Mirror of Justice

Webinar: Religious Liberty: How Safe Is Religious Freedom in America?

Religious liberty is central to the Great American Experiment—established by the Founding Fathers and defended robustly to this very day. That said, how sure can we be that religious freedom is safe in America in 2022? How confident can we be that declining worship by Americans doesn’t weaken it, or that legislative actions won’t chip away at it?

These pressing questions should provoke careful consideration and robust discussion. After all, in Tocqueville’s assessment of this land, free worship is key to what makes America exceptional.

As someone who cares about America’s long history of religious freedom, you’re doubtless hungry for good news. That might just be waiting for you in this webinar. Listen in as three experts in the defense of religious liberty discuss a wide range of questions and concerns, including what the preeminent influences are on religious freedom in America—and whether this central freedom might be strong, and getting stronger.

SPEAKERS

Jack Fowler, senior fellow at the Center for Civil Society, will moderate the discussion with two people who have served on the front lines in the fight for religious liberty, and are eager to share their insights.

Montse Alvarado, COO at the Becket Fund for Religious Liberty, who has led initiatives at Becket that have helped secure religious liberty victories on the front lines of the culture wars;

Francesca Genova Matozzo, Religious Liberty Initiative legal fellow at the University of Notre Dame Law School, formal trial attorney for the U.S. Department of Justice, Civil Division, and author of multiple influential articles on comparative religious liberty; and

Ryan Tucker, senior counsel and director of the Center for Christian Ministries with Alliance Defending Freedom, He oversees all litigation efforts to maintain and defend the constitutionally protected freedom of churches, Christian ministries, and religious schools to exercise their rights under the First Amendment.

Register here: https://www.americanphilanthropic.com/event/religious-liberty-how-safe-is-religious-freedom-in-america/

 

Smith on the case for and against regulation of hate speech in liberal regimes

Here is the last of our summer conference pieces on "Liberalism's Limits," this one by Professor Steven Smith. Steve's reflections on the shifting role of individual identity in liberal polities suggest that while there has always been a strong case against regulating hate speech in such regimes, there is now a strong case for it. A bit:

In a different way, though, liberalism may strengthen the case for regulating hate speech. To see how, let us notice the importance of something that is typically taken for granted but that modernity and liberalism, in particular, can render fragile–namely, personal identity.

Think of it this way: public policy decisions are typically debated by reference to people’s “interests”–in health, prosperity, etc. But “interests” presuppose persons who are the bearers of those interests: no persons, no interests. And to be a person, one must be biologically alive and possessed of the DNA of homo sapiens, of course, but one must also have an identity: otherwise, we would be only a blob of tissue and psychic activity, not a person. Hence, a threat to persons’ identity is more fundamental than a threat merely to their “interests.”

In most situations, identity may seem to be simply given. But identity can become problematic. Individuals may become perplexed and paralyzed by the question: “Who am I?” And such identity crises can proliferate to become a societal problem. Indeed, “the question Who am I? is now one of the most fraught of our time,” Mary Eberstadt reports.

Moreover, liberalism seems to aggravate this problem, in at least two interconnected ways. First, liberalism can subvert the grounds or sources of identity. Simplifying, we can say that in most times and places in Western history, people’s identity has typically been grounded in two main sources: their religion, and their family or social relations. You were James, Roman Catholic, son of Geoffrey and Alice–or Bonnie, Protestant, daughter of William and Anne. But the liberal project has been, if not exactly to undermine church and social structures, at least to liberate the sovereign individual from dependency on these institutions so that she can “be herself,” or “be who she really is.”

That is because a core commitment of liberalism is to the individual as the locus of “dignity” and meaning, and hence to individual autonomy as the central normative value. This individualist commitment pervades liberalism–in its conception of liberty and rights, in its emphasis on equality (equality of individuals), and in its commitment to authenticity and the individual conscience. And on these individualistic assumptions, it is demeaning to suggest that someone’s identity depends on a relation to a church or parent or spouse. You are “your own person,” not just someone’s son or daughter or spouse.

But if a person can no longer define who he is by reference to church or family or social position, how is he supposed to understand his identity?...

In these ways, liberalism contributes to the fragility of personal identity that is widely perceived in the Western world. The desperate quest for and obsession with identity–with questions of Who am I really? and How can I be who I really am?–is discernible in various contemporary phenomena: in the proliferating tribalism and identity politics, in the transgender movement, in the effort by millions of people to discover their biological parents or ancestors...

In this context, the question of hate speech takes on a different character. It may now seem misguided and insensitive to describe the injury caused by hate speech as mere “hurt feelings.” Something more basic may seem to be at stake. Thus, suppose that having been freed from the traditional dependence on church or family as the moorings for my identity, I have come to answer the Who am I? question by reference to my race, or my sex, or my sexual orientation. I am standardly classified–and so I come to conceive of myself, perhaps–as a “heterosexual white male.” Now, if someone seems to be denigrating my race, or my sex, or my sexual orientation, they are not merely injuring my interests or hurting my feelings. Rather they are attacking the very bases of my identity.

True, the utterer of hate speech may not inflict any bodily injury on me. And yet, in undermining my identity, he is nonetheless threatening me–is threatening my very existence as the person I am–just as surely as if he were physically assaulting me. Or at least so I might perceive the matter, and so many people today seemingly do perceive the matter.

In this respect, by undermining the bases of identity, a liberal society may be indirectly creating a case for regulation of hate speech that is more urgent than would be true in a non-liberal society in which the traditional bases of identity remain intact and unthreatened, so that the injury caused by hate speech could be passed off as mere offense.

Barclay on Religious Exemptions and Democratic Self-Governance

Here is Professor Stephanie Barclay's interesting essay on a few issues concerning judicially mandated religious exemptions, for our conference on "Liberalism's Limits." And here is something from the conclusion of Stephanie's piece to give readers a sense of her claims:

Let us next consider religious exemptions offered by judicial bodies in counter-majoritarian ways—meaning judicial actions that might decline to apply duly enacted democratic laws to religious objectors. Can that sort of action ever be consistent with the consent proposition, and with a self-governing free people?...

It turns out that counter-majoritarian judicial actions can manifest in a variety of ways, and some are more consistent with self-governance than others...

The third category through which the judiciary can provide religious exemptions is essentially an evidentiary one. This role rests on the premise that, at the very least, the government may not interfere with religious exercise simply because it views that societal good as unimportant. This type of devaluing of religion can manifest as bemused indifference at best and as open hostility at worst. When a religious objector is thus seeking a religious exemption from a specific application of the law, the judiciary would ensure that the government has demonstrated (with evidence and not mere say so) a need to interfere with religious exercise. Doctrinally, this could operate as a rebuttable presumption of an entitlement to a religious exemption that the government can rebut by doing essentially two things. The government must first show that it does, in fact, have a policy objective other than devaluing religion, and second, that interfering with the voluntary religious exercise is necessary to advance that policy objective.

In many respects, this is how modern strict scrutiny is now applied by the U.S. Supreme Court. To be sure, strict scrutiny speaks in terms of “compelling government interest.” But the judiciary rarely decides cases by weighing the importance of the government interest compared to the importance of the relevant religious exercise. Instead, courts often assume without deciding that the government’s stated objective is compelling. Courts then turn to analyzing whether the stated interest is, in fact, the real interest that motivated the government, and whether the government has demonstrated that it cannot advance that interest without interfering with religious exercise...

When it comes to deciding whether the government actually needed to interfere with the religious exercise to advance its interest, the court often looks to whether the government is being even-handed in the enforcement of its stated policy interest. For example, the U.S. Supreme Court ruled in Roman Catholic Diocese of Brooklyn v. Cuomo that New York’s new and heightened COVID-19 restrictions were not justified in overriding requests for religious exemptions. In so ruling, the Court emphasized that New York had not acted in an even-handed way because the new regulations “single[d] out houses of worship for especially harsh treatment.”[20] In a concurring opinion, Justice Neil Gorsuch stressed that “there is no world in which the U.S. Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”[21]

Later news reports give some credence to the Supreme Court’s skepticism of New York’s evidentiary claims that its policy was necessary to advance health and safety objectives. A February 2021 article in the New York Times indicated that Governor Cuomo’s heightened COVID-19 orders for many houses of worship were not designated by public health officials, but were instead driven by political considerations and implemented by the Governor’s staff. The article reported, “[S]tate health officials said they often found out about major changes in pandemic policy only after [Governor] Cuomo announced them at news conferences—and then asked them to match their health guidance to the announcements.”  Indeed, “the State Health Department was not deeply involved in final decisions” regarding the policy implementing heightened COVID-19 restrictions.[22]

When the government is not being even-handed, it suggests that the government either has other ways of accomplishing its goal without interfering with religious exercise, and/or that the government is devaluing religion relative to other social goods that it is willing to protect even when such goods undermine the government’s stated interest.

This broader, evidentiary-based role for the judiciary is only one of multiple tools that pertain when it comes to the legitimate scope of judicially-provided religious exemptions. But it is one that provides for thicker protection of this right, and thus greater amounts of liberty, while still remaining consistent with a consent-based model of self-government where the judiciary is simply applying democratically elected policies about the relative importance of religion and not making that determination itself. Critics of strict scrutiny or proportionality should perhaps consider whether an evidentiary-focused rather than balancing-focused method of providing religious exemptions warrants support rather than criticisms if ensuring robust religious liberty protections within a self-governing legal regime is the goal.

An Inaccurate and Partisan Attack on Dobbs in the Commonweal Symposium

Commonweal is running, in its new issue, a symposium called "Abortion After Dobbs."  One of the contributions, "Good Samaritans," is by my Notre Dame colleague, Meghan Sullivan.  Unlike Meghan, I don't think the Judith Jarvis Thomson violinist hypothetical helps Catholics -- or others -- think clearly about abortion regulation, because it does not take account of unchosen, but still real, moral obligations between persons. Still, check it out.

Another of the pieces, "The High Price of Dobbs", by  George Scialabba, is, well, really bad, and I'm surprised that Commonweal included it. As one friend put it, it reads like a mad-lib assembled from the Twitter feeds of Sheldon Whitehouse and Larry Tribe.  To be sure, the author's priors are clearly set out at the outset: "the fetus—sans thoughts, sans emotions, sans experiences, sans everything—[does not] have any rights that override those of the woman of whose body it is merely an infinitesimal part during the time when more than 90 percent of abortions currently take place." This is both biologically and morally wrong, but . . . there it is.  After some more ipse dixits, the author moves to what he thinks is an analysis of the Supreme Court's current (polls tells us) unpopularity.  He says this unpopularity is not surprising, because "[f]ive of the six conservative justices were appointed by presidents who had not won the popular vote."  So, (a) the popular vote is legally irrelevant; (b) Justices Breyer and Ginsburg were nominated by a president who did not win the popular vote (but one feels confident the author does not hold that against them); (c) Justice Scalia was nominated by a president who won one of the biggest landslides ever (but one feels confident the author does not credit the late justice with that); and (d) in fact, Justices Thomas, Alito, and Roberts were nominated by presidents who won the (again, legally irrelevant) popular vote.

The author then moves to some criticisms of partisan districting, and ignores the fact that both parties -- when they can, where they can, to the extent they can -- use districting to their own advantage.  Of course it is true that, in some states, Republicans have a higher percentage of legislative seats than they have registered voters.  The same is true, for Democrats, in some other states.  Demography, sorting, and migration are what they are.  And, in any event, none of this is relevant to the composition (or voting and reasoning) of the Court.  It is also a bit much to harangue about anti-majoritarianism in the context of denouncing a judicial opinion that . . . returned a question (which the Court had implausibly removed from majoritarian resolution) to democratic decisionmaking.

Walsh on Juridical Post-Liberalism and Ius

Here is a third contribution, from our Kevin Walsh, to the conference on "Liberalism's Limits." Kevin's essay concerns some distinctions between ius and lex in shaping how we might come to understand various legal claims. A bit:

Religious exemptions and hate speech sometimes run into each other in culture-war disputes arising out of the sexual revolution. The point of contact is dignitary harm. Examples of such disputes include those over goods or services for same-sex weddings, pronoun usage in classrooms, and access to bathrooms based on one’s gender identity rather than biological sex. In these settings, the harms alleged are a mixture of material and dignitary. A material harm is something like the inability to access goods or services or facilities, or a loss of money. A dignitary harm is a feeling of moral stigma or inferiority or exclusion.

Whatever the setting in which a claim of dignitary harm is advanced, the principal moves along the lines suggested above are to:

(1) reject subjective conceptions of dignitary harm, insisting instead on traditional adjacent conceptions that are more objective in nature, such as the right not to be reputationally harmed by false statements of fact, or the right not to be subjected to “extreme and outrageous conduct” that causes emotional distress; and

(2) focus on the precise thing that is being sought, such as the particular flower arrangement, the particular cake, the particular collection of photos and videos, or the particular pronoun or name to use or not to use.

These two moves just set the stage for a legal analysis that attends to the particular features of a jurisdiction’s on-point law.

Within the United States, these moves can be doctrinally supported through well-established principles both of tort law and of First Amendment freedom of speech law. Within the area of religious exemptions more specifically, some scholars have attempted to include dignitary harm among the third-party harms that (they say) should count against granting a religious exemption from anti-discrimination laws. Turning judicial focus away from subjective claims of right and toward particular conduct and speech that would be forced or forbidden helps to highlight the poor fit of dignitary harm claims with more deeply rooted aspects of American law.

Pojanowski, "Authenticity and Free Speech"

A second contribution from the panel on our conference's general themes, by Jeffrey Pojanowski, "Authenticity and Free Speech." Here is a fragment to give you a sense of Jeff's themes:

...I would like to suggest that even those who celebrate—or regard as irreversible—modernity’s departure from more fixed, prescriptive ways should pause before drawing a straight line from liberal individualism to free speech libertarianism...

Here I would like to draw on Charles Taylor’s Ethics of Authenticity. In this short series of lectures, he draws a contrast between the “knockers” of modernity and its “boosters”—both of whom presume the current dispensation is one of radical individualism that precludes shared reasoning about ends. One side despairs of this disenchantment and the other welcomes it as a form of liberation and radical self-creation. Against the knockers, with whose laments he sympathizes, Taylor believes there is no “going back” to pre-modern unity and wholeness—a position consistent with his argument in A Secular Age. More importantly for our purposes, however, is his critique of the boosters who would unmoor authenticity from anything besides the whims and desires of the unencumbered self.

In particular, Taylor identifies a tension within the modern understanding of the self and society. On the one hand, the contemporary culture of authenticity involves “creation and construction,” “originality,” “opposition to the rules of society,” and “even potentially to what we recognize as morality.” On the other hand, Taylor contends, authenticity demands more of the person. It requires “openness to horizons of significance” and “self-definition in dialogue” with others...

A healthier understanding of autonomy, on Taylor’s terms, illuminates the difference between Freedom of Speech and BONG HiTS 4 JESUS. At the first pole, Jim Edgerton is in an important sense singular: he is dressed differently, is the only working-class person in the audience, and is the sole dissenter from a popular plan. At the second pole: he is speaking to, and trying to convince, his fellows on a matter of shared concern. Joseph Frederick interjects a nonsensical (most charitably, “playful”) message at a community event because he wants to be on television. We can draw similarly unflattering comparisons to lying about military commendations or disseminating virtual child pornography. A free speech culture that treats the two categories as indistinguishable appears to have veered away from the creative tension that Taylor sees as necessary for a healthy culture of authenticity.

Ekins, "Some Features of Liberalism in a Censorious Age"

I'll be excerpting and linking from the essays from our conference this summer on Liberalism's Limits: Religious Exemption and Hate Speech. The first contribution to the panel on the conference's general themes is by Richard Ekins, "Some Features of Liberalism in a Censorious Age." A bit from the conclusion:

Liberalism imagines a community united by consent and by a common scheme of principle, in which maximal autonomy is the end and affirmation of the autonomous choices of others is the means. This is neither coherent nor stable, as the transgender controversy confirms. But it does help explain public hostility, on the part of social and political elites, to those who dissent, viz. those who adhere to other faiths and/or refuse to affirm autonomous choices that they think are wrongful. Liberalism primes its adherents to misunderstand religious or other dissenting action as contemptuous of others, failing to perceive the significance of the intentions on which dissenters act, and wrongly running together person and action in a way that misrepresents disagreement as hatred. On this view, dissent from liberal principles is a kind of heresy, which needs to be purged for the good of all, or a kind of treason, in which the dissenters are imagined to be acting in breach of the fundamental grounds of our social and political compact. One sees this perspective in play in the hysterical way in which some liberal commentators respond to (occasional) political setbacks. If liberalism is a false faith, exposing its contradictions is unlikely to change the way in which dissenters are treated, but it may be a necessary step in framing a response.

Podcast on the Nones and Religious Liberty Pressure Points

Mark Movsesian and I have a new podcast discussing the problem of the Nones for law and religion. Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously dismissed the idea that a solitary seeker–the Court gave the 19th Century Transcendentalist Henry David Thoreau as an example–could qualify as a “religion” for constitutional purposes. “Religion,” the Court explained, means a communal activity, not a purely personal quest. Mark argues in his new paper, The New Thoreaus, that recent demographic changes in America have made this question an urgent one. Perhaps 66 million Americans today are unaffiliated believers–people who, like Thoreau, reject organized religion and follow their own, idiosyncratic spiritual paths–and more and more of them seek “religious” exemptions, including in the context of recent vaccine mandates. Mark examines some of these cases and argues that Yoder‘s dicta was basically correct: although religion cannot be an exclusively collective activity, the existence of a religious community is a crucial factor in the definition of religion for legal purposes. Listen in!

Chantal Delsol, "The Insurrection of Particularities, Or, How the Universal Comes Undone"

At our conference on "Liberalism's Limits: Religious Exemptions and Hate Speech" this summer, sponsored jointly with our longtime colleagues at Università LUMSA in Rome, the distinguished political historian Chantal Delsol gave a keynote address titled The Insurrection of Particularities, Or, How the Universal Comes Undone. You can see the full text of the talk over here (translated by me from the French, with Professor Delsol's permission, or available in the original for French readers). A bit:

On October 18, 2017, the French National Assembly adopted the State Law on Religious Neutrality. Article 11 provides that an accommodation for reasons of religion may be granted if 5 criteria are satisfied: the request is serious; the requested accommodation respects the equality of men and women, as well as the principle of religious neutrality of the State; the accommodation is not excessively constraining; and the requester has actively participated in finding a solution. By the same token, there will be no accommodation with respect to the obligation of all employees of the State to work with their faces uncovered and without wearing any religious sign.

One sees here the extent to which the legislator struggles to preserve as far as possible State neutrality tied to secularism, without actually achieving it, and doing so less and less. We are today on a kind of slope, which is the subject of our conference today: that which was accorded an exception more and more becomes the rule. The Quebecois speak of “reasonable accommodations,” to underline well that one should not surpass the limits of good sense. The example is cited in France of the authorization given for prayer in the streets which stops traffic. So, too, laws forbidding the scheduling of exams for students during the holidays of various religions, which made one journalist say, “soon only February 29 will be left to schedule exams.” The question is in fact posed about the diversity and plurality of exemptions, but that is only a subsidiary question consequent on others. These concessions, which raise a vision of equality solely constituted of privileges, interrogate our vision of the universal, and finally our way of being a society.

Our societies appear more and more to be aggregations of minorities disparate in every respect (they may be social, sexual, religious, or cultural, etc.). And everything happens as if the goal of governments is nothing more than to establish equality among these groups, which, always claiming and becoming indignant about not obtaining enough, monopolize public space. At this point, leaving behind Tocqueville who feared a tyranny of the majority, we could, as Philippe Raynaud put it, [1] fall into a tyranny of minorities.

This is not a superficial phenomenon. It is instead the result of a transformation of our view of the world.

Religiously Affiliated Law Schools conference . . . coming up!

After a little bit of a hiatus, the conference of the Religiously Affiliated Law Schools is coming up, and is this year being hosted by Prof. Sam Levine and his team at Touro.  I hope to see MOJ bloggers and readers there!  Here's the conference info.  The theme is, well, broad: "The Past, Present, and Future of Religiously Affiliated Law Schools".  Come join us!

Here is the program:

Conference Program

Thursday, September 15 

• 9:00 - 9:30 am - Breakfast and Welcome
  Elena B. Langan, Dean and Professor of Law, Touro Law Center
  Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer
  
  
• 9:30 - 10:30 am - Religion in the Intellectual Life of the Law School
  Jeffrey A. Brauch, Professor, Executive Director, Center for Global Justice, Regent University School of Law --- Moderator
  Rodger Citron, Associate Dean for Research and Scholarship and Professor of Law, Touro Law Center
  Brad J. Lingo, Dean, Regent University School of Law     
  Judith A. McMorrow, Professor of Law, Boston College Law School 
  
  
• 10:30 - 10:40 am - Break
  
  
• 10:40 - 11:40 am -- Religion and Faculty Hiring
  Deseriee Kennedy, Professor of Law, Touro Law Center -- Moderator 
  John M. Breen, Georgia Reithal Professor of Law, Loyola University Chicago
  Michael A. Helfand,  Brenden Mann Foundation Chair in Law and Religion and Co-Director, Nootbaar Institute for Law, Religion and Ethics, Pepperdine Caruso School of Law 
  Lucia A. Silecchia, Professor of Law and Associate Dean for Faculty Research,
  Catholic University of America, Columbus School of Law
  
  
• 11:40 - 11:50 am - Break
  
  
• 11:50 am - 12:50 pm - Religious Thought in Criminal Law Scholarship and Advocacy
  Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
  Melina A. Healey, Director of Clinical Programs and Assistant Clinical Professor, Touro Law Center 
  Marah Stith McLeod, Associate Professor of Law, Notre Dame Law School 
  Honorable Richard J. Sullivan, United States Circuit Court Judge for the Second Circuit
  
  
• 12:50 - 2:30 pm - Lunch/Tour of Central Islip State Hospital Cemetery
  
  
• 2:30 - 3:40 pm - Past, Present, and Future of Religiously Affiliated Law Schools (I)
  

  Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
  Marvin Krislov, President, Pace University  
  Tim Perrin, Senior Vice President for Strategic Implementation, Pepperdine University
  D. Gordon Smith, Dean, Ira A. Fulton Chair and Professor of Law, BYU Law School

• 3:40 - 3:50 pm - Break
  
  
• 3:50 - 5:00 pm - Past, Present, and Future of Religiously Affiliated Law Schools (II)
  Patricia Salkin, Senior Vice President, Academic Affairs, Provost, Graduate and Professional Divisions, Touro University -- Moderator
  Fayneese S. Miller, President, Hamline University 
  Rod Smolla, President, Vermont Law and Graduate School
  Michael Waterstone,  Fritz B. Burns Dean, Loyola Law School, Senior Vice President, Loyola Marymount University, Professor of Law  
  
  
• 5:00 pm - Tour and Reception, Judaica Room, Gould Law Library
  
  
• 6:00 pm - Dinner

Friday, September 16

• 9:00 - 9:30 am - Breakfast
  
  
• 9:30 - 10:30 am Religion and the Practice of Law (I)
  Mark Osler, Professor and Robert and Marion Short Distinguished Chair in Law, Univ. of St. Thomas (MN) -- Moderator
  Jeanne Bishop,  Assistant Public Defender at Cook County Public Defender's Office
  Allen Fagin, Former Chairman, Proskauer Rose, LLP; Board Member & Senior Advisor, Validity Finance  
  Joel A. Nichols, Interim Dean and Mengler Chair in Law, Univ. of St. Thomas (MN) 
  
  
• 10:30 - 10:45 am - Break
  
  
• 10:45 - 11:45 am - Religion and the Practice of Law (II)
  Tiffany C. Graham, Associate Dean for Diversity and Inclusion and Associate Professor of Law, Touro Law Center -- Moderator 
  Honorable Joseph F. Bianco, United States Circuit Court Judge for the Second Circuit
  Jordi Goodman, Visiting Clinical Assistant Professor, BU/MIT Technology Law Clinic,
  Boston University School of Law
  Randy Lee, Professor of Law, Widener Law Commonwealth 
  
  
• 12:00 - 1:00 pm - Lunch and Keynote Address
  Russell G. Pearce, Edward & Marilyn Bellet Chair in Legal Ethics, Morality, and Religion
  Fordham University School of Law
  
  
• 1:00 - 2:15 pm - Religious Liberty Advocacy
  John Linarelli, Associate Dean for Academic Affairs and Professor of Law, Touro Law Center -- Moderator 
  Nathan J. Diament, Executive Director, Orthodox Union Advocacy Center
  Josh McDaniel, Visiting Assistant Clinical Professor of Law, Director, Religious Freedom Clinic, Harvard Law School
  John Meiser, Supervising Attorney, Religious Liberty Clinic, Notre Dame Law School
  Lori Windham, Senior Counsel, Becket
  
  
• 2:15 - 2:30 pm - Closing Remarks
  Elena B. Langan, Dean and Professor of Law, Touro Law Center
  Samuel J. Levine, Professor of Law and Director, Jewish Law Institute, Touro Law Center -- Conference Organizer

 

 

"Traditionalism Rising"

That is the title of my new draft paper, developing work I’ve been at for the last 3-4 years, incorporating some of the decisions from this term, and setting out some justifications for this method of doing constitutional law. Here is the abstract:

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics.

"The New Thoreaus"

My colleague, Mark Movsesian, has just posted this new and very interesting paper. It discusses a new and rising pressure point on the legal conception of religion. It also argues for the indispensability of a communal element for legal purposes. Here's the abstract:

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the 19th Century Transcendentalist, Henry David Thoreau, would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly 66 million people—now claim, like Thoreau, to follow our own, idiosyncratic spiritual paths. The New Thoreaus already have begun to appear in the cases, including recent vaccine mandate challenges, and courts will increasingly face the question whether purely idiosyncratic beliefs and practices qualify as religious for legal purposes. In this essay, I argue that Yoder’s insight was basically correct: the existence of a religious community is a crucial factor in the definition of religion. Religion cannot mean an exclusively communal phenomenon; a categorical rule would slight a long American tradition of respecting individual religious conscience and create difficult line-drawing problems. Nonetheless, the farther one gets from a religious community, the more idiosyncratic one’s spiritual path, the less plausible it is to claim that one’s beliefs and practices are religious, for legal purposes.

The Contrasting Visions of the Judiciary in Brown and Dobbs

I have a short piece contrasting the Dobbs' Court's approach to judicial reasoning with that employed in Brown v. Board of Education. Here is a snippet: 

Brown v. Board of Education rightly mortally wounded Plessy v. Ferguson, and Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade. But Brown and Dobbs represent contrasting visions of the role of the judiciary in shaping American society. The Brown Court placed itself in the central role of creating a just society. The Dobbs Court cast itself in the supporting role of referee applying the standards set down by the Constitution, while locating the task of forming a just society in state legislatures on issues the Constitution is silent about.

Smolin on "Children, Mothers, Religious Liberty, and the Mission of the Catholic Church"

Prof. David Smolin (Samford) has a new paper out, which will be of interest to many MOJ readers.  Here is the abstract:

This article addresses, from religious liberty and theological perspectives, two sets of serious errors in the treatment of mothers and children, in which the Catholic Church (and other churches) participated.  These serious errors have created credibility gaps regarding the Church’s mission and societal role in assisting vulnerable children and families. 

 

Hence, much of this article is a theological examination of what went wrong in regard to two now prominent wrongs:  the residential schools for indigenous children in Canada, the United States, and Australia, and the treatment of single mothers and their children in Canada, the United States, Ireland, the United Kingdom, and Belgium.   The theological journey is necessary to the religious liberty claims for internal reasons---fidelity to the faith---and for external reasons---credibility to society so that society can see and understand that the church has and is learning from its own mistakes.  

 

The theological examination of these wrongs is framed by a discussion of the 9-0 victory of Catholic Social Services (CSS) in the Fulton v. City of Philadelphia case.   This religious liberty victory upon examination is based on the Supreme Court’s  very positive view of the work of CSS in the foster care system.  Religious liberty in the context of cooperative work between the government and religious agencies ultimately does require that the work of the Church is viewed as fulfilling secular goals of government.   

 

 

 

 

A rare example of statesmanship--and courage--by an academic administrator

I am reproducing here a Statement by Marschall S. Runge, MD, PhD, Dean of the Medical School of the University of Michigan, demonstrating the proper response by a leader of a public or non-sectarian private institution of higher learning to efforts to dis-invite or de-platform speakers or impose ideological litmus tests. The speaker in question here was Professor Kristin Collier, MD, who came under attack by campus ideologues because she believes in the sanctity of human life in all stages and conditions. Dean Runge refused to capitulate to the mob.

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Dear Medical School faculty, students and fellows,
 
The Medical School White Coat Ceremony is a special day for our medical students and their families as they are welcomed into the medical profession. The ceremony is a meaningful tradition that celebrates U-M medical students as they prepare to become leaders in medicine.
 
Kristin Collier, M.D., was chosen as the keynote speaker for the 2022 White Coat Ceremony based on nominations and voting by members of the U-M Medical School Gold Humanism Honor Society, which is comprised of medical students, house officers, and faculty. The Society chapter, which was formed at U-M Medical School in 2016, represents exemplars of humanistic patient care and who serve as role models, mentors, and leaders in medicine.
 
We have received both positive and negative feedback on the choice of our keynote speaker. The White Coat Ceremony is not a platform for discussion of controversial issues, and Dr. Collier never planned to address a divisive topic as part of her remarks.  Our values speak about honoring the critical importance of diversity of personal thought and ideas, which is foundational to academic freedom and excellence. We would not revoke a speaker because they have different personal ideas than others.
 
At this year’s White Coat ceremony, we will be honoring 168 outstanding scholars and formally welcoming them as the University of Michigan's newest class of medical students. This is an important day for them and their families, and we hope that all will honor this day dedicated to them and their families.
 
A forum on the importance of diversity of thought is being planned by Michigan Medicine, and additional details will be shared soon.
 
Sincerely,
Marschall S. Runge, M.D., Ph.D.
Dean, University of Michigan Medical School
Executive Vice President for Medical Affairs
CEO, Michigan Medicine

 

Vatican Radio Interview on "Liberalism's Limits"

Our conference, "Liberalism's Limits: Religious Exemptions and Hate Speech," which we co-sponsored with LUMSA last week in Rome, was a great success. Mark Movsesian and I will publish some of the conference proceedings after giving the participants time to revise their contributions. In the meanwhile, here is an interesting interview conducted by Radio Vaticana with Professors Cesare Mirabelli (President Emeritus of Italy's Constitutional Court and one of our keynote speakers) and our colleague, friend, and conference co-organizer, Professor Monica Lugato, about the conference and some of our broader joint projects.

The interview is in Italian, but I'm taking the liberty of translating loosely a portion of what Professor Lugato said to give our English-speaking readers a sense of the proceedings: "This conference was in a line of academic projects undertaken jointly by our universities dating from 2014 [and as early as 2012] with the idea of discussing some central and complex themes concerning the problem of living together--of how to live together in societies marked today by substantial pluralism. The objects of this general theme have been conferences concerning aspects of religious freedom as well as the legal and political implications of the concept of tradition. Within this general line of inquiry, it was natural to confront the problems of the limits of liberalism, and in particular liberalism's tendency to render absolute certain individual liberties. Some of the questions asked at the conference might be grouped into two categories: on the one hand, questions about whether liberalism, at least in its classical sense, has exhausted itself; and on the other hand, questions about whether liberal political and legal systems demand certain limits on individual liberties just in order to survive as liberal systems, and what those limits might be."

"We the People" Podcast on Carson v. Makin and Kennedy v. Bremerton School District

I greatly enjoyed doing the National Constitution Center's "We the People" podcast (available here) with Dean Erwin Chemerinsky (UC Berkeley Law) and moderated by Jeffrey Rosen on the Supreme Court's recent decisions on school funding and prayer--Dean Chemerinsky and I had a lot of spirited but respectful disagreements!

Re-Post: Abortion, Religion, and the Accusation of Establishment

The Post-Dobbs world in which we now live has brought with it an oft-repeated accusation, now voiced with renewed vigor: the pro-life position is inherently religious and so cannot serve as the foundation for any law restricting abortion.  This accusation is an attempt to win an argument without really having one – to declare illicit and rule out of bounds ab initio an opposing point of view.  Moreover, it is an accusation that draws upon the ugly history of anti-Catholic animus and violence in the United States.  It is a slur that seeks to paint the advocates of the pro-life position as religious zealots who seek to impose the moral demands of their faith on the public at large.  The image above, posted by an Illinois State Senator following the Dobbs ruling (and referred to in Rick Garnett’s First Things piece) reflects the hate directed toward Catholics as a result of the Church’s efforts to protect and foster unborn human life.

In responding to this accusation, some might find it helpful to consider my article Abortion, Religion, and the Accusation of Establishment.  I am reposting it here following Rick’s suggestion.  In the piece I engage in a line-by-line critique of Justice Stevens’ opinions in Thornburgh, Webster, and Casey where he attempts to show that the pro-life position is inherently religious such that, when it is embodied in law, it constitutes an establishment of religion in violation of the Constitution.  Like others who level this accusation, Stevens fails in this regard.  Indeed, he does nothing to actually show the religious nature of the normative premises he opposes.  He merely assumes that they are religious, and in so doing channels the anti-Catholic sentiment now once again on vivid display throughout our country.

I will have more to say about this in a subsequent post.

Podcast on the School Funding and Prayer Cases

To say that the past Supreme Court term was consequential might be to understate matters. Mark Movsesian and I have this Legal Spirits podcast discussing Carson v. Makin and Kennedy v. Bremerton School District, two important church-state cases--potentially as important as we have seen in some time. Listen in!

Garnett on "Anti-Catholic Attacks After Dobbs"

I have a short piece up at First Things, here, about the predictable but still tiresome charges that the Supreme Court's Catholic justices are somehow imposing their religious beliefs, or ushering in a theocracy, by voting to (e.g.) undo the Roe and Casey decisions.   I write:

Duly enacted laws do not become unconstitutional religious edicts simply because they are consonant with religious communities’ teachings. The fact that citizens are motivated or inspired by faith does not taint their political activism and participation. A jurist who concludes that the relevant constitutional text permits a controversial question to be decided politically is not issuing an encyclical or reporting a revelation.

The foundational premise of the pro-life position—that is, that every human being should be “protected in law and cared for in life”—is no more “theological” than the commitments behind laws mandating environmental stewardship and prohibiting unjust discrimination or exploitation. The facts about the human person and about human development, not secret knowledge or gnostic mysteries, are the basis of the pro-life case and the warrant for pro-life legislation. Neither bigoted attacks on Catholic justices nor superficial invocations of church-state separation change these facts.

Also, in the piece, I reference a detailed study of the deployment of these charges in the abortion context by our own Prof. John Breen.  Check it out.

Conference, "Liberalism's Limits: Religious Exemptions and Hate Speech"

Our Center for Law and Religion (which I co-direct with Mark Movsesian) is co-sponsoring with our longtime partner institution, the Università LUMSA in Rome, a conference in Rome next week: Liberalism's Limits: Religious Exemptions and Hate Speech. We've got a wonderful group of presenters representing a broad range of perspectives. Cesare Mirabelli, the president emeritus of Italy's Constitutional Court, and the political historian Chantal Delsol, will kick things off, followed by three workshops considering the themes of the conference. More soon on the papers.

A long awaited win for educational pluralism and religious freedom in Carson v. Makin

Way back in 1996, my wife Nicole Stelle Garnett was a young lawyer with the scrappy crew at the Institute for Justice, and participated in a challenge to the Maine tuitioning program that the Supreme Court just (finally) ruled against today in Carson v. Makin.  (I filed an amicus brief in the case, for Agudath Israel, if I recall.)  I usually don't buy claims about the "arc of history" but, this time, the long journey ended in a good place.  The repair of the Court's education-funding doctrine over the last 20 years has been striking.

I was sorry to see Justice Breyer, in dissent, still beating his drum about the judicial obligation to evaluate state policies with an eye toward managing "strife" and "division."  As I explained (at great length!) here, the "political divisiveness along religious lines" argument in church-state law has always been wrong:

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good. This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument. The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is religiously based social conflict - or, as the Court put it in Lemon, political . . . divisiveness on religious lines? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the principle it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally? Working through these questions, I am mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism (is) the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.

"Under Caesar's Sword" Online course

My friend and colleague, Dan Philpott, ran a research project called "Under Caesar's Sword", a collaborative global project that investigated how Christian communities respond when their religious freedom is severely violated.  And, this Fall, he is putting on a six-week, online course on the subject, which should be great.  Click the link to register!

"Religion and the American Constitutional Experiment" - Order Now and Save

Multiple Levels in Common Good Constitutionalism

A prominent structural feature on the surface of Professor Vermeule's Common Good Constitutionalism is its two-level presentation of CGC. One reason the book has received such divergent reactions is inattention to this two-level structure. 

Level one is Generic CGC. This is in Chapter 1. This part is presented—and is to be taken—as correct, even if not entirely at face value. Vermeule deliberately leaves underdeveloped the key concept of the common good with respect to the God and religion, for example. This can be misleading even in ways that the author may not have intended. In any event, Generic CGC can more or less be taken as true except for what it explicitly disclaims addressing.

Level two is Vermeulean CGC. This in Chapters 2 and 5. The author explicitly advises the reader about the detachability of Vermeulean CGC from Generic CGC. Among other features, this insulates Generic CGC from warranting rejection just because Vermeulean CGC is shown to warrant rejection.

So far so good. As a demonstration of the intelligence and strategic foresight of the author, this structural feature has shown its utility in anticipating and enabling facile authorial responses to the divergent reactions to the book thus far.

The divergence is that devotees warmly embrace it at Level One while critics denounce it at Level Two. I'm inclined to believe that both reactions are correct. Generic CGC is to be embraced; Vermeulean CGC is to be abjured.

This inclination is unsurprising, of course, given Vermeule's inability to distinguish Generic CGC from the classical natural law grounding Jeff Pojanowski and I were advocating years ago for fidelity to the U.S. Constitution as positive law. Generic CGC is just another label for the same understanding of classical natural law we and many others rely upon for St. Thomas Aquinas's understanding of law in terms of its four causes. We took up residence on Level One a while ago and are always happy to welcome others.

Pojanowski and I have differences with Vermeulean CGC, to be sure, but then again these are exactly the kinds of differences one would expect from a correct understanding of Generic CGC. As for Generic CGC as a new label for the classical Thomistic understanding of law's essence, the problem with Vermeule's new branding is its emphasis on just one of law's four causes: the common good (final cause). This tends to efface the necessary contributions of law's other three causes: ordinance of reason (formal cause), made by one with public authority/care for the community (efficient cause), and promulgated (material cause).

My advice for people trying to make sense of Common Good Constitutionalism is to pay close attention to the multilevel presentation throughout. This includes the distinction between Generic CGC and Vermeulean CGC. But it also includes attentiveness to other features of Vermeule's arguments both in the book and elsewhere that suggest the book's intentional incompleteness. Roughly contemporaneously with the publication of Common Good Constitutionalism, for instance, Vermeule published with co-author Conor Casey an article titled Myths of Common Good Constitutionalism. At the operational level for lawyers and judges, this Myths piece is much more helpful than the book that Myths tells you how not to read.