Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, May 21, 2020

Additional Thoughts on the Catholic Bishops of Minnesota and Their Decision to Reopen Churches in Defiance of Minnesota’s Emergency Executive Order

In his recent piece in Law & Liberty, Mark Movsesian made the following observation: “For the moment ... there is this striking fact: churches’ opposition to state-ordered closings seems to turn, not so much on the particulars of worship itself, but on attitudes about hierarchy and government authority more generally.”  In other words, more hierarchical religions appeared to be less willing to defy (or even challenge) state orders.  This statement was observably true just a week ago.  However, it left me wondering just how momentary this “moment” might be. Yesterday, we received some clarity.

On May 20th, the Catholic Bishops of Minnesota formally announced their intent to defy Governor Walz’s Emergency Executive Order.  Their letter states in part:

We are blessed to live in a nation that guarantees the free exercise of religion.  This right can only be abridged for a compelling governmental interest, and only in a way that is narrowly tailored to be the least restrictive means of achieving the desired end.  That is why a large majority of states now allow in-person religious services, including many states that had previously suspended in-person religious services.  We think that the executive order issued last Wednesday fails this test.  An order that sweeps so broadly that it prohibits, for example, a gathering of 11 people in a Cathedral with a seating capacity of several thousand defies reason.  Therefore, we have chosen to move forward in the absence of any specific timeline laid out by Governor Walz and his Administration.  We cannot allow an indefinite suspension of the public celebration of the Mass.

The bishops’ decision follows their attempts to work alongside the Governor’s administration to find a suitable alternative to the current policy.  All six bishops have also announced that they will continue their dispensation of Sunday Mass, so parishioners need not attend if they feel unsafe.  The state-wide unity of the bishops is particularly notable, and in this regard, similar to the protests made by the Italian Bishops Conference.

Of course, the vast majority of Catholic dioceses continue to comply with state orders, even going to great lengths to do so.  For example, in the Diocese of Arlington (my own diocese in Northern Virginia), Bishop Burbidge has begun reintegrating half of his diocese as part of Governor Northam’s “Phase 1” plan, while continuing to comply with the Governor’s prolonged Stay-at-Home Order in the other half.  Other bishops have publicly voiced their support for state authorities.  Archbishop Lori, the Archbishop of the Baltimore Archdiocese and former head of the Ad Hoc Committee for Religious Liberty of the United States Conference of Catholic Bishops (USCCB), stated—“I have no sense whatsoever that the authorities, especially here in Maryland, have any animus against our faith.  I do have a sense from my personal conversations with those who have to make these decisions … that they want to keep people safe.”

A general trend seems to be to give local pastors discretion in the reintegration of their church, consistent with diocesan guidance.  However, to put it lightly, this guidance is often less than clear—individual bishops frequently provide their own recommendations and requirements, but also defer to outside guidance.  Additional guidelines for local pastors can include mandatory (but often changing) state orders, guidance from the USCCB, and CDC guidance (although notably these most recent CDC guidelines did not include any recommendations for faith-based groups).

All of this is to say that reopening won’t be simple.  Professor Movsesian’s observation was true just a week ago; religions more inclined towards hierarchy did indeed appear to be less opposed to state orders.  Now, that moment looks as if it may be beginning to pass.  While it obviously remains unlikely that Catholic dioceses will oppose state orders en masse, it seems increasingly likely that select dioceses will.  In fact, the complexity of the Church’s structure may itself begin to contribute to the likelihood of opposition within.

May 21, 2020 | Permalink

Minnesota bishops tell governor worship will resume; cite lack of ‘clear roadmap’

Minnesota’s Catholic bishops have informed the state’s governor that they will return to in-person Church services later this month in defiance of an executive order imposing strict limits on houses of worship. 

In a letter sent to Governor Tim Walz on May 20, Archbishop Bernard Hebda of Saint Paul and Minneapolis said that services would resume on May 26, two months after they were first voluntarily suspended due to the COVID-19 pandemic. 

Full article at Crux.

May 21, 2020 | Permalink

Wednesday, May 20, 2020

"Religious Freedom and Polarization: A Cause--and a Cure?"

That's the title of a short piece I did some weeks back for the Berkley Center at Georgetown (and somehow forgot to hawk here on MOJ at the time). It talks about polarization during the Reformation and then today:

[V]igorous protection of religious liberty is intended to calm fears and reduce polarization, by giving people of fundamentally different deep beliefs ample space not just to hold their beliefs but also to live consistently with them....

       Fear of the other side likewise drives today’s polarization. How, it’s asked, could 81% of white evangelicals vote in 2016 for a man with glaring character defects? A Wheaton College survey of those Trump voters found that religious liberty worries ranked third or fourth most frequent as the chief reason for their vote—higher than abortion and LGBTQ issues. The solicitor general’s statement [in Obergefell, refusing to rule out conservative institutions being stripped of tax exemptions] and the [2016] California college bill [which would have stripped modest-income students at conservative religious colleges of their state grants] received extensive evangelical attention.

       Religious liberty can calm such existential fears and reduce polarization. But it will instead aggravate polarization if it simply replicates struggles over underlying issues. Religious liberty must be strong enough to protect unpopular views, and it must recover some bipartisan status.

May 20, 2020 in Berg, Thomas , Current Affairs , Religion | Permalink

Two Video Programs on Religious Liberty

1. The Murphy Institute at St. Thomas has posted video from Asma Uddin's excellent presentation, "When Islam is Not a Religion: Inside America's Fight for Religious Freedom." I was glad to moderate the session, which concerns respecting religious liberty for Muslim Americans and for everyone and is based on Asma's book of the same title. A variety of good questions from a large online audience (going online creates real possibilities for increasing outreach for organizations that are outside the Beltway hothouse). My own recent thoughts on religious freedom for Muslims, evangelical Christians, and everyone are here.

2. The Berkley Center at Georgetown sponsored a video discussion of the issues concerning  COVID-19 and religious worship and other gatherings, with Marty Lederman, Asma Uddin, Robin Fretwell Wilson, and me. Thank you to Michael Kessler for arranging and leading the discussion, to the Berkley Center for sponsoring it, and to my friends and co-panelists for a lively, productive discussion.

May 20, 2020 in Berg, Thomas , Current Affairs , Religion | Permalink

Church Closings During the Spanish Flu

Religion scholar David Bains, a former colleague of mine, has linked on his excellent blog ("Chasing Churches") to this article about the public-health orders closing DC churches during October 1918, the deadliest spell of the 1918-19 pandemic. 
 
When churches were ordered closed, after several other categories of entities had been closed, the association of mainline Protestant clergy adopted a resolution "cheerfully complying with the request of the Commissioners." The tone of that resolution, I suspect, reflects that that particular group of churches in that era was less suspicious of civil government, because more comfortable with their own place in the culture, than a number of Protestant churches are today (although today too, the vast majority of houses of worship have not only compiled with but have refrained from criticizing closing orders).
 
Churches did, however, move to outdoor services, although there was some controversy about that. And once the deaths began to decline, and the authorities began allowing other entities to open, clergy began to protest that they should be too, for various reasons: 
  • the closings were "a certain infringement in spirit and effect of the free exercise of religious liberty";
  • "[b]ecause the purposes of church assemblages are such as to entitle them to be the very last to be absolutely forbidden by the civil authorities"; and
  • "In the influence of the churches upon the minds and souls of men, in quieting through strengthened faith in God the panic and fear in which epidemic thrives, the churches are potential anti-influenza workers, fit to co-operate helpfully with our doctors and our nurses."

The arguments have a more Protestant-Establishment vibe to them, as you might expect, but they overlap in concrete ways with arguments being made today.

 

May 20, 2020 in Berg, Thomas , Religion | Permalink

Tuesday, May 19, 2020

Oregon Supreme Court puts hold on judge’s ruling declaring governor’s coronavirus orders ‘null and void’

In a late Monday ruling, the Oregon Supreme Court stepped in to put a hold on a dramatic decision by an eastern Oregon judge that declared not only Gov. Kate Brown’s restrictions on church gatherings “null and void” but all her “Stay Home Save Lives’’ coronavirus emergency orders.

 

May 19, 2020 | Permalink

Saturday, May 16, 2020

A Plea for Philosophy at Liberty U.

Liberty University has shuttered its department of philosophy. This is a mistake. I implore the University's administration and trustees to reverse course.

Liberty, of course, is a controversial school. It is a proudly and unabashedly evangelical Christian institution. Its founder, Rev. Jerry Falwell, was controversial. Its current president, Jerry Falwell, Jr. is controversial. The moral values it upholds and stands for are, today, alas, controversial. But it has provided many young people with an excellent liberal arts education. I know this to be true because I have met a number of them and even taught or informally advised a few as graduate students. I also know it to be true because I have visited the University and talked with students.

My visit was last year, together with my beloved friend and teaching partner Cornel West. We spent a day-and-a-half meeting faculty, staff, and students. We did not meet President Falwell--he was not on campus--though we were assured that far from opposing our visit he enthusiastically endorsed it. (Falwell is best known as a supporter and confidante of President Trump. Both Cornel and I, from our different perspectives, have been critical of the President.) We did a formal presentation before a massive audience but then had opportunities to talk with students individually and in small groups. These conversations were unsupervised by faculty or administrators. The students could speak freely to us, and they certainly availed themselves of that freedom. We were, to say the least, impressed.

We were impressed by the desire of these young men and women to explore the deepest questions, and to explore them in a critical, unconditional way. They wanted to know the best that has been thought and said by the greatest minds--from the pagan Greek and Roman thinkers, to the Islamic and Jewish as well as Christian philosophers and theologians of the Middle Ages, to the grand figures of Enlightenment and modern thought. And it was clear from our discussions with these students that their professors in philosophy and the other humanities disciplines had indeed exposed them to the ideas of many of these thinkers--to their considerable intellectual benefit.

Cornel and I came away from our visit to Liberty with esteem for its students and faculty and respect for the University. We said so publicly--even though that is, to say the least, an unfashionable thing for professors at Harvard and Princeton to say. (We're expected to disdain institutions like Liberty University, pity the students, and hold the faculty in something not too distant from contempt.) And we came away thinking of ourselves as having a relationship with the folks at Liberty--a bond. We want Liberty to flourish. We want it to be the best it can be. We want it to continue to provide a true and fine liberal arts education for students who are attracted to the religious and moral environment it offers.

And so I hope that the administration and trustees of Liberty will hear my plea as coming from a friend--someone who wishes you well and believes in your mission. Humanities are central to liberal arts learning and philosophy is the heart of the humanities. You cannot have a true liberal arts college or university that does not have a vibrant philosophy department or some equivalent institutional way of teaching students what is taught in departments of philosophy. Indeed, philosophy is where it all began--in Plato's Academy. Philosophy gives us the tools and motivation and rational justification for asking and seeking by proper methods honestly to answer all the questions that we categorize in other disciplines, from history and economics to chemistry and astronomy.

I know that some people do not regard philosophy as "practical" (though in truth it is the most practical of all academic disciplines). And I am aware that the need to cut costs often tempts people to cut things that seem "impractical." But far from abolishing philosophy as a course of study at Liberty, you should be strengthening the department (which was already a good one) and encouraging more students to enroll in its courses and even major in the field.

I am not condemning or scolding. We're all human and we all make mistakes and misjudgments. I've made plenty, believe me. But mistakes can often be rectified. And this one is in that category. There is no shame in saying, "well, we've given the matter some more thought and concluded that for Liberty to be the best Christian university it can be, we need to retain our philosophy department. The questions that philosophy explores are questions our students need to be wrestling with." Far from being embarrassing, such a decision would be applauded by everyone who understands the value and importance of liberal arts learning and who believes that Liberty should be a great Christian liberal arts university.

May 16, 2020 | Permalink

Friday, May 15, 2020

Webinar on Disability-Based Rationing of Health Care

Terrence J. Murphy Institute for Catholic Thought, Law and Public Policy

Hot Topics: Cool Talk

Who Matters? Who Cares?

Disability-Based Rationing of Health Care

Friday, May 22, 11am-12pm CST

Livestream Webinar

Register

 

Join us for a conversation between a disability advocate and a medical ethicist exploring the legal and ethical implications of policies for allocating scarce medical resources during the COVID-19 pandemic, focusing on their impact on the elderly and persons with disabilities.

Registration is required.  A link to join the webinar will be emailed to registrants on Friday, May 22 at 9am CST.

1.0 Elimination of Bias CLE credit has been applied for.  Please include an Attorney Number with registration to claim CLE credit.

Speakers

Charlie Camosy grew up in the cornfields of Wisconsin, but he is now an Associate Professor of Theology at Fordham University in the Bronx, where he has taught since finishing his PhD in theology at Notre Dame in 2008. Among other places, his published articles have appeared in the American Journal of Bioethics, the Journal of Medicine and Philosophy, the Journal of the Catholic Health Association, the New York Times, the Washington Post, the Los Angeles Times, the New York Daily News and America magazine. He is the author of five books. Too Expensive to Treat? (Eerdmans) was a 2011 award-winner with the Catholic Media Association, Peter Singer and Christian Ethics (Cambridge) was named a 2012 "best book" with ABC Religion and Ethics, and For Love of Animals (Franciscan) was featured in the New York Times. Beyond the Abortion Wars (Eerdmans), was also a 2015 award-winner with the Catholic Media Association. His most recent book, Resisting Throwaway Culture (New City), was published in May of 2019. In addition to advising the Faith Outreach office of the Humane Society of the United States and the Children's Hospital of New York, Camosy received the Robert Bryne award from the Fordham Respect Life Club and received the 2018 St. Jerome Award for scholarly excellence from the Catholic Library Association. He has four children, three of whom he and his wife Paulyn adopted from a Filipino orphanage in June of 2016.     

 

Bud Rosenfield headshot

Barnett (Bud) Rosenfield is a supervising attorney with the Minnesota Disability Law Center and Mid-Minnesota Legal Aid.  For most of the past 22+ years, he has focused on individual and systems advocacy on Medical Assistance, social services, and civil rights issues for persons with disabilities.  He currently oversees the Disability Law Center's Community Services & Integration and Policy teams.  Prior to joining Legal Aid, Bud represented individuals in employment discrimination and civil rights cases.  An avid baseball fan, he is trying to patiently await for the games to, once again, begin...

May 15, 2020 in Schiltz, Elizabeth | Permalink

Religious Liberty in COVID-19’s Wake

In the past few weeks, a handful of churches—almost all of them Evangelical—have filed lawsuits challenging the constitutionality of state and local bans on religious gatherings. More lawsuits will likely follow in the weeks ahead. Full article by Mark Movsesian here.

May 15, 2020 | Permalink

Thursday, May 14, 2020

Philanthropy & the Common Good

MOJ readers know me as one of the blog editors, and as the Program Director of Notre Dame Law School’s Program on Church, State & Society. It’s a great job, and it’s thrilling to be a part of NDLS during a time when so many exciting things are happening.

I also have the pleasure of serving in a concurrent role with Notre Dame’s political science department where I teach an undergraduate course called Philanthropy & the Common Good. Teaching the course is a true privilege. We explore the common good from multiple viewpoints and get to put our theory to practice by making real grant awards to deserving nonprofits in greater South Bend.

For those interested, I published a brief article in Notre Dame Magazine today.

May 14, 2020 | Permalink