I visited the University of Montana School of Law in beautiful Missoula earlier this week, to talk with students and give a public talk on religious freedom and the constitution. (Thanks to Anthony Johnstone for the hospitality!). Since I was out there anyway, I decided to do some (ahem) field work, and visit "Big Mountain Jesus," up at Whitefish Mountain Resort (which happened to have recently been gifted with more than two feet of fresh snow). Here is a picture:
The statue was put up in 1953, by the Knights of Columbus as a memorial for members of the 10th Mountain Division. As this news story reports:
The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.
In 2010, The Madison, Wisconsin-based Freedom From Religion Foundation would demand that the Forest Service not renew the permit. While initially agreeing, public outcry led the service to reconsider.
In February 2012, FFRF sued to have Big Mountain Jesus removed from the government owned property.
Powder magazine had this feature on the statute, and the case, recently. The FFRF lost in the District Court, but has appealed to the Ninth Circuit. Judge Dana Christensen wrote:
"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."
He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."
Some of the Court's precedents might suggest that the solution here is to invite the installation of a statue of Ullr close by . . .
Thursday, March 13, 2014
The cover story in the current (March 1-7) issue of The Economist is called "What's Gone Wrong with Democracy . . . and how to revive it." If you are able to track it down (without a subscription), it's worth a read. It was a bit strange to me, though, that religion and religious freedom were nearly invisible in the discussion about the conditions and enablers of stable democracy. Indeed, it seemed a pretty big oversight to miss even the possibility that some religious traditions might "do better" than others at producing and nurturing stable democracies. Putting that aside, at the very least, there is good reason to believe that religious freedom correlates positively with (sustainable) democratization. The authors should take a look at Dan Philpott et al.'s God's Century . . .
Wednesday, March 12, 2014
This event, thanks to the Berkley Center's Religious Freedom Project (in Washington, at Georgetown) looks great: "Everybody's Business: The Legal, Economic, and Political Implications of Religious Freedom." Here's their blurb:
Is religious freedom good for business? Can religious liberty aid economic development, or help reduce poverty? What are the limits of religious freedom? Under the law, are for-profit businesses entitled to the exercise of that right in the United States? Does the HHS contraceptive mandate under the Affordable Care Act restrict the religious freedom of businesses? What are the legal, economic, and political implications of the answer to that question?
On March 24, the day before Supreme Court oral arguments on the Hobby Lobby case, the Religious Freedom Project at Georgetown University’s Berkley Center for Religion, Peace & World Affairs will co-sponsor a half-day conference on these and related questions. The conference will announce a new partnership between the Religious Freedom Project and Baylor University’s Institute for Studies of Religion, the co-sponsor of the event. The conference will begin with an “On Topic” keynote conversation between Baylor University President and Chancellor, Judge Ken Starr, and Harvard University Law Professor, Alan Dershowitz.
This opinion piece by former Congressman Bart Stupak -- a pro-life Democrat whose support was crucial to the passage of the Affordable Care Act -- appears in USA Today. Here's a bit:
I had hoped that more of my Democratic colleagues would object to the way the contraception mandate has been applied. During the battle over the ACA's passage, pro-life Democratic members of Congress negotiated with the president to ensure that the Act would not be employed to promote abortion. During the final debate on the Affordable Care Act, I engaged in a colloquy with Chairman Henry Waxman reaffirming that Americans would not be required to pay for abortions or violate their conscience by participating in or promoting a procedure they find morally objectionable. In response, we received an ironclad commitment that our conscience would remain free and our principles would be honored. With our negotiations completed and our legislative intent established by the colloquy, we agreed to an executive order directing federal agencies to respect America's longstanding prohibitions on government funding of abortion and most relevant here, to respect longstanding protections for individuals and organizations conscientiously opposed to participating in or facilitating abortions
Tuesday, March 11, 2014
This paper, by my friend David Opderbeck -- whose work is probably familiar to MOJ readers -- should be of interest. In "The Problem with Neurolaw", Prof. Opderbeck "argues that a revitalized sense of transcendence is required to avoid the violent metaphysics of reductive neurolaw and to maintain the integrity of both 'law' and 'science.'"
This essay, by Thomas Powers, appeared more than a decade ago in National Affairs. I imagine many readers are already familiar with it, but I was not. It was, for me, helpful (and sobering) with respect to our currently boiling arguments about religious accommodations and exemptions from generally applicable laws and -- relatedly -- about the tension between religious freedom, on the one hand, and some antidiscrimination policies and laws, on the other. Read it, if you haven't already, or re-read it, if you already have.
Saturday, March 1, 2014
In the course of the conversations, debates, arguments, etc., about the recently vetoed Arizona RFRA proposal specifically, and exemptions from antidiscrimination laws generally, the questions are sometimes posed (a) whether a particular action reflects or is motivated by "bigotry" or by "sincerely held religious belief" and (b) whether there's really a clear line between the two.
We could say, I suppose that "bigotry" is just the word we attach to motivating premises and beliefs that seem particularly offensive or insufficiently rational or connected with reality. If we say this, then the line separating "bigotry" from "sincerely held religious belief" is not clear at all. Or, we could simply declare that an otherwise "bigoted" (under definition) action will *not* be labelled as "bigoted" if it reflects a certain kind of insufficiently rational belief, i.e., "sincerely held religious belief." But, this would simply be a declaration, an ipse dixit of sorts.
I'm not sure we should invest too much time or energy in trying to distinguish sharply -- for purposes of the typical liberal political community's antidiscrimination laws -- between conduct that is motivated by "sincerely held religious belief" and conduct that is motivated by "bigotry." It seems to me a better approach might be to start with this question: "When, if ever, should we accommodate or tolerate conduct that (i) the political community has decided, for reasons that it thinks sufficient and appropriate, to prohibit and (ii) is motivated by sincerely held religious belief?"
Of course, we could say "never", but I don't think we should (because we are committed, for now, to some form of religious liberty. We could say, "we should accommodate, unless the conduct is motivated by 'bigotry.'" Instead, maybe we should just say "we should tolerate or accommodate otherwise prohibited conduct that is motivated by sincerely held religious belief if it is possible to do so reasonably efficiently and without undermining the policies or values that underlie the prohibition or regulation." The "without undermining" inquiry is hardly cut-and-dried, but I think it could be done without trying to cull through "religious" motivations and separate them from "bigoted" ones. Thoughts?
This presentation and paper, by uber-law-blogger Prof. Paul Caron (Pepperdine) looks really interesting: Faculty Scholarship at Faith-Based Law Schools: Long Tails, Moneyball and Rankings in a Time of Crisis. Quoting Paul: "I argue that religious law schools are uniquely positioned to thrive in the midst of the law school crisis because our faith-fueled commitment to our students and to each other empowers us to better define the pathways to success for our schools, our students, and our faculties and equips us to make that journey together."
