Mirror of Justice

Movsesian on Law, Religion & COVID-19

There's a new issue of the Journal of Law & Religion available to read online for free, and it includes an intriguing article by friend of MoJ Mark Movsesian, "Law, Religion, and the COVID-19 Crisis."  From the abstract:

As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the United States specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID-19 crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-century pandemic.

Christian nationalism and the rule of law

I've posted on SSRN my chapter on Christian nationalism from a new book on the January 6 insurrection.  You can read the whole thing here.  The abstract:

Current threats to the rule of law in the United States emerge, at least in part, from a nationalism shaped by a distinctly American vision of Christianity. Defenders of the rule of law must therefore respond in terms that confront the religious dimension of the threat directly. Religiously affiliated law schools should be key contributors to this conversation, modeling a faith-shaped discourse that avoids invoking Christianity as a conversation-stopper, as a signal of self-righteousness, or as a means to stir up hatred of “the other.” How might the public witness of our faith support, rather than impede, the rule of law?

Lincoln's Humility

This week I read a report about the trend of Americans choosing to relocate in order to live in places that are more closely aligned with their political beliefs. This adds to the “big sort” that has been occurring for years. (From 1992 to 2016, the number of extreme landslide counties — i.e., those decided by margins exceeding 50 percentage points — increased from 93 to 1,196.) A new poll shows that Americans’ trust in the scientific and medical communities varies dramatically based on one’s political affiliation, adding to the partisan gaps we already knew about regarding trust in other social institutions. We’ve always disagreed about particular issues, but those disagreements have intensified, widened, and coalesced around shared identities that shape the ways in which we view the world.

 

The clash in worldviews can be seen in our reactions to the world around us. How do we feel about recent protests that shut down streets and highways in Minneapolis to bring attention to police practices deemed unjust? How do we feel about recent protests that shut down streets and highways in Ottawa to bring attention to COVID mandates deemed unjust? I’m guessing most of us feel differently about one versus the other, and that’s understandable – we will disagree about injustice, just as we disagree about appropriate tactics employed in pursuing justice. The problem is when that disagreement spirals into dehumanization – i.e., that those who hold different worldviews are not just wrong, but “other.”

 

There is a better way, and it was modeled 158 years ago by Abraham Lincoln, whom we celebrate tomorrow on Presidents’ Day. His second inaugural address, delivered near the end of a brutal and bloody war, showed a degree of humility that may not even count as a political virtue in today’s climate. Lincoln observed that both sides in the Civil War “read the same Bible and pray to the same God and each invokes His aid against the other.” This was a simple recognition of our shared humanity and shared faith, even at a time when we were killing each other in a conflict over the deeply immoral practice of slavery. Lincoln did not accuse those fighting for the Confederacy of not being “real Christians,” he did not claim that God had personally assured him that the Union’s cause was just, and he did not assert that God's plan for civilization hinged on the outcome of the war. Instead, he recognized that those on the other side were just as sincere in their faith as he was.

 

Did Lincoln’s humility weaken his resolve to win the war and end slavery? Not at all. Did his empathy for those supporting the Confederacy lead him to look the other way and ignore their support of a deeply unjust institution? Hardly. Humility and empathy shaped the way he engaged his opponents, not his commitment to the moral claims underlying the conflict. I encourage us to reflect on ways we can model Lincoln’s humility: not pulling back from our commitment to justice, but not permitting our commitment to justice to obscure the humanity of those on the other side of the struggle.

Christian nationalism and American evangelicalism

Christian nationalism – i.e., the merging of Christian identity and American identity – concerns me, and I hope it concerns you too.  When we treat our preferred political positions as matters of divine revelation that are not subject to rational debate with our fellow Americans, that’s a dangerous place for a democracy to be.  However, I am also concerned by folks who portray Christian nationalism as a problem that belongs to white American evangelicals.  It’s not that simple.  Here’s why.

First, we have to be precise when we talk about “evangelicals.”  Do we mean people who identify culturally as evangelicals or people who actually participate in evangelical Christianity?  One of the unfortunate consequences of the great tribal sorting that has occurred between red and blue America over the past twenty years is that our political invocations of religion may have only a tenuous connection with actual religious practice.  For example, last week Ryan Burge posted survey data showing that, in 2008, 18% of white self-identified evangelicals never attended church.  In 2020, that had increased to 28%.  And among self-identified evangelicals who never attended church, while 36% were Republicans in 2008, that had increased to 65% by 2020.  For Republicans – who make up the majority of Christian nationalists – there are political and cultural reasons to identify as “evangelical” that have nothing to do with one’s religious beliefs or practices.

Second, a person who engages in Christian religious practices is less likely to embrace beliefs that correspond to Christian nationalism.  Andrew Whitehead and Samuel Perry show that, while Christian nationalists are more likely to report negative attitudes toward racial and religious minorities, those attitudes have an inverse relationship with religious practice.  For example, the more one adheres to Christian nationalist views, the less willing one is to acknowledge the existence of police discrimination against Black Americans.  However, “as people more frequently attend church, pray, or read their sacred scriptures, they become more likely to recognize racial discrimination in policing.”  The same pattern holds regarding attitudes toward immigration, the environment, refugees, and Muslims.  In light of the data, Perry and Whitehead conclude that “the association between Christian nationalism and . . . attitudes toward racial and religious minorities tends to work in the opposite direction than the association between private religious practice and these same things.”

Is American evangelicalism blameless for the rise of Christian nationalism?  Hardly.  But we need to be precise in talking about the challenges our nation faces.  Christian nationalism is a threat that is associated with white American evangelicals but is, in reality, mitigated by the actual practice of evangelical faith.

Christian nationalism and January 6

As we observe the 1-year anniversary of the deadly attack on the U.S. Capitol, I encourage American Christians to remember that pushing back against Christian nationalism does not require a retreat to some sort of imagined secular space — the resources for resistance are available within Christianity itself.

 

But first we have to be clear that Christian nationalism is a perversion of our faith and a threat to the rule of law. Among the heartbreaking images that linger from Jan. 6, 2021: the "Jesus Saves" banners being held by rioters entering the Capitol, right alongside the Confederate flags, nooses and Holocaust sweatshirts. The attack followed weeks of "Jericho marches," prayer meetings and rallies premised on the idea that God ordained Donald Trump to serve eight years as president, and that those who stood in the way were attempting to thwart God's will for America.

 

If we don't want the lessons from that day to be obscured by partisan talking points, we need to be clear about why Christian nationalism is dangerous and what healthy Christian political engagement looks like.

 

Andrew Whitehead and Samuel Perry provide the most comprehensive account of Christian nationalism, which they describe in Taking America Back for God as "a cultural framework that blurs distinctions between Christian identity and American identity, viewing the two as closely related and seeking to enhance and preserve their union." When we merge our identity as Christians with our identity as Americans, we invest political positions with a level of certainty and fervor traditionally reserved for matters of religious faith. Christian nationalists are no longer debating ideas about which reasonable people can disagree; they are defending Christianity against its enemies. That's a dangerous place for a democracy to be.

 

If American Christians are not happy with the voices that loudly proclaim direct knowledge of God's will for American politics (often arising on the right), and we're not ready to agree with the voices that insist faith has only a marginal role to play in our political discourse (often arising on the left), what's the path forward?

 

Christian nationalism has exemplified three characteristics that healthy Christian political engagement must avoid.

 

First, Christian faith should not be a conversation-stopper. Christians have long used religious language to advocate for particular policies, and there is nothing wrong with doing so, provided the religious language is an entry point, not the entirety of the argument. "The Bible says it, I believe it, that settles it," may be a pithy and popular bumper sticker, but it's not fertile ground for the dialogues on which our democracy depends. The rule of law requires that the lawgiver offer reasons that are rationally accessible, even if not agreeable, to all. On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to disagreement.

 

Second, Christian faith should not be a rationale for self-righteousness. When Christians refuse to recognize the possibility that our political tribe is capable of evil, we are denying the reality of sin. The Christian nationalist narrative does not portray political opponents as fellow citizens with different ideological commitments; rather, they are enemies engaged in spiritual warfare. When outraged Christian nationalists attacked the Capitol, they may not have seriously considered the possibility that then-President Trump and his media champions were exaggerating and fabricating reasons to doubt the election's outcome. Their example is a cautionary lesson for citizens across the political spectrum. Self-righteousness distorts our perception of reality and precludes the mutual recognition of fallibility on which the give-and-take of democracy depend.

 

Third, Christian faith should not stoke fear of "the other." In contrast to the radical "love thy neighbor" teachings of Jesus, the rhetoric of Christian nationalism engenders loyalty by stoking fear. Christian nationalism is about power — to be won and wielded against external threats. Relying on fear and finger-pointing as a political weapon creates an us-vs.-them mindset. This threatens the rule of law, which aims to guarantee that all are treated fairly, that laws operate prospectively as guides to conduct, and that the application of laws does not depend on a group's popularity. By building a political movement on the scapegoating of particular groups, Christian nationalists' rhetoric creates tension with these guarantees.

 

Christian nationalists are espousing a version of the faith that has profound and dangerous consequences for the rule of law. We cannot defend the rule of law by relying solely on arguments that fail to address the foundational claims from which threats emerge. Christian nationalism is one such threat, and we need to respond — as Americans and, perhaps more importantly, as Christians.

 

(A version of this appears in the Minneapolis Star-Tribune and is based on the chapter I contributed to "Beyond Imagination?: The January 6 Insurrection," a new book published by West Academic.)

David Link and the meaning of vocation

Growing up, I thought my career choice – a singular choice, made only once – was a direct and public reflection of my relationship with God.  If my faith in God was strong enough, it meant I should probably be a missionary or a pastor.  One problem: I knew enough missionaries and pastors to know that I didn’t want to be either one.  I contemplated attending graduate school for theology rather than going to law school, as if that might be closer to a true “Christian” vocation.  When I moved from legal practice into the academy, I started writing about the intersection of law and religion.  Not quite ministry, but close enough to count in God’s eyes? 

Obviously, it’s taken a while for me to understand that vocation is more about becoming the person God has called me to be, less about my career choice.  Or as Thomas Merton put it, “discovering vocation does not mean scrambling toward some prize just beyond my reach but accepting the treasure of true self I already possess.”

Which brings me to David Link, who died on Thursday.  He was a tax attorney who left private practice to teach, eventually serving as Notre Dame Law School’s dean for nearly 25 years.  He left Notre Dame to become the founding dean of St. Thomas Law, helping launch the school.  Soon after Dave left St. Thomas, his wife Barbara passed away, and he went to seminary, becoming a Catholic priest at age 71.  Fr. Link devoted the rest of his days to prison ministry, working primarily at a maximum-security prison in which most of the inmates were convicted of murder.

I wonder, if we could ask David Link to describe his vocation while he was sitting in his office at Winston & Strawn parsing new tax regulations, then pose the same question to Dean Link as he welcomed the inaugural JD class to St. Thomas, and to Fr. Link as he counseled an inmate serving a life sentence, would his answers have changed?  Did his vocation shift at each new step of his career, or did his vocation actually remain constant?  His perception of the ways his gifts could best help meet the world’s needs evolved over fifty years, no doubt.  But his defining vocation was not tax attorney, law school dean, or even Catholic priest.  His defining vocation, I suspect, was his heeding of the prophet Micah’s call “to act justly and to love mercy and to walk humbly with your God.”

As we observe All Saints' Day, I encourage us to reflect on vocation, both in our own lives and in the lives of our students.  What difference might it make if we view vocation less as a one-time career choice and more as a commitment to being the person God has created us to be?

Rest in peace, David Link – may your memory be a blessing.

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?

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. 

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.

Initiative on Restorative Justice & Healing at St. Thomas Law

St. Thomas Law opened its doors twenty years ago last month, and one way we are celebrating is by redoubling our commitment to live out our distinctive Catholic mission in ways that meet the needs of our society.  Last week, we launched the Initiative on Restorative Justice & Healing, a coordinated effort to leverage our expertise and resources to help restore relationships fractured by injustice, with a particular focus on racial injustice, sexual abuse by clergy and institutional failures within the Catholic church, and societal polarization.  Directed by my faculty colleague Fr. Dan Griffith, this project is a great example of our mission in action, demonstrating the importance of integrating legal acumen with empathy, concern for the whole person, and the transformative power of human connection.  Fr. Griffith and Professor Hank Shea, a former federal prosecutor, have been co-teaching a course on restorative justice for several years, and we will look to expand those efforts to include a hands-on restorative justice practicum course, community partnerships, externships, lectures, conferences, training sessions, and broader visibility into ways that restorative justice practices can help bring healing to our communities. 

With an understanding of justice as right relationships, we believe that this work can be a core component of Catholic legal education. 

This video (created by Hunter Johnson) is a helpful introduction to the role that restorative justice has played in the resolution of clergy sexual abuse cases in our Archdiocese, and this video of last week's launch event provides a preview of the Initiative's potential impact.  Restorative justice pioneer and former Wisconsin Supreme Court Justice Janine Geske will chair the Initiative's advisory board.