Mirror of Justice

"How 'Religious' Is a 'Religious Employer'? Church History and the Future of American Religious Liberty Litigation"

My student, Dennis Wieboldt -- a JD/PhD candidate in History at Notre Dame -- has a new paper up at SSRN (with the title in the title of this post!).  Here is the abstract:

Since the Supreme Court’s 1990 decision in Employment Division v. Smith to immunize “neutral” and “generally applicable” laws that burden religion from strict scrutiny, judges and scholars have become increasingly attuned to the challenges posed by First Amendment judicial balancing.  To some, Smith’s enduring virtue is that it provides judges with a clear way to avoid the seemingly inappropriate weighing of interests that was once required under the strict-scrutiny regimes of Wisconsin v. Yoder and Sherbert v. Verner.  To others, however, the jealous protection that strict scrutiny provides to religious claimants is normatively desirable and merely requires judges to embrace a tiers-of-scrutiny framework that is not all too unusual in constitutional adjudication writ large.  In light of Fulton v. City of Philadelphia, the scholarship on both sides of this debate has increased in volume and complexity.

 

This article challenges those writing both in favor of and in opposition to the use of strict scrutiny in religious liberty litigation to (re)consider how the discipline of church history can aid judges in the disposition of particular cases and controversies arising under the First Amendment.  To do so, this article takes as its principal subject a near-decade-long dispute that remains ongoing in New York about whether the Empire State’s Superintendent of Financial Services can require Catholic dioceses and social service agencies to include abortion coverage in their healthcare plans.  Setting aside the fact that this case—Roman Catholic Diocese of Albany v. Vullo—may prompt the Supreme Court to again reconsider Smith, the contours of this litigation reveal how the concerns about judicial balancing that have motivated many critiques of First Amendment strict scrutiny are overstated.  What, one might ask, is the cause of this overstated concern?: A failure among many to recognize that the insights of church history can often enable judges to fairly assess the substantiality of regulatory burdens imposed on religious claimants, and therefore evaluate whether the government has a constitutionally sufficient justification for pursuing its preferred regulatory course.

 

Though there is bound to be continued disagreement about the degree to which asserted government interests subjected to strict scrutiny are, in fact, “compelling,” and whether the means used to advance those interests are, in fact, “least restrictive,” scholars with disparate interpretive priors should uniformly acknowledge that church history can (if not also should) serve as a primary resource for those adjudicating First Amendment disputes.  As Jack Balkin has argued in his recent study of the “uses of history in constitutional interpretation,” historians are taught to “relish and respect” “ambiguity” and the “complexity and multivocality of the past.”  Thus, church historians—who are trained to take seriously the ambiguities and complexities of religious past—are well-equipped to aid judges faced with particular cases and controversies arising under the First Amendment.  Amidst broader debates within the legal profession about the appropriate uses of history and tradition in constitutional adjudication, perhaps this modest proposal for greater dialogue between church historians and legal practitioners and scholars can move our jurisprudential conversation one step forward.

Like the man says, "download it while it's hot!"

The Religiously Affiliated Law School Conference: "Forming Lawyer-Stewards"

 

This year's (well, it's biennial) Religiously Affiliated Law Schools conference will be held on September 12-13, 2024, at Fordham.  The theme is "Forming Lawyer-Stewards:  The Special Role of Religiously Affiliated Law Schools."  Fordham's new president, Tania Tetlow, will be the keynote.

More information, including registration (there's CLE available!) is here:

Join us at the 2024 Religiously Affiliated Law School (RALS) biennial Conference, delving into the vital concept of stewardship — a principle deeply rooted in many of the world’s major religions. Our aim is to explore the critical role of lawyers as stewards of both our communities and the world. Employing a dialogue-based approach, the conference shall bring attendees together in small but diverse working groups where they will discuss how stewardship intersects with key areas such as the environment, criminal justice, and immigration. We look forward to welcoming students, legal scholars, law school administrators, and legal practitioners' voices as we explore the concept of lawyer-stewards.

The Republicans and the Pro-Life Cause in the Age of Trump

I published the following reflection a couple of months ago as part of a First Things magazine symposium on politics after the Dobbs decision. Regrettably, what I said has been fully confirmed by the events unfolding as part of the Republican National Convention, especially the re-drafting of the Republican Party's platform.

Donald Trump, in announcing his support for the IVF industry and his rejection of any federal legislation to protect babies from the lethal violence of abortion, has made it clear that he is not pro-life. Nor is he exactly pro-choice. He is, quite simply, pro-Trump. As anyone who has followed Trump’s career knows, the most fundamental thing about him is that he is transactional. The art of living is the “art of the deal.”

Trump’s message to his pro-life supporters boiled down to (and here I’ll translate for you), “Hey look, gals and guys, I upheld my end of the deal I made with you in 2016. Roe v. Wade is gone.” But now, with the demise of Roe activating the Democratic Party’s extremely pro-abortion base, a politician’s being genuinely pro-life—working for actual legal protection for unborn babies—appears to be a heavy political liability. So, Trump’s message is this: “I’ve got to get elected to save the country, so I’m not going to do anything to protect unborn babies. Whatever the states want to do about abortion—permit it, forbid it, permit it up to fifteen weeks, permit it up to birth—is fine with me.”

Trump has, effectively, endorsed Stephen A. Douglas’s concept of “popular sovereignty.”

So, it is incumbent on pro-life Americans to acknowledge the tragic fact that we do not have a pro-life presidential candidate representing a major political party in 2024. Trump has made it clear that he won’t help the pro-life cause, even incrementally, and Biden is utterly beholden to the abortion lobby.

Where does that leave the pro-life movement?

Whether Trump wins or loses, the future of the pro-life cause depends on whether there is a prominent Republican leader who is prepared to do today what Abraham Lincoln did in the face of the barbarism so fiercely defended by the Democrats of his day: defend the dignity of all members of the human family. With the pro-abortion base of the Democratic party so energized, and with a compliant media doing their bidding at every turn, it would take genuine courage—and high statesmanship—for a politician to provide the leadership that our cause needs if it is to weather hard times and build a broader base of support.

Robert P. George is McCormick Professor of Jurisprudence at Princeton University.