Saturday, January 25, 2020
Wednesday, January 22, 2020
I’ve spent a lot of time lately thinking about our tax code in the United States and how it influences charitable giving. The main reason I’ve been paying more attention to this area of policy is because I was given the incredible opportunity to teach an experiential learning course here at Notre Dame this past fall. The students are given the responsibility of awarding actual grant dollars to local nonprofits. Suffice it to say, their dedication and hard work is beyond inspiring. These students are future leaders. I know they will be model citizens by working and volunteering at nonprofit organizations, and by giving financially throughout their lives.
Yet, I fear that our tax code in its current state is not encouraging charitable giving and that it promotes certain types of giving over others. I especially fear that it dissuades young people from giving, which means giving is not part of their personal finance plans and is not truly considered until much later in life.
The signature aspect of the Tax Cuts and Jobs Act of 2017 was that it nearly doubled the standard deduction. The consequence has been a drastic decline in the number of tax filers that itemize from about 30% to 13%. On its face, I think that is a positive outcome. The less burdensome tax filing is for more Americans, the better. However, the charitable gift deduction was and still is a below the line tax deduction. That’s problematic because tax filers taking the standard deduction and not itemizing receive zero tax benefit by making charitable gifts to 501(c)3 organizations. My tax law professor in law school once said that the tax code, at the end of the day, is social engineering. I think he’s right. The code incents me to withhold pretax dollars and contribute to a 401(k) or 403(b). It’s a signal from the government that retirement savings is important. Rightfully, retirement saving is an above the line deduction. The problem with doubling the standard deduction and keeping the charitable gift deduction below the line is that it signals to taxpayers that charitable giving is important, but only important for taxpayers who itemize. And which taxpayers generally itemize? Often times, wealthier Americans and/or filers with mortgage interest payments large enough to make itemizing the best decision. That’s an awful way to encourage and promote charitable giving.
Senator Mike Lee (R-UT) released a report in November that suggested we change our charitable gift deduction and make it more universal. The easiest solution is probably to move the charitable gift deduction above the line. The other consequence of this current policy is that it tends to favor charitable giving to secular causes over religious ones. Households with incomes below $200,000 are more likely to direct their charitable dollars to organizations that are religious in nature, or to organizations that directly help those in need. More affluent households are more likely to direct charitable dollars to organizations such as museums and universities. That’s not to say that the charitable giving done by the former group is more commendable. And it’s not to say that the differences in giving among the two groups is as clear cut as the studies might suggest. However, a tax code that offers a tax benefit to some taxpayers, oftentimes wealthier ones, and offers no such benefit to almost 9 in 10 Americans is structurally flawed. I hope that Lee’s report receives more attention and that this policy can change.
January 22, 2020 | Permalink
Tuesday, January 21, 2020
I would like to draw attention to a Letter to the Editor published in today's student newspaper at Notre Dame, The Observer. The letter is authored by David Spicer, a summer fellow in 2019 here at the Notre Dame Law School Program on Church, State & Society.
It's well worth reading, and it is partly a response to an Observer article published last week by another Notre Dame law student. I feel that both students make great points, and I am thankful that we can have these important conversations here at Notre Dame freely and in good spirits.
January 21, 2020 | Permalink
Tuesday, January 14, 2020
University of Tennessee professor of law Benjamin H. Barton has published a new book, Fixing Law Schools: From Collapse to the Trump Bump and Beyond, that is gaining a lot of attention.
Barton's findings were also recently featured in The Chronicle Review. Of interest is the decline in law school applications after the Great Recession and the consequences for law schools themselves, specifically cuts in faculty lines and less funding available for experiential learning courses. The other piece of the puzzle is an increase in tuition prices but more financial aid awards to top applicants at top schools.
Barton was asked in an Inside Higher Ed interview last month just what exactly law schools need to do to change. His answer:
Q: How should law schools change?
A: I have three basic suggestions. The first is the simplest to state, but the hardest to accomplish: law schools must become cheaper, or at least stop continuously outrunning inflation. The current cost and debt levels make law school a much worse investment than it was a generation ago, when placement was stronger and tuition was radically less. In 1985, it cost an average of $2,006 for in-state tuition and $7,526 in tuition for a private law school. In 2018 dollars that tuition is only $4,713 in-state and $17,681 for a private school. The actual 2018 averages are $27,591 for in state and $49,095 for private law schools! Law schools must recognize the changing market and adjust. If they do not, state and federal laws, especially those that subsidize law schools through state support or fully subsidized federal loans, are likely to change, and not to the benefit of law schools.
The second is for law schools to be much more aggressive and forward looking in teaching how to use technology to practice law. This does not mean that law schools should teach every student coding (although having an elective coding class is a good idea). But the lawyers who make it in the future will be the ones who leverage technology to their benefit, allowing them to practice “at the top of their license,” to use Richard Granat’s famous phrase. Technology can replace more rote tasks and allow lawyers to do more highly sophisticated work for more clients for less money. Rather than fearing technology as a competitor, law schools much embrace technology as a key assistant. We need to start teaching students these skills.
Last, the ABA has moved to regulation that focuses more on law school outputs (bar passage, job placement, attrition, etc.) rather than input measures (the size of the faculty, the number of books in the law library, etc.). This is a good trend, and law schools should take advantage of it by trying different models. That said, there has been too much predatory behavior by some law schools in the last decade, so I’d also encourage the ABA to be ever vigilant. So, law schools should let a thousand flowers bloom, but make sure not to be evil!
January 14, 2020 | Permalink
This Wall Street Journal piece -- which is, I gather, a condensed version of a forthcoming book -- "Saving Democracy from the Managerial Elite", by Michael Lind, is worth a read and might well be of interest to MOJ readers and people interested in Catholic approaches to "the social question." A lot of it echoes things that (many) others have been saying lately -- Chris Arnade, Rusty Reno, Tim Carney, J.D. Vance, Robert Putnam, etc., etc. Two things that struck me (in a good way) were (1) Lind's recognition that, even in the context of this debate, it makes sense to distinguish between public-employee unions and private labor unions, given that the former tend increasingly to reflect and advance the interests of those Lind calls "the managerial elite" at the expense of less mobile and credentialed people and (2) his implicit (I wish it were explicit!) acknowledgement that getting past some of our current polarization and pathologies will require policies that make it possible for traditional religious believers to have meaningful access to alternatives to "public school monopolies" for the education of their children.
Monday, January 13, 2020
I have a review of Professor Greg Weiner book, The Political Constitution: The Case Against Judicial Supremacy, over at the Liberty Fund blog. I've reposted a bit below. I enjoyed the book very much, especially because it got me to think critically about a general orientation to judicial review that I happen to favor. And I should add that I could and should have raised racial fragmentation as another reason for skepticism about a return to the localist republicanism of earlier days (thanks to Professor Ekow Yankah for some useful correspondence on this point).
The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.
These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.
One view favors the claims of the political community as against the individual, asking judges to acquiesce in them; the other, the claims of the individual as against the political community, asking judges to vindicate them. Yet while the cost in abandoning the former may only be the loss of some implausible claims of individual freedom, the cost in forsaking the latter, Weiner says, is nothing less than the American republican soul….
The problem that the book sets out to solve is therefore dwarfed by the problem that it actually uncovers. If that problem—the problem of the endurance of “We the People” in America—is to be engaged (I say nothing of solved) from the judicial end of the table in a satisfactory way, it will not be through judicial disengagement and leaving the people to their own devices, as ill-considered and noxious as they may be. It will instead be at least in part by asking courts—carefully and always honoring the limits assigned to them by the Constitution—to engage with American constitutional law in ways that differ substantively from the partisans of “judicial engagement” whom Weiner criticizes.
Friday, January 10, 2020
My friend and colleague Gerard Bradley has a Public Discourse essay up, which is worth a read, called "Learning from Integralism." A bit:
[T]he First Amendment stipulates that the truth or falsity of putatively revealed propositions is beyond the scope of authoritative resolution by those with care of our political society. The First Amendment does not say, or suppose, or even suggest that all such propositions are in reality somehow equally true (or false), or that they have at most the “truth” of poetry, or that all such alleged revelations are fantastical or mere human projections. Not at all: the First Amendment was ratified by a population that took the tenets of natural and revealed religion most seriously. It has been supported by countless Americans—notably including America’s Catholics—since. By recognizing and affirming the truths of natural religion—including the truth that a divine entity created what there is and sustains it in being out of providential care for humanity—America’s political leaders implicitly endorsed the entailment that such a divine entity would communicate somehow with humankind. They endorsed, in other words, the proposition that genuine revelation is not only possible, but likely.
Monday, January 6, 2020
Here is an interesting opinion piece, by Thomas Hibbs, which discusses (among other things) the work of my Notre Dame colleagues at the Lab for Economic Opportunities. A bit:
We all understand poverty is a problem, one that can seem intractable and inevitable. But what if the way we have approached poverty has been wrong for years, for generations even?
There’s evidence it might be.
The traditional model of the American social service industry has long been a one-size-fits-all approach that treats the symptoms of poverty — transportation, child care, food insecurity — but does nothing to address the cause. The result traps the poor in a never-ending cycle of dependency and stigma, creating repeat customers.
That scathing indictment comes not from a critic of the war on poverty but from one of its most passionate advocates.
Thursday, January 2, 2020
Originalist article and brief on ministerial exception. My students Nathaniel Fouch and Erik Money and I have just published a piece in the Federalist Society Review. It's Fouch, Money, and Berg, "Credentials Not Required: Why an Employee’s Significant Religious Functions Should Suffice to Trigger the Ministerial Exception." (PDF version here.) It arises from the two cases the Supreme Court just agreed to hear, St. James School v. Biel and Our Lady of Guadalupe School v. Morrisey-Berru., and an amicus brief that the St. Thomas Religious Liberty Appellate Clinic filed--with Nathaniel and Erik as student drafters--supporting certiorari (successfully) in the Morrisey-Berru case. The article expands on the brief but also reflects our personal views rather than the views of the amici we represented (although the views of course are very similar).
In short, narrow definitions of minister—notably, laws setting educational and other credentials for ministers—were prominent among the evils to which the Religion Clauses were a response. Today, some courts are repeating this evil by effectively requiring that a minister possess “credential[s], training, or ministerial background” in order for an organization to invoke the ministerial exception. Such requirements impose civil authorities’ assumptions—almost inevitably majoritarian assumptions—that certain training or formalities are inherent in the concept of a minister.
Other 2019 work by the St. Thomas RL Clinic. Our clinic (info here) had a productive 2019. We filed or started work on amicus briefs in 4 cases in the Supreme Court (including the minister cases above), representing Christian, Jewish, and Muslim groups. Throughout the students did great work, and through the goal was to promote (in the way kids would put it on social media) #ReligiousFreedomForAll.
1) The Seventh Circuit upheld the validity of the federal tax provision allowing clergy to exclude housing allowances from taxable income (which equalizes religious groups that don’t own parsonages with those that do). The court cited our clinic's brief, filed on behalf of Christian and Jewish groups, which had presented various statistics and tax calculations to show how invalidating the provision would seriously harm tens of thousands of congregations, and especially harm small urban ones.
2) In April we filed a brief (successfully) supporting certiorari in Espinoza v. Montana Dept. of Revenue, the case on whether a state court can invalidate a school-choice law (tax credits for people indirectly supporting private schools) solely on the (discriminatory) basis that the program includes religious schools. Oral argument on the merits is Jan 22.
3) We’re happy that the Solicitor General urged the Court to grant review in Patterson v. Walgreen Co. and finally give teeth to Title VII's requirement that employers accommodate employee religious practice except in case of "undue hardship." Our brief, filed for Christian and Muslim organizations, documented that accommodation disproportionately protects minorities--Muslims, Jews, other Saturday sabbath observers, and others--and that the current weakness of the test disproportionately harms them.
4) We contributed to research to help the coalition proposing the new "Fairness for All" legislation, which offers a thoughtful solution to the knotty problem of giving meaningful antidiscrimination protection for gay, lesbian, and transgender rights and meaningful protection to the religious liberty of those conscientiously opposed to facilitating same-sex or transgender conduct.
5) We’re currently working on FNU Tanzin v. Tanvir, the new Supreme Court merits case where the FBI put Muslim Americans on the no-fly list for refusing to inform on fellow worshipers in what they regard as an overbroad security investigation. We'll be co-counsel on a brief of religious-liberty scholars supporting the plaintiffs' claim that they can sue individual agents for damages under the Religious Freedom Restoration Act.
I would like to thank the Notre Dame Law Moot Court Board students for again hosting an excellent religious freedom moot court tournament during the fall semester. The tournament was established in 2016 to bring together competitors, scholars, and practitioners from across the country to encourage legal dialogue on a religious freedom topic. The 2019 tournament, our fourth consecutive tournament at our Notre Dame campus, was made even better thanks to a generous grant from the Bradley Foundation. I feel very confident in our ability to host a first rate tournament for years to come, and I encourage all interested Law students to consider joining us in November of 2020. You can read more about the 2019 tournament here.
Speaking of religious freedom moot court tournaments, Notre Dame Law School will be involved with the 2020 International Moot Court Competition in Law and Religion. The tournament is hosted by the European Academy of Religion and is in its third year. We are thrilled that the tournament this coming March will take place at the Notre Dame Rome Global Gateway.
January 2, 2020 | Permalink
Sunday, December 29, 2019
For today's Feast of St. Thomas Becket, below is a passage from the conclusion of historian Anne Duggan's very fine 2004 biography (previous posts on Becket's legacy drawing upon Tudor historian John Guy and GK Chesterton are here and here). 2020 will mark 850 years since Becket's martyrdom on December 29, 1170 and 800 years since the translation of his remains from the crypt of Canterbury Cathedral to a shrine on July 7, 1220. See here for information about a series of Becket2020 events and here for an exhibition on Becket at the British Museum opening October 15.
If one picture is worth a thousand words, the depiction of Becket’s murder—with the armour-clad knights brandishing their swords above the unprotected head of the priest—created an unforgettable image, which expressed the tension between religious and secular forces. No commentary was required to interpret the dramatic scene transmitted across Europe in manuscripts or on the reliquaries manufactured in Limoges. Detached from the specifics of the dispute with Henry II, that image became a powerful symbol of ecclesiastical steadfastness in the face of secular excess. In a sense, the image was the message; and the meaning of the message was not lost on Henry VIII, who destroyed the shrine and caused the hated name to be erased from the service books of the English Church; nor was it lost on the controversialists of the post-Reformation era, Catholic, Anglican and Protestant, who responded to the message with praise or censure according to its application to their own outlook.
Many secular heroes are made by single events: Richard I at Acre, Henry V at Agincourt, Nelson at Trafalgar, Wellington at Waterloo, Montgomery at El Alamein. For martyrs, it is the fact of their death in defence of their beliefs that justifies their claim. In Becket’s case, the cause for which he died was ultimately bypassed by history; but it had numerous analogues that could be recognized in very different historical settings. Even in this generation, the murder of Archbishop Oscar Romero of San Salvador in , or of Father Jerzy Popiełuszko in Poland, called up the image of St Thomas of Canterbury, murdered for opposition to a powerful king. Becket’s example, of resistance to an aggressive “public power” and courage in the face of extreme violence, could be appreciated by men and women across the ages.
Anne Duggan, Thomas Becket (2004), 268-69.
Thursday, December 19, 2019
Jon Hannah already noted the good news that the Supreme Court has agreed to review the Ninth Circuit's (misguided) rulings in St. James School and Our Lady of Guadalupe school. In each of these cases, the Ninth Circuit adopted a very narrow version of the "ministerial exception," which was unanimously confirmed to be constitutionally required by the Supreme Court in the Hosanna-Tabor case. Here is an amicus brief, filed on behalf of a number of church-state scholars (including MOJers Michael Moreland and me), urging the Court to grant cert. (and reverse). From the "summary of the argument":
In Hosanna-Tabor, this Court affirmed that the
ministerial exception protects the autonomy of
religious organizations to select those who perform
significant religious functions, including religion
teachers and others who help transmit the faith. Both
history and precedent show that the First
Amendment forbids the government from
“interfer[ing] with the internal governance of the
church.” Hosanna-Tabor, 565 U.S. at 188. And to
protect the right of religious autonomy, religious
organizations must have the freedom to “control . . .
the selection of those who will personify [their] beliefs”
or “teach their faith.” Id. at 188, 196. The ministerial
exception embodies this principle by prohibiting the
government from imposing sanctions on religious
organizations for the hiring and firing of key religious
personnel, including religion teachers.
In the decision below, the Ninth Circuit
misconstrued the ministerial exception in two ways.
First, it misread Hosanna-Tabor as adopting a set of
mechanical requirements that must be satisfied in
every case for the ministerial exception to apply.
Second, it failed to recognize that the core purpose of
protecting religious autonomy requires applying the
exception to all employees who have significant
The Ninth Circuit’s decision not only departs from
this Court’s precedent and the history underpinning
the ministerial exception, but also conflicts with every
other Circuit to address this issue.
Wednesday, December 18, 2019
The Supreme Court agreed today to weigh in on whether the government can control who a church school chooses to teach its religion classes. In Our Lady of Guadalupe School v. Morrissey-Berru and in St. James Catholic School v. Biel, the Becket Fund for Religious Liberty is defending two California Catholic elementary schools’ right to choose ministers that embody their faith without government interference. After the U.S. Court of Appeals for the Ninth Circuit ruled against both schools and rejected the prevailing common-sense standard for allowing religious schools to choose their teachers, Becket appealed to the Supreme Court, which has now agreed to hear both cases.
Read more from Becket here.
December 18, 2019 | Permalink
Monday, December 16, 2019
A new report claims that values-based education offered by Catholic schools can serve as a model for all schools seeking to reform and to improve the long-term success of their students.
The report, “Catholic On the Inside: Putting Values Back at the Center of Education Reform,” released last week by the Manhattan Institute, states that while debates over school reform have intensified in the last two decades, “values, culture, and beliefs - the inside of a school - have largely taken a backseat to these external, structural changes.”
Read the entire article at Crux here.
December 16, 2019 | Permalink
Thursday, December 12, 2019
St. Anselm College monks have sued their own school, claiming that trustees’ efforts to reduce the power of the on-campus Benedictine monks threaten the 130-year-old institution’s Catholic identity.
The lawsuit, filed late last month in Hillsborough County Superior Court in Manchester, asks a judge to prohibit college trustees from changing bylaws without the consent of the monks, whose order founded the university.
December 12, 2019 | Permalink
Tuesday, December 10, 2019
The world of medieval history suffered a great loss on November 30 with the death of Professor Brian Tierney. Widely recognized as a leading scholar of medieval Western Christianity and how church law and institutions affected the broader culture of Europe, Tierney wrote widely but also deeply on topics ranging from the origins of papal infallibility to how religion shaped the development of constitutionalism.
December 10, 2019 | Permalink
Monday, December 9, 2019
We join many others in the Law & Religion community today in mourning Al McDonald’s death. In 1989, Mr. McDonald and his wife Suzie founded the McDonald Agape Foundation which works with a select group of universities and scholars who represent models of spiritual knowledge and deep faith.
Read more about the good work that Al and his foundation did for the field here.
December 9, 2019 | Permalink
I’m delighted to notice this new church-state reader put together by John F. Wilson and my friend, Donald L. Drakeman, Church and State in American History: Key Documents, Decisions, and Commentary from Five Centuries (4th edition, Routledge). Don kindly informs me that what is new about this edition of the reader is a greatly expanded historical section before the American founding, beginning with the Biblical texts and proceeding through the early Christian and medieval era. It also has the American context, the big Supreme Court cases, and so on.
Every time I teach a church-state course of any kind, I cobble together material from a number of different sources as a kind of rapid introduction for students to this area of the law (John Witte's fine and helpful work figures prominently). This book looks like a handy solution. And I’m sure it’s written with Don’s typical flair and panache.
Here is the description from Routledge:
Church and State in American History illuminates the complex relationships among the political and religious authority structures of American society, and illustrates why church-state issues have remained controversial since our nation’s founding. It has been in classroom use for over 50 years.
John Wilson and Donald Drakeman explore the notion of America as “One Nation Under God” by examining the ongoing debate over the relationship of church and state in the United States. Prayers and religious symbols in schools and other public spaces, school vouchers and tax support for faith-based social initiatives continue to be controversial, as are arguments among advocates of pro-choice and pro-life positions. The updated 4th edition includes selections from colonial charters, Supreme Court decisions, and federal legislation, along with contemporary commentary and incisive interpretations by modern scholars. Figures as divergent as John Winthrop, Anne Hutchinson, James Madison, John F. Kennedy, and Sandra Day O’Connor speak from these pages, as do Robert Bellah, Clarence Thomas, and Ruth Bader Ginsberg.
The continuing public and scholarly interest in this field, as well as a significant evolution in the Supreme Court’s church-state jurisprudence, renders this timely re-edition as essential reading for students of law, American History, Religion, and Politics.
Friday, December 6, 2019
Today the federal "Fairness for All" bill was introduced; it aims to give significant protection to both LGBT nondiscrimination rights and traditional believers' religious-freedom rights. Full information about the bill here. It is already being attacked from both sides of the ongoing, polarizing culture war for which this issue provides such fuel. For reasons I and others have long articulated, neither side is going to prevail in without protracted conflict that will continue to harm (1) the cause of traditional religious faith, (2) LGBT people's basic equal treatment in significant parts of the country, and (3) the bonds that keep America together.
The bill is not perfect, but it would be a major step forward. Carl Esbeck, Doug Laycock, Robin Wilson, and I have joined a letter supporting the bill. Here is the text of our letter. (Update: It's also available on the FFA coalition's website and here.)
December 6, 2019
We are constitutional law scholars who have studied, taught, and written about the law of religious liberty for decades. All of us have persistently argued for religious liberty in legislatures and in the courts. Most of us have also argued for LGBTQ rights in legislatures, the courts, or both.
We have long been concerned about legal clashes between those who cherish the fundamental right to religious liberty and those who advocate new legal protections for the civil rights of LGBTQ people. These conflicts have led to increasingly polarized positions in which progress is blocked for both sides. Many Americans think that traditional believers seek a general “license to discriminate” and that hostility to the LGBTQ community is the public face of Christianity. Many traditional believers think that the LGBTQ community and its supporters are determined to destroy their institutions, deprive them of their rights, and confine them to hidden and wholly private corners of the society.
Neither side’s perception of the other is accurate, but the perceptions are real, and they have done much damage to traditional believers, to the LGBTQ community, and to the larger society. Same-sex marriage is protected from interference by government, but in about half the states, same-sex couples can still get married on Saturday and discover that one or both of them has been fired on Monday. Believers with conscientious objections to assisting with same-sex weddings still fear being forced to surrender their consciences or close their businesses in the other half of the states, and churches and other religious organizations fear intrusive regulation or loss of tax exemptions everywhere, whether from blue states or federal agencies.
There is a better way. The proposed Fairness for All Act is balanced civil rights legislation that equitably protects the rights of both communities. It broadly protects LGBTQ persons in employment, housing, credit, public accommodations, federally assisted programs, public facilities, jury service, refugee resettlement, and marriage recognition, and it offers protection against bullying and retaliation. It broadly protects religious institutions and individual believers in practice, doctrine, conscience, and institutional integrity. It protects tax exemptions; it protects small businesses and medical professionals; it greatly strengthens accommodations for religious employees. It protects free speech in the workplace for both supporters and opponents of same-sex marriage.
Both traditional believers and the LGBTQ population would have far more protection under this bill than they have under existing law, and far more protection than they have any reasonable prospect of enacting without this bill or some similar negotiated solution. The experience in Indiana with attempts to enact a state Religious Freedom Restoration Act, and less publicized failures in Georgia, Michigan, Ohio, and West Virginia, show that except possibly in the reddest states, the religious community cannot pass additional religious liberty legislation without making adequate provision for LGBTQ rights. It is equally clear that LGBTQ advocates cannot pass gay-rights legislation in Congress or in red states without making adequate provision for religious liberty. No state has enacted a new statewide law against sexual-orientation discrimination since Colorado in 2007—with one telling exception. The deep red state of Utah was able to enact statewide protections for sexual orientation and gender identity in housing and employment, but only because it protected religious liberty in those domains in the same bill.
LGBTQ people still face discrimination and need protection now, not after some imagined political realignment far in the future. Many of these cases arise in secular and nonsexual contexts where there is no plausible claim that religious faith is the reason for discriminating. Few Americans, if any, sincerely believe that God wants LGBTQ persons to be unemployed, homeless, or without access to basic goods and services. But all kinds of discrimination against LGBTQ people are entirely legal under federal law and in about half the states.
More than half of Americans live in jurisdictions where state or local laws already protect LGBTQ people from discrimination. But these laws do not strike an adequate balance with religious liberty. Most state-law protections were enacted before the Supreme Court’s marriage decisions and therefore do not address the most religiously sensitive conflicts. This bill addresses some of those conflicts; it leaves others to state law.
Some traditional religious believers would rely on protections in regulations recently issued by the Trump Administration. But these regulations offer no protection for LGBTQ rights, some of them are subject to challenge as lacking statutory authority, and all of them will likely be withdrawn by the next Democratic President as quickly and easily as they were issued. Legislation can also be amended, but doing so is far more difficult, requires a far more elaborate process, and usually requires at least some votes from both political parties. Reliance on the courts is deeply uncertain for everyone involved, but for the foreseeable future the courts are especially unpromising for advocates of LGBTQ rights.
The Fairness for All Act has been carefully negotiated by representatives of the traditional religious community and of the LGBTQ community. It comprehensively addresses the issues, and it addresses them in the context of current law. No negotiated solution is perfect from the perspective of either side. But the negotiated solutions in this bill are well thought out and carefully drafted, and as we said, they would make both the LGBTQ community and traditional faith communities far better off than they are today. In putting together complex legislation, there will always be provisions we might do a little differently, but the interested groups should not let the perfect be the enemy of the good.
The nation’s deep division on these issues is aggravating polarization and contributing to gridlock more generally, and it is making lasting progress impossible for either side. We urge Americans of good will and of all views on these issues to support a negotiated solution. It would be a huge advance for both sides.
Of course we write in our individual capacities as scholars; none of our institutions takes any position on the bill or the issues discussed in this letter.
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas (Minnesota)
Carl H. Esbeck
R.B. Price Professor Emeritus of Law and
Isabelle Wade and Paul C. Lyda Professor Emeritus of Law
University of Missouri
Robert E. Scott Distinguished Professor of Law
University of Virginia
Alice McKean Young Regents Chair in Law Emeritus
University of Texas
Robin Fretwell Wilson
Roger and Stephany Joslin Professor of Law
University of Illinois Urbana-Champaign
For many (Ed.: Many!) years, we at MOJ have highlighted the importance for law and legal theory of attention to philosophical and moral anthropology -- that is, to an understanding of what human persons really are and are for. It's about five years old now, but my friend and colleague Christian Smith's The Sacred Project of American Sociology is a great way to enter the conversation on this crucial subject (especially his appendix on "critical realist personalism").
Meaningful school choice is endorsed clearly in the Church's social teachings. And, it enjoys strong public support, according to a new poll.
Particularly striking is the fact that large numbers of Democratic voters -- indeed, pretty much the same numbers as on the Republican side -- express support for school choice. And yet, it is a near article-of-faith among the Democrats' leadership and activists (in particular, the public-employee-union-members base) that choice-and-opportunity-enhancing measures must be opposed and resisted. A political-market failure, it appears.
Monday, December 2, 2019
Designed primarily for early-career academics interested in the field of religion and the rule of law from an international and human rights perspective, the Program has a legal focus, but applicants need not have a background in law.
The application period for this summer has just opened. More information can be found here.
December 2, 2019 | Permalink
Saturday, November 30, 2019
I'm posting here the text of my Foreword to Rabbi Dovid M. Cohen's excellent book We're Almost There: Living with Patience, Perseverance & Pupose (Mosaica press, 2016).
Jews often teach by telling stories and learn by listening to them. The best stories for teaching and learning are not parables—though there are many wonderful parables. Rather, they are true stories—stories of the lived experience of men and women. The book you hold in your hands is a collection of such stories. From them, you will derive wisdom, though I must warn you that you will shed a tear or two along the way. (Don’t worry, however, for you will also be rewarded by a chuckle now and then.)
Rabbi Dovid Cohen teaches us by sharing the stories of his life. He does more, however, than merely recount the facts. He interprets them and shares with us his reflections—invariably thoughtful and instructive—on their meaning. In doing so, he gives us a window into his life and, indeed, into his soul. But his stories are not just about him. They are about a people—his people, the Jewish people—a people whose rich traditions and deep spirituality, whose ancient books and modern sages, have shaped him from top to bottom. They give us a window into Jewishness.
Are these stories just for Jews, then?
No. Any gentile—at least any gentile who, like me, is willing to look up unfamiliar Yiddish or Hebrew words—has much to learn from Rabbi Dovid’s stories. And that is because the Jewish people, though “a people set apart,” are a people with a mission in the world—a divine mission. They are a people who are called to be “a light unto the nations.” And, true to that mission, Rabbi Dovid offers enlightenment—wisdom—to anyone who reads his stories thoughtfully and with a desire to learn.
Gentiles and Jews alike face the ordinary and sometimes extraordinary challenges that are the essence of leading a human life. We come into the world as children, full of wonder and needful of years of attentive care and nurturance. We are rational creatures, yet we have feelings and emotions. We experience joy and anger, happiness and hurt, affection and pain. We are required to earn our daily bread. We fall in love, marry, and have children of our own. As we watch with joy our sons and daughters grow into fine men and women, we watch with sadness our beloved parents grow frail with age. We have in laws. And neighbors. And friends. And people with whom we are not so friendly. We are, in a sense, locked into our own subjectivity, yet we can share our thoughts and feelings with others. We are individuals, yet members of communities. We are material beings, yet also spiritual beings to whom the Almighty has given a share of the divine powers of reason and freedom of the will. As the Bible says, “we are made in the image and likeness of God.” Yet unlike God, we are mortal—mere “dust of the earth.” And we live our lives in contemplation of our deaths.
These are, as I say, challenges common to all people in all times and at all places. Many traditions offer insights into them. But there is a special perspective—offering a unique body of wisdom—rooted in the experience of the Jews as God’s chosen people.
The great pagan philosopher Plato taught that the “unexamined life is not worth living.” Rabbi Dovid teaches through his stories that it is worth living an examined life. He has encountered life’s challenges—everything from changing professions to bringing up a disabled child—reflectively, looking for meaning, and finding it. How is it that he finds it, when so many others say they look for meaning yet find only meaninglessness? It is because Rabbi Dovid does not stumble around in the dark. He has a light. It is the light of faith. It is in the light of faith that what is invisible in the darkness becomes clear.
Yet the Rabbi’s faith is not an uncritical faith. Nor does it make all the answers to life’s challenges obvious or easy. It doesn’t solve the great and sometimes painful mysteries, such as why the beautiful and brilliant daughter of a neighbor suddenly dies at the age of eighteen. But faith sustains him—and, he teaches, faith can sustain us—in hope and in the redeeming power of the God for whom we, as spiritual creatures, long. As we come to terms with life’s challenges, seeking meaning in the light of faith, we find ourselves, in a sense, cooperating with God—praying, studying, following His commandments in caring not only for ourselves but for others. And in this cooperation, we experience not slavery, but rather freedom, the freedom that faith-sustaining hope alone can make possible.
Robert P. George, Princeton University
November 30, 2019 | Permalink
A recent issue of Commonweal includes a short piece by Max Foley-Keene called "Equality Isn't Cheap." Among other things, the author compares the "Nordic Welfare Model" to the "basic-security" model and argues that:
[a] welfare regime based on means-testing and income targeting . . . necessarily divides those who receive benefits from those who don’t. That leads non-recipients to grumble about having to subsidize an underclass of moochers, while recipients are subject to dehumanizing stigma. Such programs tend to be socially divisive and politically unstable. In contrast, universal programs promise to transcend existing economic cleavages and create broad social solidarity, because everyone benefits; this solidarity, in turn, helps protect universal programs from political attack.
He concludes by calling for "a politics that recognizes the satisfaction of social needs as a communal responsibility, that builds broad solidarity around preserving public goods, and that doesn’t fret over spending some cash."
Readers can decide for themselves whether the model Foley-Keene discusses is (in the United States) feasible or morally attractive. I did want to note, though, that from a Catholic perspective -- and notwithstanding the common view that the model or something like it is consistent with, or even supported by, the Church's social teachings -- it cannot be that the state assumes for itself the provision, and "crowd[s] out" non-state providers, the "basic necessity" or "social benefit" of "education." This is because parents have the moral, and in justice the legal, right to direct and control the education of their children and religious communities have the right to operate schools. As is stated in Dignitatis humanae:
Government, in consequence, must acknowledge the right of parents to make a genuinely free choice of schools and of other means of education, and the use of this freedom of choice is not to be made a reason for imposing unjust burdens on parents, whether directly or indirectly. Besides, the right of parents are violated, if their children are forced to attend lessons or instructions which are not in agreement with their religious beliefs, or if a single system of education, from which all religious formation is excluded, is imposed upon all.
Wednesday, November 27, 2019
Further to my post "Honest Journalism?" here is my correspondence with Thomas Edsall, beginning with his message requesting a transcript of my Catholic Information Center speech. (Update and correction: My reference to a paper of mine in the Cambridge Companion to the Philosophy of Law should have been to the Cambridge Companion to Natural Law Jurisprudence.)
From: Thomas Byrne Edsall
Sent: Wednesday, November 6, 2019 4:31 PM
To: Robert P. George
Subject: Request for speech transcript NYT
Dear Professor George
Could you possibly send me a transcript of your speech:
“Robert P. George Keynote Remarks | 2019 John Paul II New Evangelization Award Dinner”
New York Times Columnist
Columbia Graduate School of Journalism
From: Robert P. George
Sent: Wednesday, November 06, 2019 4:47 PM
To: Thomas Byrne Edsall
Subject: RE: Request for speech transcript NYT
Dear Mr. Edsall:
Here is a link to my remarks, which were posted at the Catholic law professors blog “Mirror of Justice”: https://mirrorofjustice.blogs.com/mirrorofjustice/2019/10/remarks-at-the-2019-catholic-information-center-annual-dinner.html
I’m taking the liberty of attaching a paper I have some years ago at a conference at the Vatican. It provides background for the after-dinner remarks I made at the event at the Mayflower Hotel.
It has been some years since we’ve been in touch. I hope you are doing well.
From: Thomas Byrne Edsall
Sent: Thursday, November 7, 2019 2:19 PM
To: Robert P. George
Subject: RE: Request for speech transcript NYT
Dear Professor George
Thanks very much for sending the speech and the earlier Vatican conference paper. Both are very interesting and raise a series of questions. I don’t pose these questions to dispute your statements; instead, I think your views need further explication.
You argue the faithful must have the courage to “boldly bear witness to truths that are unpopular among those controlling the levers of cultural, political, and economic power” and that they must have the courage to engage the battle.
First question: Can you be more specific about how to go about engaging the battle? Through some sort of dissent, or confrontation? Is persuasion adequate? How forceful do the faithful need to be? How do you win when you are outnumbered and in the minority?
Second, who are your adversaries? The overwhelming take-over of much of corporate America, including most especially the entertainment media, suggests that there is money to be made by accomodation to and promotion of a libertine culture. Is the free market and capitalism your enemy?
If you want to do battle with paganism, isn’t your primary opponent Donald Trump, who, more than any Democrat, would appear to personify paganism? If that is the case, how do you deal with evangelical protestants and many if their leaders who have abandoned many previously held moral standards for politicians and fallen overwhelmingly in line behind Trump.
Probably the most secular and non-believing constituency is made up of well-educated whites, including many Princeton students. A high percentage, if not a strong majority, support views on sexual behavior that you consider anathema. In terms of actual behavior, however, this group has shown a decline in divorce and out of wedlock childbearing, a goal I think you support, while these dysfunctional behaviors are now growing in the white working class, which is at least nominally more socially conservative. How do you explain this?
I would be grateful for you thoughts,
Thomas B. Edsall
New York Times Columnist
Columbia Graduate School of Journalism
Dear Mr. Edsall:
I’m returning from London and Oxford to the U.S. and I’ve taken a few minutes on the flight to reflect on your questions. What I can offer are reflections prompted by them, rather than answers to them. That’s because in most cases I don’t know the answers.
What I’m asking people—my fellow Catholics and others—to do is to think more deeply than ever before about what they believe and why they believe it so that they can go out into the world and give the reasons for their beliefs, especially those beliefs that are unfashionable and even reviled in the most affluent and influential sectors of society. That’s what I mean by “boldly bearing witness to truths that are unpopular among those controlling the levers of cultural, political, and economic power.” I conceive the “battle” as a war of ideas—ideas about what is right and wrong, good and bad, just and unjust. I believe in the luminosity and power of truth—I completely buy what Pope John Paul II said in his encyclical letter Veritatis Splendor—but truth does not go out and state itself. If it is to be heard, someone’s got to speak it. And where it is unpopular, where people can suffer adverse personal or professional consequences for speaking it, that takes courage. Some Catholics seem to think they are entitled to stay silent about such truths; they suppose it’s the task of the bishops to speak it to the culture. This reflects the sort of clericalism that the Second Vatican Council tried finally to shake off. It has done a lot of harm to the Christian religion (especially among the Catholics and Eastern Orthodox) historically and, as Protestants have long rightly pointed out, is unbiblical. Truth-speaking is every Christian’s job. (I actually think it’s every person’s job.)
How forceful am I asking people to be? Well, I don’t think we need a lot of screaming and shouting and I’m certainly against any form of intimidation or violence. Period. Because I believe in the luminosity and power of truth, I don’t mind people speaking it gently—and I think it should always be spoken lovingly. On my understanding (and the historic Christian understanding—shaped not only by the Bible but profoundly by Aristotelian philosophy mediated especially through the great medieval Christian philosophers and theologians) moral truth is what it is because human nature and the human good are constituted in a particular way. Moral norms are shaped by the requirements of human flourishing (what Greeks like Aristotle had in mind in speaking of eudaimonia). Even those truths that strike people in a given set of cultural circumstances as challenging truths, hard truths, demanding truths—if they be truths at all—are, from the point of view of the tradition(s) of thought from which I speak, grounded in humanistic ideals—the desire for people to flourish. It is important to see that on this account (whether in its Christian or Greek articulations) flourishing is not a matter of doing what one wants, or getting what one desires, or even being whom one chooses to be (in the modern quasi-existentialist or contemporary identitarian senses). There is an objective standard of flourishing (because there is a determinate human nature and, correspondingly, human good). At the same time, within a broad range, individual lives (and communities) reasonably differ because the human good, though determinate is variegated. Most of our choices are among reasonable, morally upright options—and in making them each of us fashions a life, and we human beings taken altogether fashion billions of interestingly different human lives (and we create very different cultures). But some of the choices we face are between what is morally right and what is morally wrong. I’ll attach a paper of mine from the Cambridge Companion to Philosophy of Law that expands on what I’m saying here.
Of course, there are reasonable people of goodwill who disagree with the Catholic/biblical/natural-law understanding of morality, and they should be engaged in respectful dialogue and civil debate. I’ve written about this and done a great deal of speaking about it (both in formal classroom settings and at public events) with Cornel West. I’m against treating intellectual opponents as enemies. I regard them as partners in the truth-seeking project. One of the questions you asked was “Who are your adversaries?” Well, as I suggested in my CIC remarks, quoting at length Professor Mark Tushnet of Harvard, they are people who, for example, want to treat devout Catholics and Evangelicals, observant Jews, faithful Mormons, Muslims, and other believers in traditional moral norms “the way we treated the defeated Japanese and Germans after World War II.” They are people who join Beto O’Rourke in wanting to selectively yank the tax-exempt status of churches who refuse to conform to secular progressive ideology on questions related to marriage, sexual morality, and the sanctity of human life. They are the woke (of whom President Obama recently and rightly complained) who want to shut down dissenting speech on the campuses of colleges and universities that advertise themselves as non-sectarian and open to the full and free range and exchange of ideas, and turn these institutions into engines of indoctrination that would embarrass even most religiously-affiliated colleges and universities. They are people who want to bully dissenters into silence or acquiescence, and who smear decent, honorable people as the equivalent of racists. They are people who put words like religious liberty and conscience in quotation marks (“religious liberty,” “conscience”) and who would force decent, honorable Christians, Jews, Muslims, and others to choose between violating their consciences (no quotation marks) and giving up their businesses or professions. They are people like the mayor of Atlanta who fired Kelvin Cochran and the people at Mozilla who did in Brendan Eich. They are people like those who concussed the liberal international relations scholar Allison Stanger at Middlebury or those who threatened the Bernie Sanders-supporting Brett Weinstein and Heather Heying, eventually driving them out of Evergreen State, because they were not woke enough.
Your question about capitalism is, of course, an old one, but remains a good one. The concern you mention was among the considerations at the heart of Catholicism’s historic wariness about capitalism. And it is famously why Irving Kristol gave capitalism (only) two cheers. This is a question I need to give a good deal more thought to, but I’m inclined to think Kristol got it right. The market is a good thing, but it is not good-in-itself. It is a means, not an end. It can lift people out of poverty (good!) and it can generate trade in drugs, porn, and even human beings (very bad!). The market itself must be regulated, and moral considerations need to be among those taken into account in deciding what regulations are reasonable and desirable. Here’s how I put it in the attached paper on “Constitutional Structures”:
Surely a conception of the common good that is serious about the principle of subsidiarity will respect private property and take care to maintain a reasonably free system of economic exchange—that is to say, a market economy, though it will not suppose that nothing should be publicly owned (think of public highways, for example, or municipal buildings, parks, prisons, public schools, and the like) or that the market may not legitimately be regulated to protect public health, safety, and morals (to again use the classic common law formulation of the purposes of law and government), prevent exploitation and abuse, monopolization and the restraint of trade, price gouging, predatory lending, and other unfair practices, and so forth. We should not suppose that socialism and laissez-faire are the only, or only principled, options.
You asked about Donald Trump and paganism. I’ve never bought the argument that many Evangelicals and conservative Catholics make for supporting Trump. I understand it, I think. And I don’t think that people who make it are idiots. (A lot of my relatives and friends where I grew up in West Virginia support Trump—and they are decent, intelligent people.) My own judgment, though, is that it’s unsound. The essence of the argument is that Trump is King Cyrus: “Yes, he’s a pagan; but God is nevertheless using him to protect us against the hegemonic forces that seek our destruction.” Trump is transactional. That’s it. As far as I can tell, he has no very firm convictions (except perhaps that free trade is bad). Whatever the ultra-embarrassing Paula White (“the President’s pastor”) may say, he’s the same Donald Trump who used to proclaim his allegiance to “New York values” and support dilation and extraction (“partial-birth”) abortion. Was it Palmerston who said, “countries don’t have permanent friends, they only have interests”? Well, President Trump doesn’t have permanent beliefs, he only has interests. And for now it is in his interest to fulfill many of his promises to social conservatives (no public funding of abortion or abortion advocacy; conscience protection; judges). But the deal seems to be that social conservatives, in return, go silent on policies (and other things about him) that they in fact don’t (or at least shouldn’t) like. I agree with the Trump supporters that, with the Democrats moving further and further leftward (beyond Obama and way beyond Clinton), the election of a Democratic President and Congress would have catastrophic consequences for religious conservatives and things we deeply believe in. My long-term (or perhaps even medium-term) worry, though, is that the things we believe in will be discredited by the taint of association with the President. Here are a couple of items pertaining to my own attitude towards President Trump: https://www.newsmax.com/Headline/catholic-leaders-oppose-trump/2016/03/07/id/717955/ and https://www.wthrockmorton.com/2016/06/20/evangelicals-meeting-with-trump-brothers-and-sisters-what-else-do-you-need-to-know/ (please see the quotation of me in the article).
You asked about who I regard as my adversaries and I offered some thoughts about that. It might help to illuminate things if I said who I regard as my allies: certain Evangelical thinkers and leaders, including white Evangelicals like Russell Moore and African-American Evangelicals like Rev. Eugene Rivers; Jewish thinkers and leaders like Rabbi Meir Soloveichik (who spoke at the CIC dinner: https://cicdc.org/video/rabbi-dr-meir-soloveichik-remarks-2019-john-paul-ii-new-evangelization-award-dinner/?fbclid=IwAR2wriam0TUxCbBDLmRh0b628bQa6nHJneoZ1XKKodfU-6As-Ettgn-pfks) and Rabbi Jonathan Sacks; Mormons like Katrina Lantos Swett and Matthew Holland; Muslims like Shaykh Hamza Yusuf and Ismail Royer; and fellow Catholics like Mary Ann Glendon and Archbishop Charles Chaput. These are people who share my view that we are in a tragic dilemma politically and the most important thing any of us can do is try to keep our wits about us, and to quote myself (but I think they’d all agree), “bear faithful witness”—which means openly speaking the truth as best we understand it no matter whether the ox being gored is Democratic of Trumpian.
You asked about Belmont and Fishtown. I’m far from entirely sure what to make of it. The only thing I’m confident about is that Murray is right that we need the folks in Fishtown to practice what many preach (but fail to practice) and we need the folks in Belmont to preach what many practice (but fail to preach—and sometimes even preach against). As early as 1965 Moynihan saw that the material consequences of sexual anarchy and the fatherlessness that comes in its train (as family breakdown and the failure of family formation become more common) would bear down hardest on the poorest and therefore most vulnerable sectors of the community. What he didn’t foresee, I think, was that what began in largely minority sectors would be replicated in white rural and working class communities. But it’s scarcely a surprise that it did. Anyway, people in Hollywood and other celebrities can, in a sense, afford to live the lives I read about on the covers of People magazine when I’m in the check-out line at the grocery store. People in Watts—or in West Virginia—can’t. And yet, as you say, and as Murray, Brad Wilcox, David and Amber Lapp, and other sociologists have shown, the recent trends are for the affluent to lead more conventional lives—with even the divorce rate for them (after rising for many years) now falling. Are these the children of divorce, who want to make sure their children do not go through the same trauma? Are they people who have figured out that divorce, out-of-wedlock child bearing, etc. tend, even among the well-off, to damage people’s financial standing and even lower their standard of living? Is there some other explanation? (Typically in these matters the explanations are “multi-factorial”.) The sociologists will have to figure it out and let us know.
Well, those are my thoughts. As I said, they are necessarily more in the mode of reflections than answers. The older I get, the odder, or at least more complicated, the world seems to get, and the more impervious it seems to become to being figured out—at least by me.
November 27, 2019 | Permalink
- A Catholic Debate over Liberalism
- Charitable Giving and Taxes
- The Church would not exist without women
- Fixing Law Schools
- "Saving Democracy from the Managerial Elite"