Mirror of Justice

The Right to Religious Freedom: Extension or Erosion?

Interesting chapter by Rafael Domingo.

Abstract: 

In this chapter, I argue for religious freedom as a first-class right, and I criticize the views of some distinguished scholars who react against traditional conceptions of religious freedom and deny the right to any special protection of religion by legal systems. I focus primarily on Ronald Dworkin and Brian Leiter’s views and arguments. I conclude that Dworkin’s approach to religion belittles the idea of God. Yet conviction about the existence of God and the holding of profound ethical and moral convictions are not so independent as Dworkin argues. Leiter’s approach belittles the idea of religion, which cannot be reduced to a matter of commands, a lack of evidence, and consolation. I argue why religion is more than a matter of conscience and a personal decision about ultimate concerns and questions. Religion cannot be reduced to moral conscience, let alone ethical independence in foundational matters. An increasingly globalized and pluralistic society demands a more comprehensive approach that fully protects all religions and creeds.

Link:https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3912926&dgcid=ejournal_htmlemail_law:religion:ejournal_abstractlink#

The Popes as Guardians of Human Dignity with Cardinal Gerhard Müller

Cardinal Gerhard Müller will speak at Notre Dame on Wednesday, October 27th. 

Carey Auditorium, Hesburgh Library
4-5:30 p.m. | Wednesday, October 27

Cardinal Gerhard Müller is the former Prefect of the Congregation of the Doctrine of the Faith. He has written more than 600 works on topics of theology and the Catholic Church and is the editor of the 16-volume The Complete Works of Joseph Ratzinger: Pope Benedict XVI.

He will speak on the Pope’s role in protecting human dignity as part of his tour promoting his new book, The Pope: His Mission and His Task, and copies of his book will be available for purchase at the event.

Oral argument yesterday a glimpse of Supreme Court's post-Roe abortion-law docket

The Supreme Court heard oral argument yesterday in Cameron v. EMW Women's Surgical Center. The case involves the constitutionality of a Kentucky law regulating abortion. But abortion barely came up at all. That's because the question presented has nothing to do with the constitutionality of the Kentucky law at issue. The question, instead, is about the ability of Kentucky's Attorney General to intervene and defend the law further after a different state official declined to press the defense any further. 

One way to think about yesterday's argument is as providing a glimpse of what the Supreme Court's post-Roe abortion-law docket might look like.

If the Supreme Court reverses the Roe/Casey regime, the Court will still hear cases that involve abortion laws. But those cases will not be about first-order questions of personal autonomy. They will instead be about the scope of Congress's power to regulate commerce, choice of law questions, and so on. They will implicate trans-substantive bodies of doctrine rather than adding to the accumulation of abortion-specific caselaw.

 

Indigenous Peoples' Day

I don’t have family roots in Minnesota, with one exception: during the 1940s, my grandfather was the manager of the Firestone store at 1107 Harmon Place in Minneapolis – i.e., the future site of the law school where I serve as dean. That very modest historical connection to the land where I work today can be a source of encouragement during hard days. Whatever I’m dealing with, it’s helpful to imagine the perseverance of my grandfather, plucked from Ohio to a strange new city and tasked with selling tires in the face of wartime rubber rationing.

 

Of course, in the long history of human beings living and working here, my roots through that Firestone shop are very shallow. This land was not a significant part of my story, or of my family’s story. Our language, religious practices, and way of life stayed intact when my grandfather was transferred to another store in another state.

 

Tomorrow is Indigenous Peoples’ Day, when we celebrate and reflect on the many Indigenous communities and cultures that have shaped our nation. One way we do that is by caring about – and being honest about – our history, including the history of the land where we live and work today. St. Thomas Law is on what was Dakota land until that land was ceded to the United States through the treaty of 1851. That treaty called for the payment to the Dakota of what amounted to 12 cents per acre. Treaty negotiations were driven by the American Fur Company, which had been providing supplies to the Dakota in exchange for fur. As the lands were overhunted and European demand for fur dropped, the system collapsed and the Dakota were left owing huge debts to American Fur. Debt payments (inflated by the company) were taken out of the land proceeds before anything was given to the tribe. Essentially, the fur traders were bailed out by the U.S. government, the U.S. government got 24 million acres of land, and the Dakota got almost nothing. This was all made possible by the strategist behind the arrangements: Henry Sibley, who was a partner and agent of the American Fur Company, the future governor of Minnesota, and a lawyer. We need to know these stories.

 

Like just about everything else in our country today, the choice to celebrate Indigenous Peoples’ Day rather than Columbus Day is itself a political minefield. It’s worth pointing out, though, that even the older holiday’s creation emerges from injustice. As Italian immigration to the United States increased in the late 1800s, so did persecution of the new arrivals. In 1891, anti-Italian sentiment boiled over in New Orleans, and a mob broke into the jail, where they beat, shot, and hanged 11 Italian-American prisoners. The Italian government called for reparations and cut off diplomatic relations. In an attempt to appease Italy, in 1892 President Benjamin Harrison proclaimed a “Discovery Day,” recognizing Columbus as “the pioneer of progress and enlightenment.”

 

We are stewards of the rule of law, and that means we also have to be honest and unflinching students of our history.  Under the gaze of previous generations, what does it mean – what should it mean – to be called to help form the next generation of lawyers and leaders?  Are we being faithful to the witness of those who came before us?

Podcast on Religious Exemption From the New York COVID Vaccine Mandate

Mark Movsesian and I discuss a set of challenges on the basis of religious scruple to the recently imposed New York COVID vaccine mandate in this new podcast.

Along the way, we chat about some of New York Governor Kathleen Hochul's recent remarks that "[t]here are not legitimate religious exemptions because the leaders of all the organized religions have said there's no legitimate reason." Also: "I'm not aware of a sanctioned religious exemption from any organized religion"; and, "In fact, they are encouraging the opposite. Everybody from the pope on down is encouraging people to get vaccinated." As it happens, Mark and I have expressed some sympathy, in different fora and for somewhat different reasons, for this general position as respects religion's legal definition. But on the existing doctrine, it may run into some problems.

Revisiting the “Separation of Church and State” in Our Time of Deep Division

Religious freedom does not matter because the Constitution protects it; instead, the Constitution (like modern human-rights law) protects it because religious freedom matters. It is not a gift from the government; it is a limit on the government. Every person, because he or she is a person, has the right to religious liberty—to embrace, or to reject, religious faith, traditions, practices, and communities. This freedom is enjoyed by, and is important to, religious believers and nonbelievers alike. Religious freedom, protected through law, helps both individuals and communities to flourish. It protects the “private” conscience and also promotes the “public,” common good. Religious or not, devout or not, we all have a stake in the religious-liberty project, and in the success of what Thomas Jefferson called our First Amendment’s “fair” and “novel” experiment.

This article is based on Constitution Day remarks Garnett delivered on September 23, 2021, at The Citadel in Charleston, South Carolina.

Full text: https://www.religiousfreedominstitute.org/cornerstone/revisiting-the-separation-of-church-and-state-in-our-time-of-deep-division

New issue of Journal of Law & Religion

A new issue of the Journal of Law & Religion has been published, and it's available for free (here) until November 15.  The issue features an article from Nate Oman and book review contributions from Frank Ravitch, Cathy Kaveny, Robin Fretwell Wilson, Perry Dane, and many others.  Definitely worth checking out. 

Eric Hageman responds to Hadley Arkes on constitutional interpretation

In recent months, in various forums, there have been interesting and important conversations and debates -- involving many Catholic legal scholars, including Gerard Bradley, Robert George, Sherif Girgis, John Finnis, Adrian Vermeule, and several other MOJ contributors -- about constitutional interpretation, "originalism" in its various stripes and also its rivals, the role of the common good and of natural law in judicial decisionmaking, the (in)adequacy of liberal proceduralism, and so on.  The upcoming Dobbs case, in particular, has been central to these conversations and debates.  Recently, Hadley Arkes (in the Wall Street Journal) and Ed Whelan (at the Bench Memos blog) had some back-and-forths on these topics.  (Go here for some links.) 

My friend and former student, Eric Hageman, wrote up a short response to Arkes's WSJ piece, and -- with his permission -- I'm posting it below:

My friend and mentor Hadley Arkes writes again to advance his vision for “a better originalism,” decrying the “truncated originalism” of yesteryear and arguing it is insufficient for conservative judges to reject Roe merely because the Constitution contains no right to abort one’s child.  Instead, we are told, judges must reach past written law and decide abortion cases based on the immorality of abortion.

Professor Arkes’s proposal ignores the importance of judicial fidelity to written law, and his attacks are effective only against a third-rate version of originalism.

Though Professor Arkes does not tell us how, precisely, the “better originalist” judge would behave, I assume he would decide cases by referring directly to moral reasoning, as a supplement to (if not outright replacement for) the written law.  Applied to, say, Dobbs, the opinion of Arkes, J., would uphold Mississippi’s abortion restriction on the ground that one has no moral right to take a life, setting aside the Constitution’s silence on abortion, the possibility that the due process clauses protect unborn people, and the historical and moral contexts of both.

I doubt I’d have any qualms with Justice Arkes’s moral reasoning, but it would have no business in the U.S. Reports.  We are a constitutional republic, which means we’ve delegated certain duties to certain offices and their holders.  We have given Congress power to make law.  (More accurately, we’ve transmitted some legislative power to Congress from the states.)  We’ve given federal judges power to resolve cases or controversies.  Sometimes, a case requires a judge to decide whether a statute violates the Constitution, which is the superior law.  Judges act within their authority by applying the Constitution over the inferior law (or by leaving the inferior law alone if it does not violate the Constitution).  When a judge decides this conflict by relying on anything but the Constitution and statutes (whose meanings are, of course, informed by moral and historical context), she places that consideration above one or the other, contrary to her constitutional power.

These principles are simple and easy to understand, only a step removed from Schoolhouse Rock’s three-ring circus.  But, as I’ve written elsewhere, it’s hard to overstate the scandal that takes place when a judge violates these principles, relying on extralegal considerations to “interpret” law.  It disserves litigants, actual and potential, who rely on written law to situate their affairs.  It tells other judges—including those whose relationship with moral principles and the natural law is more tenuous than Professor Arkes’s—that they, too, may supplement imperfect statutes with their own moral reasoning, which they will not recognize as inferior to Professor Arkes’s.  Most importantly, it strips us, the American people, of our right to constitutional republicanism.  Justice Scalia’s dissent in Obergefell is right:  This isn’t merely about results.  It’s not even about the words on the page.  It’s about sovereignty, about who governs you.

That’s why originalism and textualism are so important: they preserve our constitutional order and our right to govern ourselves.  And really, they are no more complicated than the order they protect. Textualism is the simple proposition that statutes mean what their words were understood to mean at the time they were enacted.  Originalism is what we call the same proposition applied to the Constitution.  Both principles reflect the facts that (1) our laws are written words and (2) words have objective, ascertainable meaning.  Viewed like this, theories of textualism are so obvious they hardly deserve a name.

As far as I know, Professor Arkes has yet to cope with this humble account of originalism and textualism.  As Ed Whelan argues in his own response, the version of originalism Professor Arkes attacks instead is unrecognizable to most conservative judges.  He aims his fire first at Bostock, claiming that Justice Gorsuch’s opinion for the Court would be corrected “most decisively” by the moral truth that sex is unchangeable.  But in the same breath, Professor Arkes seems to acknowledge that no single educated reader in 1964 would’ve thought “discrimination on the basis of sex” meant “discrimination on the basis of sexual orientation” or “discrimination on the basis of sex identity.”  Textualism asks precisely that question, and, applied properly, would solve Bostock to Professor Arkes’s satisfaction.  Later, Professor Arkes claims that Loving v. Virginia, which struck down interracial-marriage bans, has no textual basis in the Constitution, which says nothing of marriage.  This simply ignores the Equal Protection Clause, which no textualist would do.

I’m deeply disturbed by this theory of “better originalism,” in part because it echoes some of the ugliest features of other recent postliberal arguments.  For one, it tends to judge originalism (and itself) only for the results it achieves, ignoring the way it achieves them.  But then, despite this consequentialism, the theory cannot account for the results it will yield in the hands of its enemies.  Moreover, its proponents hardly ever tell us what affirmative behavior they’d like to see; they simply reject the status quo, optimizing rhetorical leeway.  Most concerning, it reflects and appeals to a disturbing cynicism (which I am sincerely, absolutely certain Professor Arkes does not himself share): that neutral principles are fairytales, that we should emulate progressives’ success in setting fire to antiquated notions of pluralism and liberalism.  Applied here, that “their” judges have had their fun, and now it’s time for “our” judges to have theirs.

The bitter irony is that the neutral principles Professor Arkes decries would have saved us from the cases he decried.  Those principles, intelligently and faithfully applied, would have yielded the results Professor Arkes wants, perhaps indicating that our written law is enough to protect us from progressivism.  Herein lies yet another feature of contemporary postliberalism (again, one I’m certain Professor Arkes does not himself suffer): extraordinary ingratitude, a desire to kill the goose that laid the golden egg.  Much like centuries of liberal democracy and American capitalism have produced extraordinary prosperity and personal liberty, forty years of textualism and originalism have produced a federal judiciary that reliably rejects progressive excesses and focuses instead on fidelity to the law and the rights of those it exists to serve.  Where our liberal democratic principles have failed, it has been because those in power reject, undervalue, and undermine these principles, ignorant of the miraculous conditions in which we find ourselves.  But the answer to those failures is more capitalism, more republicanism, more pluralism, and more liberalism.

So too here.

* * *

Eric Hageman is an attorney in Washington, D.C.

Our deepening polarization

On Thursday, the University of Virginia released the results of a survey that offers important but jarring insights. Among the findings:

 

• 41% of Biden voters and 52% of Trump voters at least somewhat agree that red states / blue states should secede from the union to form their own separate country.
• 46% of Biden voters and 44% of Trump voters at least somewhat agree that it would be better for America if whoever is President could take needed actions without being constrained by Congress or the courts.
• 62% of Biden voters and 82% of Trump voters at least somewhat agree that “our country needs a powerful leader in order to destroy the radical and immoral currents prevailing in society today.”
• 56% of Biden voters at least somewhat agree that there’s no real difference between Republicans and Fascists, and 76% of Trump voters at least somewhat agree that there’s no real difference between Democrats and Socialists.
• 75% of Biden voters and 78% of Trump voters at least somewhat agree that Americans who strongly support the opposing party have become “a clear and present danger to the American way of life.”
• 80% of Biden voters and 84% of Trump voters at least somewhat agree that elected officials from the opposing party are a “clear and present danger to American democracy.”

These numbers should be deeply concerning. The past two years have underscored an unpleasant reality: civilization is thin. The rule of law is a project that each generation must choose to embrace, and that project is dependent on trust. If those who disagree with me politically are a clear and present danger to my way of life, an ongoing commitment to build relationships across difference seems quaintly out of touch at best. And if my opponents are not just wrong, but evil, then the emerging bipartisan trend of protesting at the homes of judges and elected officials is not a cause for worry, but a necessary example of our obligation to oppose existential threats to our democracy by any means necessary.

 

If we prioritize debating contested issues in ways that reflect mutual respect, we stand accused of dangerously elevating form over substance. After all, we’re not dealing with the Democrats / Republicans of past eras – we’re dealing with Socialists / Fascists! We learned our lesson about dealing with these people in The Cold War / World War II: brute force is the only path forward. Once we’ve eliminated the existential threat, we can get back to building relationships across difference.

 

For those of us who are law professors, with this level of mutual antipathy so prevalent in American society, how are we supposed to go about preparing our students to flourish? It’s not that all of our students fall neatly into these warring camps – many do not. But they’re all being formed against the backdrop of these warring camps. Many of our students have no interest signing up for an all-out red-versus-blue battle, but they know they might easily be drawn into the daily skirmishes if they say something that can signal membership in the opposing camp, whether they intend to or not. Their understandable response is to disengage, pull back, and remain silent about issues that matter greatly to our shared future. This withdrawal precludes the opportunity for deeper relationships and new perspectives.

 

I spend a lot of time talking about these issues in my role as a dean, not only because I want my law school to be a strong, welcoming, and diverse community in which our students can flourish, but because our willingness or unwillingness to build relationships with those whose ideas we oppose is a powerful harbinger of what is to come for our world.

 

The new poll results should not be a discouragement, but a reminder: we are not audience members, passively observing the state of our country. We are all active participants, and we need to listen, learn, and lean in. We must model what it means to disagree vigorously within relationship, not as a precondition to relationship. Will these individual efforts, standing alone, heal the fracturing that has accelerated dramatically in our nation in recent years? Of course not, so let’s call it what it is: a good place to start.