New York City Mayor Bill de Blasio has reversed the New York City Department of Education's policy of exclusion of religious groups that engage in "worship" from the use, on equal terms with other groups, of public school classrooms--a policy that was upheld several times by the Second Circuit as vindicating "interests favored by the Establishment Clause." The Mayor concluded that "[a] faith-based organization has a right like anyone else" to use the public school space.
Tuesday, April 15, 2014
Mayor de Blasio Allows Religious Groups Access to Public School Classrooms on Equal Terms
"Diversity and Dishonesty"
Ross Douthat expressed well a point that I've wanted to make, and that I think needs to be made, here. Paraphrasing Peter Westen, it seems increasingly that the idea of "diversity" -- like "inclusive", or "open-minded", etc., etc. -- is, when it comes to views and opinions (I'm not thinking here about diversity in terms of socioeconomic or ethnic background) is not so much "empty" but entirely substantive and loaded. He writes:
I am (or try to be) a partisan of pluralism, which requires respecting Mozilla’s right to have a C.E.O. whose politics fit the climate of Silicon Valley, and Brandeis’s right to rescind degrees as it sees fit, and Harvard’s freedom to be essentially a two-worldview community, with a campus shared uneasily by progressives and corporate neoliberals, and a small corner reserved for token reactionary cranks.
But this respect is difficult to maintain when these institutions will not admit that this is what is going on. Instead, we have the pretense of universality — the insistence that the post-Eich Mozilla is open to all ideas, the invocations of the “spirit of free expression” from a school that’s kicking a controversial speaker off the stage.
And with the pretense, increasingly, comes a dismissive attitude toward those institutions — mostly religious — that do acknowledge their own dogmas and commitments, and ask for the freedom to embody them and live them out.
It would be a far, far better thing if Harvard and Brandeis and Mozilla would simply say, explicitly, that they are as ideologically progressive as Notre Dame is Catholic or B. Y.U. is Mormon or Chick-fil-A is evangelical, and that they intend to run their institution according to those lights.
His point, I think, is that institutions (including religious hospitals, schools, social-welfare organizations, etc.) are usually not "neutral" when it comes to matters that connect closely with their charism, mission, character, etc. Nor should they be, or be expected to be. But, at the same time, they should pretend otherwise.
Monday, April 14, 2014
The Civil Religion of Machiavelli
This review by Professor Cary Nederman of Professor Maurizio Viroli's Redeeming the Prince: The Meaning of Machiavelli's Masterpiece is very interesting (h/t Matt Lister). I have not read Viroli's book yet (saving it for the summer!), but his reading of Machiavelli--and in particular his interpretation of the famously perplexing Chapter 26 ("Exhortatio ad capessendam Italiam in liberatemque a barbaris vindicandam")--makes a fine textualist case for a kind of civil religion in Machiavelli's work. Here, Machiavelli pleads for an Italian redeemer who--"favorita da Dio e dalla Chiesa" ("favored by God and the Church")--will deliver Italy from its present troubles. The troubles are pretty bad: "sanza capo, sanza ordine, battuta, spogliata, lacera, corsa, e avessi sopportato d'ogni sorte ruina" ("without a head, without order, beaten, denuded, wounded, run down, and having sustained all manner of ruin"). Here's a bit from the review concerning what Machiavelli had in mind concerning the divine agent who would unify Italy and redeem its national promise:
In contrast to most scholars, for whom Chapter 26 cannot be reconciled with the previous body of the text, Viroli insists that Machiavelli's "Exhortation" represents the very crescendo of The Prince. How does Viroli arrive at such an unconventional reading?....His overarching insight, I take it, is that we ought to take Machiavelli at his word when he speaks of religious matters and, in particular, mentions the workings of God. The prevailing tendency, of course, has been to dismiss such references as reflective of either his impiety or his wicked sense of humor. On this important point, I believe Viroli to be largely correct. Scholars have all-too-often filtered their readings of Machiavelli through a set of preconceived notions or impressions of what they assume he was saying, according to his longstanding reputation, rather than what the text actually states. This does not mean that Machiavelli's political thought lacks an underlying agenda, but rather that we must always commence our investigations by taking the words he wrote seriously and at face value....
In particular, Machiavelli's invocation of prophetic wording in Chapter 26, according to Viroli, reflects the overarching purpose of The Prince: the call for a redeemer, presumably Lorenzo de' Medici, to unify Italy in order to remove the foreign elements that have dominated its politics. Machiavelli says that such a redeemer is sanctioned by God, who has rendered the moment propitious for such action. Viroli insists that we must take Machiavelli at his word in this regard, rather than dismissing it as incompatible with the general message of The Prince.
That supposed "general message" helps us to grasp the sense in which Machiavelli may be characterized as a realist for Viroli. Specifically, Viroli asserts that Machiavelli adopts the stance of a "realist with imagination." By this he means that Machiavelli perfectly well understood the situation of Italy as it existed in his own day; this is his "realist" dimension. Yet he posits that Machiavelli was also engaged in an imaginative way to change such reality by promoting a savior, a redeemer, capable of instituting the reforms necessary to transform the realities of his day. On Viroli's account, Machiavelli pursued this agenda by mythologizing the great men of bygone times as well as some of his contemporaries. Thus, he mythologizes the redeemers whom he lauds in Chapters 6 and 26 -- such as Moses, Cyrus and Theseus -- as well as recent political figures such as Caterina Sforza and (especially) Cesare Borgia, both of whom he had encountered during his days in the Florentine civil service. Their deeds are transformed by him without regard to their actual behavior, for which Machiavelli has no use. Machiavelli's realism, then, is not confined to an effort to analyze and explain political events and personalities, past and present, in the manner of a political scientist. Rather, he renders his favored subjects larger than life, with the purpose of exhorting the redeemer to aim at their example, even if he falls short.
"Micro-Christendoms"
At First Things, Peter Leithart has a very interesting essay on "micro-Christendoms" called "Rebuilding in the Ruins." Here is the conclusion:
. . . As the Yoderites and Hauerwasites have been telling us for some time, Christendom is dead. The religious right was its last, long susperation. Though there are millions of Christians in the U.S. and Europe, Christian faith no longer provides the moral compass, the sacred symbolism, or the telos for Western institutions. America’s Protestant establishment has collapsed. Neither evangelical Protestants nor Catholics nor a coalition of the two are poised to replace it. Christian America was real, but, whatever its great virtues and great flaws, it is gone, and the slightly frantic experiments have failed to revive the corpse. It’s past time to issue a death certificate.
That’s a sobering conclusion, and it’s tempting for Christians to slink back to our churches. For innovative, visionary pastors and civic leaders, though, there are hundreds of realistic, locally based, ecumenically charged opportunities to foster experiments in Christian social and political renewal.
Christendom is dead! Long live the micro-Christendoms!
Thoughts?
Sunday, April 13, 2014
Corey Reviews The Tragedy of Religious Freedom
Over at The University Bookman, Professor Elizabeth Corey (Baylor, political science) has a very generous review of The Tragedy of Religious Freedom.
If you do not know Professor Corey's work (the latter noted here by Lisa Schiltz), you should check it out.
Friday, April 11, 2014
Law Professors' Feb. Letter on the Arizona RFRA Amendments
The furor of the last couple months concerning various religious-freedom-related bills (wise ones and unwise ones) has died down a bit. But questions about the meaning and effects of state reiigious freedom restoration acts (RFRAs) will recur. Thus it seems worthwhile, for future reference, to post here the February 25 letter to Arizona Gov. Jan Brewer from 11 religious-liberty scholars--including three MOJers--clarifying the nature of the proposed amendments to the Arizona state RFRA in the face of a pubilc debate that increasingly (and wrongly) has threatened to tar RFRAs in general as "anti-gay" bills.
Greek, Latin, and more Latin
Want to be a lawyer? It appears that the study of the classical languages has instrumental as well as intrinsic virtues.
Wednesday, April 9, 2014
Hot Pursuit, Deliberate Speed: God and Law Man
Shon Hopwood, author of Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption, has a testimony essay at Christianity Today: "God's Hot Pursuit of an Armed Bank Robber."
The essay opens: "It didn't take a moment of genius introspection to realize that doing life my way had led to nothing but disaster and destruction. It was the summer of 2009, and I had just completed an almost 11-year sentence in federal prison for my role in five bank robberies I had committed as a foolish young man."
The story that follows is so improbable that it would make for lousy fiction if it were not true. But it makes for spirit-affirming real-life testimony.
The essay concludes: "Through it all, from the amazing to the mundane, God loved us. Through it all, God has given us a purpose. For me that purpose revolves around repentance, loving my wife and children, sharing the grace I've been given, and using my legal knowledge to assist those who cannot afford a decent attorney. Looking back over the course of my life, I can see that although I rarely returned the favor, God hotly pursued me."
Mr. Hopwood's choice of legal metaphor is apt. The doctrine of hot pursuit in criminal law authorizes the police to chase someone into an area where there would otherwise be a reasonable expectation of privacy, in order to apprehend him, if the police have probable cause to believe that he committed a serious crime.
Mr. Hopwood's testimony is about a God who keeps up the chase, who never relents. It brings to mind another famous legal phrase, "deliberate speed." The source for this phrase, deliberately ambiguous as used in Brown II, may have been Francis Thompson's "Hound of Heaven," in which it means something entirely different from what it was taken to mean in implementing Brown. (Interestingly, the phrase "with all deliberate speed" appears to have been put in Brown II at Felix Frankfurter's urging, although he credited Holmes with the phrase. Holmes, in turn, said he derived it from English chancery practice. But Frankfurter could not find any such source.)
(HT: Fulton Sheen--"The two great dramas of life are the soul in pursuit of God and God in pursuit of the soul." Whenever I think of The Hound of Heaven, I can hear Archbishop Sheen's voice reciting it. If anyone knows of a link to an online version of Sheen reciting verses from the poem, I would be most grateful to learn of it. For now, here's RIchard Burton's recitation.)
Monday, April 7, 2014
The three-part structure of RFRA's operative provision and the timing of the government's RFRA violations in Hobby Lobby & Conestoga Wood Specialties
I had occasion yesterday evening to revisit RFRA's primary operative provision, 42 U.S.C. § 2000bb-1 (included below). In reviewing its text, I was struck yet again by the way in which the statute's provision of a claim for judicial relief is a backstop of sorts to the primary way in which RFRA is to operate. Litigation under RFRA occurs only after the government has violated its rule against unjustified burdens on the exericse of religion. By the time that a claim for judicial relief has been sought, the statutory violation should have already happened: "A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000bb-1(c) (emphasis added).
This feature of RFRA raises the interesting question of when the gvoernment's violation of RFRA took place for Hobby Lobby and Conestoga Wood Specialties. This is not a question I've seen addressed anywhere, but the best candidate seems to be when the government's intent to apply the mandate to these companies regardless of their religion-based objection was sufficiently definite and imminent to ground a claim for declaratory and injunctive relief. The precise date is not apparent to me, but if I were trying to track it down, I would look for the time at which the government adopted its since-then-firm (but soon-to-be-invalidated) position that for-profit corporations are categorically unable to seek relief from the contraceptives mandate under RFRA.
(a) In general. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(c) Judicial relief. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
Sunday, April 6, 2014
Carozza, "Religious freedom is a human right . . . for family businesses, too"
An excellent piece, here, by my friend and colleague, Paolo Carozza (who is, among other thinks, Director of Notre Dame's Kellogg Institute):
The Becket Fund for Religious Liberty, which is representing Hobby Lobby and the Green family, has made a number of strong arguments explaining why the government’s extreme position runs afoul of federal civil rights law and the First Amendment. But it not only violates our own laws, it also directly contradicts the most basic principles of international human rights. As I and many other professors of international law explained in a “friend of the court” brief we submitted to the Supreme Court, international legal norms, and the legal norms of constitutional democracies in Europe and elsewhere, affirm that the exercise of religious liberty has an inherently collective and public character. They reject the notion that there can be no corporate religious freedom and that religious liberty ends where family businesses begin. The government’s position puts us completely at odds with these universally accepted understandings of religious liberty.
Indeed, the federal government’s position runs directly counter to global trends that we ought to welcome. As we point out in our submission to the Supreme Court, other nations and international bodies increasingly emphasize that businesses should not be focused exclusively on profit, but on the real human costs to society of their operations. Corporate social responsibility means that a global business must not have an “every man for himself” attitude, but should instead act in accordance with conscience, taking into account how its actions affect others. Yet in the Hobby Lobby case the government is saying not just that a business doesn’t have a conscience, but that its owners can’t be allowed to run it in accordance with their conscience. That morally laissez-faire approach is a recipe for social disaster, which is why every human rights body in the world to address the issue has pleaded for, not rejected, greater corporate social responsibility.
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