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").