March 01, 2014
"Bigotry" v. "Sincerely held religious belief"
In the course of the conversations, debates, arguments, etc., about the recently vetoed Arizona RFRA proposal specifically, and exemptions from antidiscrimination laws generally, the questions are sometimes posed (a) whether a particular action reflects or is motivated by "bigotry" or by "sincerely held religious belief" and (b) whether there's really a clear line between the two.
We could say, I suppose that "bigotry" is just the word we attach to motivating premises and beliefs that seem particularly offensive or insufficiently rational or connected with reality. If we say this, then the line separating "bigotry" from "sincerely held religious belief" is not clear at all. Or, we could simply declare that an otherwise "bigoted" (under definition) action will *not* be labelled as "bigoted" if it reflects a certain kind of insufficiently rational belief, i.e., "sincerely held religious belief." But, this would simply be a declaration, an ipse dixit of sorts.
I'm not sure we should invest too much time or energy in trying to distinguish sharply -- for purposes of the typical liberal political community's antidiscrimination laws -- between conduct that is motivated by "sincerely held religious belief" and conduct that is motivated by "bigotry." It seems to me a better approach might be to start with this question: "When, if ever, should we accommodate or tolerate conduct that (i) the political community has decided, for reasons that it thinks sufficient and appropriate, to prohibit and (ii) is motivated by sincerely held religious belief?"
Of course, we could say "never", but I don't think we should (because we are committed, for now, to some form of religious liberty. We could say, "we should accommodate, unless the conduct is motivated by 'bigotry.'" Instead, maybe we should just say "we should tolerate or accommodate otherwise prohibited conduct that is motivated by sincerely held religious belief if it is possible to do so reasonably efficiently and without undermining the policies or values that underlie the prohibition or regulation." The "without undermining" inquiry is hardly cut-and-dried, but I think it could be done without trying to cull through "religious" motivations and separate them from "bigoted" ones. Thoughts?
Paul Caron on faculty scholarship at faith-based law schools
This presentation and paper, by uber-law-blogger Prof. Paul Caron (Pepperdine) looks really interesting: Faculty Scholarship at Faith-Based Law Schools: Long Tails, Moneyball and Rankings in a Time of Crisis. Quoting Paul: "I argue that religious law schools are uniquely positioned to thrive in the midst of the law school crisis because our faith-fueled commitment to our students and to each other empowers us to better define the pathways to success for our schools, our students, and our faculties and equips us to make that journey together."
February 28, 2014
SCOTUSblog symposium piece on the Hobby Lobby case
My contribution (and it's just one of a bunch) to the SCOTUSblog symposium on the upcoming Hobby Lobby case is here. Here's a bit:
The Religious Freedom Restoration Act does not reflect a mistaken or naïve view that religiously motivated conduct is always praiseworthy or that religious actors always prioritize the common good. Sometimes, generally applicable laws need to remain generally applicable. Sometimes, fair and practicable accommodations are not possible. Sometimes, parties invoking RFRA will and should lose. But, sometimes they should win – whether they are institutions or individuals and whether they are engaged in worship, social service, or art-supplies sales. The Act says, for all of us, that religious freedom matters, that it matters to policy winners and losers alike, and that if we can accommodate religious believers’ practices and objections, then we should.
February 27, 2014
The veto, coverage, and misrepresentation of AZ 1062
Gov. Brewer has vetoed what the Wall Street Journal calls a "service refusal" bill (an earlier WSJ headline had said "religious liberty"; the New York Daily News refers to it as a "controversial anti-gay" bill). In my view -- and, frankly, whatever the ultimate merits of the bill (which would have modified the state's RFRA-type bill, which is modeled on the federal RFRA, which was strongly supported by Sen. Kennedy and signed into law by Pres. Clinton) -- it is depressing to note the extent to which the proposal was mischaracterized and misrepresented, in many cases by commentators who should have known, and I suspect did know, better.
Here is a letter, authored by Prof. Douglas Laycock and signed by a number of other law-and-religion scholars (including Tom Berg, Doug Sisk, and me), which explains what the law would have, and would not have, done. As the letter points out, the bill would have "amend[ed] the Arizona RFRA to address two ambiguities that have been the subject of litigation under other RFRAs." Later:
SB1062 does not say that businesses can discriminate for religious
reasons. It says that business people can assert a claim or defense under RFRA, in any kind
of case (discrimination cases are not even mentioned, although they would be included),
that they have the burden of proving a substantial burden on a sincere religious practice,
that the government or the person suing them has the burden of proof on compelling
government interest, and that the state courts in Arizona make the final decision.
Again, the bill has been vetoed, no doubt in response to the outcry -- itself driven largely by the mischaracterizations of the bill -- from business groups (and the N.F.L.). The debate about religious accommodations is changing strikingly.
February 21, 2014
"Our Secular Future"
Rusty Reno has a thoughtful, and bracing, piece up at America, called "Our Secular Future." Check it out. A taste:
Americans are rightly proud of our tradition of religious liberty. The founders recognized that religious convictions cut very deeply into the soul, making people capable of great sacrifices—and often stimulating bitter conflicts and terrible persecutions. Thus we have the First Amendment and its definition of the first freedom: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
We need to recognize, however, that our approach to religious freedom has in fact changed a great deal in the more than 200 years of national history. These changes reflect shifts in the overarching religious consensus in the United States. By my reading of the signs of the times, this consensus is changing yet again. The shift foretells a renegotiation and redefinition of the nature and scope of religious liberty—one that I fear will not favor religious believers . . .
February 19, 2014
Jewish and Catholic Approaches to Property and Social Justice
And, here is *another* great-looking event, courtesy of the folks at the Lumen Christi Institute.
Jewish and Catholic Approaches to Property & Social Justice
Hosted by Jenner & Block
Cosponsored by The Advocates Society, The Catholic Lawyers Guild, The Decalogue Society of Lawyers, The Jewish Judges Association of Illinois, and the National Center for the Laity
Free and open to the public. CLE Ethics Credit Pending.
Both Jewish and Catholic traditions teach that each human being is obliged to attend to the needs of the vulnerable and use property for the common good. The obligation to the vulnerable attaches to each person; it even is imposed on the poor oddly enough who are obligated to give something to others (even if what they do is exchange with each other) because the experience of giving to help others is part of what is crucial to human life and something the poor should not be deprived of. The traditional language also understands this to be a commandment from God, which really means part of the structure of the world.
Additionally, both rights and obligations flow from possessing property according to both Catholic and Jewish social justice teaching. The obligation to provide for the poor also forms a core social obligation attaching to the possession of property. From this obligation may arise certain entitlements–these entitlements are a subject of much controversy in our country today. However, there can be no dispute that both religious traditions espouse the subordination of private property to the common good. This discussion will examine the legal, religious, and philosophical grounding for this common belief and consider the legal and political implications that follow.
Some thoughts on the mission of a Catholic law school
I have a short essay, in the current issue of the Irish Rover (an alternative student-run paper at the University of Notre Dame) called "What is the Mission of the Catholic Law School?" Here's a bit:
. . . As we see it, a Catholic law school—like Notre Dame—is able to be a better law school, and to better form conscientious professionals and leaders, precisely because it is Catholic. It is well known that law and lawyering receive a good deal of criticism these days, and much of it is well deserved. Too often, law is seen as a “bag of tricks” to be manipulated by the powerful for their own ends; too often, lawyers are content to regard themselves as “hired guns” or as mere technicians; too often, the formulation of legal rules and policies seems driven simply by partisanship rather than wise and prudent consideration of real-world facts and the needs of the community.
At a Catholic law school, though—and at Notre Dame—we can take comfort, and find inspiration, in the fact that our tradition has taught for centuries that law is an “ordinance of reason” and that its aim is the “common good.” Our faith provides a vision of what law, done rightly, is supposed to be, and really can be. It is not an exaggeration to say that the study and practice of law is elevated, for us, because we know that our human efforts to develop and implement just and efficient laws are reflections of—they participate in—the very mind of God. . . .
. . . At Notre Dame Law School, three words, or themes, come up again and again in our conversations about how we should do what we do, how we can strengthen and enrich this university and about what makes us different from the many other fine law schools. Those words are community, integration and vocation. . . .
The Human Person, Economics & Catholic Social Thought
This upcoming event at the Lumen Christi Institute at the University of Chicago looks really good -- if you are in or near Chicago, check it out (and report back!):
“The Human Person, Economics, & Catholic Social Thought”
a panel discussion with
Gary Becker (University of Chicago)
Francis Cardinal George, O.M.I. (Archbishop of Chicago)
Mary Hirschfeld (Villanova University)
F. Russell Hittinger (University of Tulsa)
Rachel Kranton (Duke University)
February 12, 2014
Witherspoon Institute Church-State Seminar
This summer the Witherspoon Institute's Simon Center on Religion and the Constitution will offer its third biennial Church and State Seminar, July 28 to August 1, at the Princeton Theological Seminary. This five-day seminar will examine the relationship between religion and politics in the period of the American Revolution, founding, and early republic. The seminar is open to untenured faculty and post-doctoral scholars in history, political theory, law, and religion--and the Institute will consider doctoral candidates at work on their dissertations as well. Please pass the word to your eligible junior colleagues, friends, and students!
The seminar will explore primary sources at the intersection of church and state—charters, constitutions, and legal texts, as well as sermons, pamphlets, essays, speeches, debates, and religious texts. Topics will range from the colonial era and the First Great Awakening, through the revolution, constitution-making, and founding debates over religious liberty, to the dawn of the Second Great Awakening, with a view of politics from a religious perspective, and a view of religion from a political perspective. From Edwards to Emmons, from Mather to Madison, from Whitefield to Washington, major figures of this pivotal era in American religious and political history will be considered in their own historical settings. The seminar faculty will be leading scholars of American history, law and politics, and theology.
Daniel L. Dreisbach, American University
Thomas S. Kidd, Baylor University
Gerald R. McDermott, Roanoke College
Applications will be accepted through March 15, 2014. For more information, please see: http://winst.org/centers/corac/seminars/church-and-state/
More on hiring and firing Catholic school teachers
Over at dotCommonweal, Cathy Kaveny has a post up about the recent case out of Montana in which an unmarried teacher was fired from her teaching position at a Catholic school after she became pregnant. As I said in an earlier post about the much-commented-upon situation in Seattle -- where an administrator at a Catholic high school was fired after he entered into a legally recognized same-sex marriage -- these are hard cases. (Not legally hard, in my view: I think that Catholic schools do and should have the legal right to hire and fire in accord with their understanding of their Catholic mission. Still, they are hard.)
I agree with Cathy that part of the reason these cases are hard is that we all know that teachers and administrators at Catholic schools -- like all of us -- are imperfect sinners, and we all know that Catholic schools do not refuse to hire, or fire, people because they are imperfect sinners. We do not investigate teachers' private lives to be sure they are loving, charitable, generous, and joyful. When people see Catholic school teachers being fired for things having to do with sex and sexuality, it can reinforce the (false) notion that all the Church cares about is sexual morality and that sexual sins are the most grave and mission-undermining.
I also agree with Cathy that the decision to fire a teacher or administrator in a case like the one she discusses should not be framed as punishment for the teacher's having done wrong. Again, we all do wrong, and all teachers and Catholic administrators do wrong, and so if the firing is "punishment", it looks pretty arbitrary and selective. It should not be, as Cathy says, a matter of expelling the teacher from the Catholic community, because that's not how the Catholic community works.
And yet, I think that a Catholic school has to think about the ability of a teacher to effectively and constructively participate in the school's mission of integrated formation in the faith. It seems that (say) a teacher who (publicly) professed his or her Bill Maher-esque contempt for theism would have a hard time doing this, as would a teacher who (publicly) advocated for (say) euthanizing severely disabled infants. What about an unmarried teacher who gets pregnant? It seems to me that a lot would depend on what the school, and the teacher, "said" to the students and school community about a decision to fire, or retain, her. Would the message be "this is no big deal"? Would it be "our Catholic school believes that sexual activity is for marriage, and the teacher did the wrong thing, but she will continue teaching here anyway because, after all, we all do wrong things sometimes -- but don't follow her exampe"? (Would it matter whether or that the teacher publicly identified what she had done as a mistake, as wrong?) Something else? Again . . . difficult cases.