Mit Brennender Sorge, Pius XI denounced actions that violate “every human right and dignity.”
The Court of Appeals for the Second Circuit has handed down its opinion in the Fratello case, which involved a sex-discrimination and retaliation lawsuit filed by the former principal of a Catholic school. The Court (correctly) concluded that her claims were barred, given the Supreme Court's Hosanna-Tabor decision. "Although her formal title was not inherently religious, the record reflects that, as part of her job responsibilities, she held herself out as a spiritual leader of the school and performed many religious functions to advance its religious mission." (Along with our own Tom Berg and several other religious-freedom scholars, I filed an amicus brief in support of the school.) The happy warriors at The Becket Fund have a detailed page on the case, here.
I should confess to being just a bit disappointed -- perhaps it's just wounded and unwarranted pride -- by a footnote in the opinion. Discussing the basis for the ministerial exception, the Court said this:
Any autonomy that religious groups have over their internal affairs is premised on the ʺvoluntaryʺ decisions of individuals to engage in ʺreligious activity.ʺ Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1403 (1981) (noting that ʺ[t]he [Supreme] Court has repeatedly stated that all who join a church do so with the implied consent to [the churchʹs] government, to which they are bound to submitʺ (internal quotation marks omitted)). Indeed, ʺwhat might be called institutional or church autonomy is ultimately derived from individual rights.ʺ Richard Schragger & Micah Schwartzman, Against Religious Institutionalism, 99 VA. L. REV. 917, 920 (2013); see also id. at 957‐59 (noting that the conception of a ʺchurch as a voluntary associationʺ of individual conscience can be traced to the philosopher John Locke (citing John Locke, A LETTER CONCERNING TOLERATION 28 (James H. Tully ed., 1983) (1629))); Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346, 378 (2002) (ʺBy the late eighteenth century, some version of Lockeʹs basic view of the nature of liberty of conscience had been formally embraced by nearly every politically active American writing on the subject of religion and the state.ʺ).
Although I like and admire Profs. Schragger and Schwartzman, I'm inclined to be for "religious institutionalism" and have a different view about the nature and origins of religious groups' "autonomy." See, e.g., this and this. Sigh. Not even a "But see ..." cite. All is vanity . . .