Like my wonderful colleagues here at MOJ and so many others, I am just starting to learn about Pope Francis I. With that in mind, I recommend this informed and very thoughtful post by John Haldane. Also, the Pope's excellent choice of name put me in mind of St. Francis of Assisi's beautiful "Canticle of the Sun." The text is below, and here is a piano setting by Franz Liszt that I've always liked.
Most high, all powerful, all good Lord!
All praise is yours, all glory, all honor, and all blessing.
To you, alone, Most High, do they belong.
No mortal lips are worthy to pronounce your name.
Be praised, my Lord, through all your creatures,
especially through my lord Brother Sun,
who brings the day; and you give light through him.
And he is beautiful and radiant in all his splendor!
Of you, Most High, he bears the likeness.
Be praised, my Lord, through Sister Moon and the stars;
in the heavens you have made them bright, precious and beautiful.
Be praised, my Lord, through Brothers Wind and Air,
and clouds and storms, and all the weather,
through which you give your creatures sustenance.
Be praised, My Lord, through Sister Water;
she is very useful, and humble, and precious, and pure.
Be praised, my Lord, through Brother Fire,
through whom you brighten the night.
He is beautiful and cheerful, and powerful and strong.
Be praised, my Lord, through our sister Mother Earth,
who feeds us and rules us,
and produces various fruits with colored flowers and herbs.
Be praised, my Lord, through those who forgive for love of you;
through those who endure sickness and trial.
Happy those who endure in peace,
for by you, Most High, they will be crowned.
Be praised, my Lord, through our Sister Bodily Death,
from whose embrace no living person can escape.
Woe to those who die in mortal sin!
Happy those she finds doing your most holy will.
The second death can do no harm to them.
Praise and bless my Lord, and give thanks,
and serve him with great humility.
Wednesday, March 13, 2013
My friend Michael Helfand (Pepperdine) will be appearing with me at the US Commission on Civil Rights briefing next week, and he passes along his
testimony. Michael's approach to the religious institution question, as developed not only here but also in some of his other excellent work, depends to an extent on a very interesting (and, I think, provocative) concept of implied consent derived from the individual and granted to the institution. He locates some of the constitutional root of this idea in
Watson v. Jones (1872).
Tuesday, March 12, 2013
Rick rightly called attention to John Inazu's incisive written remarks for a hearing next week before the US Commission on Civil Rights, whose subject is the conflict between civil rights and nondiscrimination norms. I'm on the second panel as well. My prepared testimony may be found here. I've also reproduced it below (without footnotes).
____________________________
Dear
Members of the Commission:
Thank
you for the chance to testify before you today. I am an associate professor at
St. John’s University School of Law. My work focuses on constitutional law, criminal
law, and the law of religious liberty.
The
subject of our panel concerns the conflict of anti-discrimination norms and civil
rights, and the specific civil right of our collective focus is the right of
religious liberty. My prepared remarks divide into two parts.
The
first part considers the importance of studying and, to some extent, preserving
the conflicts that we are considering. The wish to resolve a conflict sometimes
can mask the depth and complexity of the conflict. Even more than this, an
overeager desire to resolve a conflict can obscure the possibility that
conflicts are part of every person’s experience, and, perhaps more
controversially, that justice often does not consist of any sort of large-scale
harmonious solution or consensus either within an individual or within a polity.
The second part reflects on the ways in which our law attempts to negotiate around
one specific type of conflict between non-discrimination norms and the right of
religious liberty in the doctrine of the ministerial exception, which was
recently recognized by the United States Supreme Court in Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC.
Continue reading
Friday, March 8, 2013
I want to talk to you about the Free Exercise Clause. This post is long.
My view of the Free Exercise Clause is one part of a larger approach to constitutional adjudication
involving the religion clauses. For those who have been thirsting feverishly to know more about that approach, fear not: soon enough, I will flood the zone. Suffice it for now to say that one of the most serious criticisms of my approach is that it is insufficiently predictable. It is sometimes said, not without reason, that my approach is not rule-like enough, and that it is therefore damaging to rule of law values.
These are fair criticisms, and I do my best to address them. I do this in part by taking a close look at the way in which a selection of state, federal district, and federal intermediate appellate courts have applied that putatively most rule-like of all religion clause rules: neutral laws of general application do not violate the Free Exercise Clause.
What I find is: that rule is not nearly as inviolable as many who invoke it believe. In fact, knowing when that rule will apply actually depends on having the sense of a host of context-dependent and issue-specific factors. The trouble, as I have explained before, is the issue of general applicability. Employment Division v. Smith carved out the unemployment compensation cases from its holding. But, per this amicus brief, it is more accurate to think about this carve-out not as an "exception" but as a corollary to the rule itself, which creates a kind of graduated spectrum of general applicability. Laws which are not "generally applicable" are lifted out of the Smith "rule" and receive judicial balancing. How do we know when a law is not "generally applicable"?
It falls to courts to determine what "generally applicable" means along the spectrum. It cannot mean that the law has no exceptions, period; that would destroy the rule. And yet "generally applicable" must mean something. What it means is the subject of judicial interpretation--for now, very much in the common law style. And that means that the Smith rule is much less predictable than its supporters suppose: "If the vice of pluralistic approaches is that they are predictable only to those who know how they will be applied, that is no less true of monistic approaches." Chapter 8, The Tragedy of Religious Freedom. That is not enough, by itself, to convince you to adopt my approach. For that, you need to buy the book!
Here is a brand new HHS Mandate case to show the predictable unpredictability of Smith, Geneva College et al. v. Sebelius, decided Wednesday by the U.S. District Court for the Western District of Pennsylvania.
Continue reading
An excellent column by David Brooks this morning on the rising strength of New York City's Orthodox Jewish Community. One highly relevant feature of his piece is the importance of law as a structure that limits choice, and of the beneficent constraining power of law. You should read the whole piece. But by far the sharpest line in it is not Brooks's, but belongs to Chief Rabbi of the British Commonwealth Jonathan Sacks: "The Torah is an anthology of argument with a shared vocabulary of common restraint."
An analogy is made here (by Brooks and Rabbi Sacks both, it seems) to constitutional law -- that is, a conceptual connection between the shared cultural norms of a common tradition and norms of constitutional interpretation and adjudication. Amen.
Wednesday, March 6, 2013
Over at CLR Forum, my friend Pasquale Annicchino has an interesting reflection on current interest in Italy in the "American model" of religion in the public square. Here's a bit:
Why are American cardinals receiving so much attention? One obvious, and superficial, reason is that they are much more skilled, as compared to other cardinals, in communicating and establishing relationships with the media. But there is another factor. The United States’ ability to preserve a vocal religious presence in the public sphere has always raised interest and curiosity in Rome, and especially now, in a time when the secularization of Europe is growing at an unprecedented level. It is not to reveal a secret to say that Benedict XVI himself, on many occasions, expressed appreciation for the “American model,” a model in which religious arguments in the public sphere are heard and debated much more than in Europe.
Monday, March 4, 2013
Tomorrow evening, I will be on a panel hosted here in Manhattan by the Anti-Defamation League, as part of its annual Edward Brodsky Legal Conference. The panel will be moderated by Noah Feldman (Harvard); my co-panelists are David Barkey (ADL), John Malcolm (Heritage Foundation), and Louise Melling (ACLU).
The subject of the panel is “The Boundaries of Religious Freedom: Mandates, Choices, and Liberties,” sort of in the MOJ wheelhouse. Here’s some more information. If you have time to come, please say hello.
