Friday, November 17, 2017
New Empirical Study on Religious Freedom Cases Post-Hobby Lobby (by Luke Goodrich and Rachel Busick)
Two attorneys at the Becket Fund for Religious Liberty — Luke Goodrich and Rachel Busick — have just posted one of the first empirical studies of federal religious freedom cases since Hobby Lobby.
Some critics of Hobby Lobby predicted that the decision would open the floodgates to a host of novel claims, transforming religious freedom from a shield for protecting religious minorities into a sword for imposing majoritarian values. But this study finds those dire predictions to be unsupported. Instead, it finds that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. The study also highlights several interesting doctrinal developments in recent litigation over RFRA, Trump’s travel ban, and the Establishment Clause.
The most intriguing empirical research tells us something new, such as that the conventional wisdom is mistaken or overstated. That is true here, as Goodrich and Busick reach this conclusion:
[Hobby Lobby] has not prompted a flood of new litigation by Christians or for-profit corporations. If anything, its main effect has been to provide more protection for religious minorities like the Native Americans who won the right to use eagle feathers in McAllen, or the Muslim prisoner who won the right to grow a beard in Holt. These religious minorities were the main religious liberty claimants before Hobby Lobby, and they remain the main religious liberty claimants afterwards. Ironically, then, the main beneficiaries of the win for Christian claimants in Hobby Lobby may be non-Christian religious minorities.
You can find the full article here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3067053. I highly recommend it! I’m see that it has already drawn more than 150 downloads. Add to the statistics by downloading it yourself today.
Wednesday, November 15, 2017
There is now online a podcast conversation on religious freedom that I recently did with the Rev. Leith Anderson. Leith is the president of the National Association of Evangelicals, a wonderful and prolific writer on Christian living, and the former senior pastor of Wooddale Church in the Twin Cities. He has been interested in religious-freedom issues, and commenting thoughtfully on them, for some time. It was great fun to have this conversation with him. A sample comment of mine, in response to Leith's question "Why should Christians work on protecting people of other faiths in the U.S.?":
Two kinds of reasons. One is a matter of principle: Christians know that a commitment of faith, a relationship with the Divine, is a matter of the heart; it can’t be real and valid if it’s coerced by government. Human dignity means that the soul should be free to seek and respond to God, even if its response is mistaken. The second reason is pragmatic: If Christians want to preserve freedom for their own religious exercise, they have to recognize it for others. You won’t get sympathy for your plight if you don’t show it for others.
That's the title of a new book by Cathy Kaveny. The subtitle: Christian Moralists and American Legal Thought. The book, published by Oxford University Press, "proposes new methodological approaches to Christian ethics-using law as a source and conversation partner; shows how religion can move beyond treating law as a locus of the culture wars to seeing it as a source of moral knowledge and wisdom; and demonstrates how examples from secular law can help us integrate special ethics, like medical ethics, with broader questions of social justice." You can read about the book--and about Cathy--here. Highly recommended:
"Cathleen Kaveny's new work brilliantly demonstrates not only that law can be a fruitful conversation partner for theological ethics, but that it is a necessary one. Her mastery of the fields of law, ethics, and theology is marshaled throughout as she probes perennially vexing problems and explores new questions. Highly original, sometimes provocative, always illuminating, Ethics at the Edges of Law is a tour de force." --Linda Hogan, Professor of Ecumenics and former Vice-Provost of Trinity College Dublin
"Ethics at the Edges of Law is one of the most important recent books at the intersection of law and theology. Kaveny's thoughtful and at times unconventional engagement with some of the major twentieth-century figures in these two disciplines offers glimmers of both tragedy and hope-and a reminder that our lived experiences unfold in the shadow of both."--John D. Inazu, Sally D. Danforth Distinguished Professor of Law and Religion, Washington University in St. Louis
"Cathleen Kaveny is one of the most important scholars in the interdisciplinary field of law and religion since the field began to flourish about forty years ago. Ethics at the Edges of Law is a superb book. In it, Kaveny succeeds in doing precisely what she set out to do, namely, 'jump start . . . a complementary interdisciplinary conversation . . . centered in religious studies and theology and reaching out to the legal field.'"--Michael J. Perry, Robert W. Woodruff Professor of Law, Emory University
Tuesday, November 14, 2017
[The Siege of Lisbon, by Roque Gameiro (1917)]
David Brooks has published an insightful warning of the mutually repelling characteristics of the true believers on both extremes of the political spectrum today. In today’s New York Times (here), Brooks calls this behavior the “Siege Mentality,” which “starts with a sense of collective victimhood” that feeds “a deep sense of pessimism” and “floats on apocalyptic fear.”
This approach is seductive, offering a kind of a false high that, like other misguided addictions, proves self-destruction: “The odd thing is that the siege mentality feels kind of good to the people who grab on to it. It gives its proponents a straightforward way to interpret the world — the noble us versus the powerful them.” But, in the end, “[g]roups smitten with the siege mentality filter out discordant facts and become more extreme versions of themselves, leading to further marginalization.”
Worst of all, those who surrender to the Siege Mentality lose their own souls, becoming the opposite of what they sincerely believed themselves to be at the beginning. “Evangelical Christians, for example, had a humane model for leadership — servant leadership — but, feeling besieged, they swapped it for Donald Trump, for gladiator pagan leadership.”
As Catholics, we need to remember that faithfully standing by what we think is right need not fall into a hateful disregard for those who disagree or a willingness to compromise our principles by temporary political alignments with those whose past conduct and present behavior display contempt for those very principles.
A bracing, sobering read, here, about the state of Catholic higher education and some of the forces that are shaping it. I share many of the author's concerns about many of the particulars mentioned, though I think it sweeps a bit too broadly in places and also neglects the good things that are happening -- and, in many respects, the Catholic-identity improvements that have happened in recent years -- at my own University of Notre Dame. The author writes:
Still, despite all the evidence that most Catholic colleges and universities have lost their way, cause for hope exists in the flourishing of Catholic colleges—Christendom, Franciscan, Ave Maria, the University of Dallas, Wyoming Catholic, John Paul the Great, St. Thomas More College in New Hampshire, California’s Thomas Aquinas, and others—that remain committed to a Catholic identity.
I share this admiration for much of what's happening at these newer, smaller, intentional Catholic colleges. At the same time, "cause for hope exists in the flourishing" of, e.g., the McGrath Institute for Church Life, ND Vision, Echo, the Alliance for Catholic Education, the Program on Church, State & Society, the Center for Ethics & Culture, the Tocqueville Program, etc. As I've said before, if one cares about Catholic higher education (and, in my view, we all should), then one should care about, and pray for, Notre Dame (and not just the Fighting Irish!).
Monday, November 13, 2017
I've recently posted on SSRN my forthcoming article, "A Putative Right in Search of a Constitutional Justification: Understanding Planned Parenthood v Casey's Equality Rationale and How it Undermines Women's Equality." In the article, I argue that women's equality is the key interpretative lens through which to understand Casey's controversial reaffirmation of Roe but one that has not been understood adequately by those most critical of Casey. The article aims to fill the void - and specifically critiques the "reliance" arguments made in Casey. It could be understood as a companion to my 2011 HJLPP article, "Embodied Equality."
The Federalist Society at Harvard and Yale law schools have had me to campus to speak on the article in recent months. I'll be out at Stanford in February doing the same.
Also, happy to announce I am beginning a year-long fellowship at Harvard Law School in February as a Visiting Scholar, under the faculty direction of Mary Ann Glendon. I am working to complete a book on women's rights that most prominently features her work.
Friday, November 10, 2017
Two days ago, Rick offered reflections on the successful confirmation process of Amy Barrett to the 7th Circuit. This morning in the New York Times, former federal judge Shira Scheindlin (now on the board of the Lawyers Committee for Civil Rights under Law) serves notice that the false assertions against Barrett will continue long after her swearing-in. Scheindlin's op-ed attacks several of Trump's lower-court nominees and appointments, including, sadly but I guess inevitably, Barrett.
There's the same old, willfully misleading claim that "[i]n a 1998 article, [Barrett] criticized the Supreme Court justice William Brennan for saying that his oath to uphold the law trumped any obligation to his Roman Catholic faith." For the umpteenth time, what Barrett and her co-author criticized (in a very indirect, gentle way) was Brennan's apparent suggestion that he would stay on a case and rule in a way that violated his faith. Barrett wrote then, and said this fall, that in case of an unavoidable conflict, the Catholic judge should follow her faith--and the law--by using the option of recusal that the law itself offers. That is the exact opposite of that Scheindlin and the other critics imply: that Barrett advocated ruling based on one's faith rather than the law. A former federal judge, more than anyone, knows better.
There's other wrong or distorted stuff in there, too, about Barrett's views on precedent. The same stuff that's been rebutted before.
So far as I can tell (and I haven't looked at it closely), Trump's nominees include a few strange and dubiously qualified names. (As well as some very strong ones, including David Stras, whose nomination to the 8th Circuit remains tied up.) Barrett is plainly among the very strong ones. But some of the critics will keep trying to stick her in the dubious group, not because of what she would actually do on the court of appeals, but because of their fears that (1) she is a dangerous symbol of a highly qualified woman who takes her Catholic faith (including the controversial parts) seriously and (2) she might get on a short list for the next step up.
As Marc mentioned the other day, the annual Fall Conference sponsored by the Notre Dame Center for Ethics & Culture is in full swing. (It's always a wonderful event.) I had the pleasure of moderating a panel of law-professor-Criminal-Law-profs, including our own Marc DeGirolami and Cecelia Klingele, and also MOJ-friends John Stinneford and Meghan Ryan. It isn't always the case that multi-speaker panels actually cohere with each other, or with the panel's ostensible theme, but this one definitely did.
Meghan provided an overview and orientation of the various purposes and goals of punishment; John reflected on what exactly "punishment" is and the extent to which it is (or should be) connected to moral blameworthiness (and not merely social control); Marc discussed the different ways we have talked about, and talk about today, "evil" (with reference to, inter alia, Arent, Mill, and Stephen); and Cecelia rounded things out with some cautionary notes about the moves in Criminal Law and corrections in the direction of algorithm-driven risk-assessment and big-data-dependent predictive policing. A good time was had by all!
Thursday, November 9, 2017
In Iron Curtain: The Crushing of Eastern Europe, 1944-1956, Pulitzer Prize-winning historian Anne Applebaum tells the simultaneously captivating and tragic story of the degradation of Eastern Europe as it was absorbed into the Soviet empire after World War II. In little more than a decade, the vibrant and rich cultures of many Eastern European nations were stripped to the bone so that they could be reincarnated as totalitarian systems beholden to a communist ideology.
In a 2014 post here at Mirror of Justice about Applebaum’s award-winning book, I highlighted the antipathy of Soviet
occupiers to the Catholic Church in Poland and Hungary, precisely because “[r]eligious leaders were a source of alternative moral and spiritual authority.” Following the Leninist path taken earlier by the 1917 Bolsheviks, the Soviet occupiers of Eastern Europe were bent on “crushing” civil society, banishing tradition, suppressing diversity of thought, and burning down all institutions. Only then could they sow the new communist seed into the freshly scorched earth.
Earlier this week in the Washington Post, Anne Applebaum drew upon her considerable historical wisdom to warn us about the resurgence of Bolshevism with its nihilistic attitude of destruction in today’s western society and in the United States. In a column titled 100 Years Later, Bolshevism is Back. And We Should Be Worried, Applebaum reminds us that the ascendance of Bolshevism in Russia in 1917 came suddenly and with little warning. The economic and cultural devastation that Lenin and the Bolsheviks brought to Russia came not through a popular movement but rather by the calculated extremism of a chaos-worshipping minority. The popular and moderate regime that initially succeeded the Czar was suddenly swept away by the intransigent Bolshevik leaders, who brooked no compromise, reveled in smashing everything before them, and boldly seized power for a fanatical minority.
The signature characteristic of Bolshevism was then (and remains today) not its socialist ideology as much as its uncompromising hatred of anything and everything that stands in the way of absolute power. The Bolshevik game-plan is a cynical play for power by fomenting chaos and disrupting civil society. Thus, as Applebaum explains, the neo-Bolsheviks of today can be identified not so much by liberal/left or conservative/right ideology but by their origins on “the extremist fringes of political life” and their desire “to overthrow existing institutions.”
To be sure, heirs to Bolshevism can be found on the far left of American political life, especially on campuses where the Marxist fringe, as described by Applebaum, “policies the speech of its members, fights to prevent students from hearing opposing viewpoints, and teaches a dark, negative version of American history, one calculated to create doubts about democracy and to cast shadows on all political debate.” But while we should be troubled by this development and worry about its foothold on the edges of the Democratic Party, it has not yet tasted power.
By contrast, the Bolshevism of the American right has grasped political power. The key strategy of these modern Bolsheviks of the right is what Applebaum calls their adoption of “Lenin’s refusal to compromise, his anti-democratic elevation of some social groups over others and his hateful attacks on his ‘illegitimate’ opponents.” As Applebaum notes, Stephen Bannon has
been rather candid by expressly comparing himself to Lenin, saying he has the same goal of “bring[ing] everything crashing down.” Consider the deliberate chaos promoted by the Trump White House team, the pattern of falsehoods in perpetuating political myths, and the constant attempts to delegitimize political opponents while provoking outrage by a small base of true believers. As a particular worry to people of faith and conscience, these neo-Bolsheviks are “often not real Christians, but rather cynics who use ‘Christianity’ as a tribal identifies, a way of distinguishing themselves from their enemies.”
The Russian Bolshevik revolution in 1917 shocked all observers with its sudden fury and unexpected success, while lacking anything approaching majority support in Russia. If we are not careful, so too the Trump insurgency might still succeed in its authoritarian agenda despite waning support from a tiny minority of the population. As Applebaum warns, we must not be complacent:
At the beginning of 1917, on the eve of the Russian revolution, most of the men who later became known to the world as the Bolsheviks were conspirators and fantasists on the margins of society. By the end of the year, they ran Russia. Fringe figures and eccentric movements cannot be counted out.
Wednesday, November 8, 2017
Thanks to Marc for posting about the Notre Dame Center for Ethics and Culture conference on Good and Evil. Sounds like a great criminal-law panel. As Marc notes, I'll be presenting (in a different panel) on the concept of irony in religious-freedom disputes, somewhat along the lines that I and Marc discussed on the blog a while back.
I'm delighted to be participating in the annual conference of the Notre Dame Center for Ethics and Culture, which begins tomorrow and runs through Saturday. This year's theme is "Through Every Human Heart" and focuses on ideas of good and evil.
I'm on a criminal law panel moderated by Rick Garnett and together with Cecelia Klingele, John Stinneford, and Meghan Ryan. I think Tom Berg is also on another panel involving free speech. My remarks will consider the fate of evil as a concept in scholarship about criminal law and punishment. If I have some time left over, I'll talk about good too. My general thesis is that both of these ideas are basically irrelevant in academic discussion of criminal law (I wrote something about this when I was just a young MOJ pup years back).
Tuesday, November 7, 2017
A few days ago, Stephen Schneck posted this reflection at U.S. Catholic. Although I agree with most of what he writes, I have a few quibbles, too.
First, under "Practice Politics," he writes "Catholic teachings insist on the importance of voting." True, but I'd want to clarify that voting's "importance" does not mean that, in every election, Catholics are morally obligated to vote. Not only are there many other ways to effectively "practice politics," it could also be the case that one communicates an important point by not voting.
Second, under Reflection 3 ("Discern the Common Good"), he writes:
The measure for the common good is not military prowess, technology, or the Dow Jones Index; it is instead the quality of life of the least among us. In Catholic teachings citizens should vote with the least among us foremost in their minds.
It strikes me that this way of putting things is running together two distinct ideas: First, it seems right that, as a matter of solidarity, we should take special care to practice politics in such a way as to protect the vulnerable. The "common good," though, is usually defined in the Catholic Social Tradition (See Catechism para. 1906-09):
"the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily."26 The common good concerns the life of all. It calls for prudence from each, and even more from those who exercise the office of authority. It consists of three essential elements:
1907 First, the common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person. Society should permit each of its members to fulfill his vocation. In particular, the common good resides in the conditions for the exercise of the natural freedoms indispensable for the development of the human vocation, such as "the right to act according to a sound norm of conscience and to safeguard . . . privacy, and rightful freedom also in matters of religion."27
1908 Second, the common good requires the social well-being and development of the group itself. Development is the epitome of all social duties. Certainly, it is the proper function of authority to arbitrate, in the name of the common good, between various particular interests; but it should make accessible to each what is needed to lead a truly human life: food, clothing, health, work, education and culture, suitable information, the right to establish a family, and so on.28
1909 Finally, the common good requires peace, that is, the stability and security of a just order. It presupposes that authority should ensure by morally acceptable means the security of society and its members. It is the basis of the right to legitimate personal and collective defense.
So, one of the conditions that makes up the common good is "the stability and security of a just order" and, relatedly, effective "collective defense."
Finally, Schneck writes that "[i]n Catholic teachings citizens should vote for the virtuous." Not necessarily. For starters, we don't always (to put it mildly) have that option. It seems that this reflection is running together the importance of "policies that inculcate virtue" with a policy of "voting for the virtuous." It could easily be, in any given election, that the prudent course -- the best way to secure policies that inculcate virtue and protect the common good -- is to vote for a particular candidate who is not particularly commendable in terms of his or her character. Now, to be clear: I do believe, and have for as long as I can remember, that "character matters." (As I discussed about a year ago, here.) A candidate's lack of virtue or a candidate's bad character will often be good reasons to vote against him or her.
Like I said . . . quibbles!
I'm looking forward to joining Melissa Rogers and Bishop McElroy for a discussion at this event:
Faith, Common Good, and Democracy in a Time of Pope Francis and President Trump
Before his death 50 years ago, John Courtney Murray, S.J., the preeminent Catholic theologian on democracy and religious freedom, wrote that people:
of all religions and of no religion must live together in conditions of justice, peace and civic friendship, under equitable laws that protect the whole range of human rights, notably including the right to religious freedom. It is therefore necessary for the Church to show the way to justice and peace in society…
The implications of Murray’s call to action in our polarized politics and challenged Church will be explored in a one-on-one conversation with Bishop Robert McElroy of San Diego, who authored the book The Search for an American Public Theology: The Contribution of John Courtney Murray (Paulist Press, 1989). The bishop will then be joined by former executive director of the White House Office of Faith-based and Neighborhood Partnerships Melissa Rogers and Professor of Law and Associate Dean at the University of Notre Dame Richard Garnett for further discussion of faith, the common good, and democracy. These panelists will answer several key questions:
- What are the legacy and lessons of Murray’s groundbreaking work on faith and democracy?
- How are religious freedom and the common good threatened and advanced today?
- How do these principles challenge us in a nation led by President Trump and in a Church led by Pope Francis?
John Carr, director of the Initiative on Catholic Social Thought and Public Life, will moderate the Dialogue.
A committee at the University of Michigan is studying whether to rename an academic building currently named for geneticist and cancer researcher C.C. Little, the university's president in the 1920s, who was also a leading eugenicist and president of the American Eugenics Society. At a September forum accompanying a student rally calling for the renaming, a UM history professor reviewed Little's involvement:
[P]rofessor Martin Pernick opened the panel by discussing the topic of eugenics in a broad sense and what role Little played in it. Pernick made the argument that being in support of the idealistic form of eugenics was not cause enough to remove a person’s name from the building they were named after.
“Eugenics meant a lot of different things to a lot of different people,” Pernick said. “Charles Darwin’s cousin, Francis Galton, defined it as the use of science to improve human heredity. Who can argue with that? Using science to improve things.”
Pernick explained Little’s interpretation of eugenics was what merited a renaming of the building named after him. According to Pernick, the type of genetics Little supported was one that promoted the advancement of those who held power in society in the early 20th century, through any means necessary.
“The kind of eugenics that Little promoted included all of the American Eugenics Society’s most controversial methods: compulsory sterilization, ban on interracial sex, selective immigration and restrictions by ethnicity,” Pernick said.
In an interview, university president Mark Schlissel says he has no opinion yet and is waiting for the committee report, which he notes is charged with suggesting criteria for these renaming debates:
[O]ne of the more interesting and challenging criteria is: You can imagine there are many ideas that in today’s context seem ridiculous, that they’re so out of step with our current values and the current social norms in our society that they make no sense. However, when you’re thinking about a naming, you have to actually go back in time to when the naming happened, and then figure out in the context of those times, how do you judge that person? Were they typical of their era, or were they a terrible outlier that, regardless what the era was, you wouldn’t want to associate yourself with their values? That’s a very hard thing to do because I’m sure 100 years from now there are going to be things that we all do and think and care about today that our society a century from now is going to think about really differently. That’s happened all throughout our history, there’s no reason to think it’s not going to keep happening.
How should one shaped by the criticism of eugenics found in Catholic social thought assess a debate like this? (1) Welcome the fact that the wrongs of eugenics have been brought to campus attention through the kind of student advocacy that we've seen concerning other historical wrongs? (2) Suspect, and complain, that condemnations of eugenicists will be selective (e.g. entirely omitting Margaret Sanger or Clarence Darrow) and overly narrow (e.g. underplaying its threats to human dignity that are not tied to racial/ethnic discrimination) and will simply rest on the currently dominant political views on campus? (3) Some other assessment?
Wednesday, November 1, 2017
Yesterday, my friend and colleague, Prof. Amy Coney Barrett, was confirmed to the United States Court of Appeals for the Seventh Circuit. I was pleased that a few Democratic senators -- including two Catholics, my own Senator Joe Donnelly and also Virginia's Tim Kaine -- supported her confirmation, as did hundreds of students, scholars, colleagues, and co-clerks.
Prof. Barrett's record was glaringly distorted and misrepresented by interest groups. The "Alliance for Justice" behaved particularly badly, and dishonestly. Several of the senators who questioned her during her hearings also acquitted themselves, to put it mildly, poorly. She was subjected to a particularly low and Dan-Brown-esque (and also factually inaccurate) piece in the New York Times, about her association with the People of Praise, written by a journalist who should have known better. There is no doubt that, in some quarters, the fact that Barrett is a practicing Catholic, who has been public about the Faith's importance to her and who has reflected thoughtfully on its implications for her professional life, was a motivating factor for opposition, criticism, and attacks. To their great credit, many who do not share Barrett's jurisprudential views, and do not (at all) support this President -- for example, Noah Feldman and Chris Eisgruber -- spoke out clearly and powerfully against the inappropriate attacks.
To be sure, these facts do not establish, technically speaking, a violation of the Constitution's ban on religious tests for federal office. In addition, it is not the case (contrary to what was said by those who persisted in defending Barrett's attackers) that to criticize the tactics of those who opposed Barrett's nomination is to say that a judge's "personal views" are never relevant to her judicial work or to senators' decisions about whether to vote to confirm.
The judicial-confirmation process has been in bad shape, at least since Robert Bork's failed nomination, for a long time; I believe the deterioration accelerated after 2000 and is now perhaps as bad as it has ever been. However, I suppose it would be strange if, in the midst of a larger politics that seems to be failing in many ways, our judicial-confirmation process were civil, healthy, and honest. St. Thomas More, patron of lawyers and statesmen, pray for us!
Monday, October 30, 2017
In the last month, I've given a lecture, "Religious Freedom in a Polarized Age," as the Lin Lecture at St. Mary University Law School in San Antonio, and as the Veninga Lecture at the Wisconsin Institute for Public Policy and Service. Recordings of those lectures are, respectively, here and here. A summary paragraph:
In [recent high-profile religious liberty] cases, divides over religious liberty increasingly trace, and even intensify, the divides over the underlying policy issues: sexual morality, health policy, immigration, national security. If you support LGBT nondiscrimination laws, you reject any religious-liberty challenges to those laws; likewise if you support immigration restrictions. Both left and right do it.
This is a bad development: that’s my thesis today. We must renew our commitment to religious freedom for all. That proposition has two parts. First, we should place a strong value on religious freedom, which I define as the ability of people to live consistently with their religious beliefs and identity, presumptively free from government penalty for doing so. We have to balance that freedom with other values, but it should receive heavy weight in the balance. Second, that strong freedom must extend equally to all faiths. We need to protect Muslims and conservative Christians. Today more than ever, Americans need to affirm what Justice Oliver Wendell Holmes called “freedom for the thought we hate.”
As I posted recently, Professor Doug Laycock and I filed a brief in the Masterpiece Cakeshop case on behalf of the Christian Legal Society and other amici, evangelical Protestant, Mormon, and Jewish. Our brief focused on the Free Exercise Clause claim, arguing that "Colorado’s Anti-Discrimination Act, as applied, ... violates the [c]lause" because "[i]t is neither religion-neutral nor generally applicable" under Church of the Lukumi Babalu Aye v. City of Hialeah and Employment Division v. Smith. We argued in short, that
Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships [and who were sued for discrimination against a religious belief]. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding [and who was held liable for sexual-orientation discrimination]. The state court applied flatly inconsistent reasoning to the two claims.
Our brief drew a critique at the Take Care blog from Professor Jim Oleske (Lewis & Clark Law School), who argued that we were reading Smith and Lukumi too favorably to religious exemptions. Oleske argues that those decisions protect religious exercise only against laws targeting it for regulation.
We've now posted our reply to Oleske's critique, also at Take Care. A couple of sample bits:
In Lukumi, the Supreme Court made clear that “neutrality and general applicability,” particularly the second element, turn on whether the government has regulated a religious practice while failing to regulate analogous secular conduct that undermines the same interests as those allegedly undermined by the regulated religious practice. The Court found that the state had “devalue[d] religious reasons for killing [animals] by judging them to be of lesser import than nonreligious reasons.” 508 U.S. at 537. This “devaluing” can happen even when only a small number of other interests are left unregulated. When the government deems some private interests and activities sufficiently important to protect and others insufficiently important, religious exercise should be treated like the important interests, not the unimportant ones. Religious exercise is an interest deemed important by the constitutional text....
... Both sets of bakers were in the business of producing custom cakes to customers’ specifications. Those bakers who refused to produce cakes attacking same-sex marriages were protected; those bakers who refused to produce cakes celebrating same-sex marriages were not.
Of course, Colorado is free as a matter of state law to determine that Phillips’s conduct violated the nondiscrimination statute. But it is not free to interpret religious discrimination in a narrow way that protects the conscience of bakers with whom the state agrees, and then interpret sexual-orientation discrimination broadly to penalize a religiously motivated baker with whom the state disagrees. Such a discriminatory interpretation makes the law not neutral and not generally applicable.
I will be at Yale Law this Thursday, speaking on "Revisiting 'Reliance Interests' in Planned Parenthood v Casey: Does 'Relying' on Abortion for Equality Actually Serve Women's Equality?" The talk is sponsored by the Yale Law chapter of the Federalist Society and will take place in Room 120 from 12:10-1:30pm.
I have the honor, at Notre Dame Law School, of holding the Paul J. Schierl / Fort Howard Corporation Chair. A few days ago, Mr. Schierl died at the age of 82. He lived a full, rewarding, and exemplarly life, in the law and in his community. Read about him, his work, and his family here. R.I.P.
Sir Roger Scruton will deliver the keynote address at the second meeting of The Tradition Project, convening this Thursday, November 2, at the New York Athletic Club, 180 Central Park South. Reception at 6:00, address at 7:00.
The title of his lecture is "Tradition, Culture, and Citizenship." Please refer to this notice for more details about the project, and please write either to me or to Mark Movsesian if you are interested in attending.
Sunday, October 29, 2017
Stanley Hauerwas has an (as one would expect) provocative and someone idiosyncratic reflection up at the Washington Post. (I'm assuming that, in keeping with the usual practice, Hauerwas didn't pick the particulars of the headline." A bit:
Five hundred years after its inception, we are witnessing the end of the Reformation. The very name “Protestant” suggests a protest movement aimed at the reform of a church that now bears the name of Roman Catholicism. But the reality is that the Reformation worked. Most of the reforms Protestants wanted Catholics to make have been made. (Indulgences are no longer sold, for instance.) A few Protestant denominations might still be anti-Catholic (consider evangelical pastor Robert Jeffress’s claim, recently publicized, that Catholicism has Satanic origins ), but the original idea that Catholics adhere to a legalistic perversion of Christianity that does not admit the free grace of God is seldom seen, these days, as the Protestant difference from Catholicism. Over time, historians have helped us see that there was no one thing the Reformation was about, but that if there was a single characteristic at its heart, it was the recovery of the centrality of Christ for making sense of why Christians are not at home in this world. That emphasis turned out to be the overriding insight that shaped the work of Vatican II, meaning Catholics have overcome the major thrust of the Reformation.
That the Reformation has been a success, however, has put Protestantism in a crisis. Winning is dangerous — what do you do next? Do you return to Mother Church? It seems not: Instead, Protestantism has become an end in itself, even though it’s hard to explain from a Protestant point of view why it should exist. The result is denominationalism in which each Protestant church tries to be just different enough from other Protestant churches to attract an increasingly diminishing market share. It’s a dismaying circumstance. . . .
My own sense is that it's difficult to reduce or distill the Protestant Reformation (Revolt?) down to one "single characteristic" and so it is also difficult to pronounce with confidence who "won" or to say what "winning" would even be. (A lot of early Protestants had a whole lot of practices and teachings in their sights - e.g., the veneration of Mary, the Sacraments, etc. - that still seem to be going strong.) Still . . . interesting.
Thursday, October 26, 2017
My friend and colleague, Prof. Paolo Carozza, shared with me the address he delivered a few years ago at Benedictine College. It is a very thoughtful reflection on the life and witness of St. Benedict and his relevance to our times. Among other things, he engages some of what Rod Dreher has been arguing, in his The Benedict Option and elsewhere.
I particularly liked this:
God has written into the world “an order and a dynamism that
human beings have no right to ignore,” [Pope Francis] tells us . . . . And thus the proper
attitude for us to strive for in the face of this fact must be one of “gratitude and
gratuitousness, a recognition that the world is God’s loving gift.” It is
quite countercultural today to insist that reality and the world of meaning are not
wholly constructed by us. And nevertheless it is true that the things that most
correspond to the destiny of our lives are not the ones we “make”, and still less the
ones we “possess” or that we “consume”. Instead we have to allow ourselves to be
made by, possessed by, and consumed by a passion for truth and beauty and
Beginning again, the beginning of a new year institutionally, the beginning of
a new stage in life, the new beginning of hope in a world that has lost its way, begins
with our own hearts. If we allow ourselves to be made and possessed and consumed
there, we will witness the transformation of the very heart of the world.