Go here for information about what looks to be a fascinating conference this fall at Notre Dame:
Wednesday, June 3, 2015
"Transcending Orthodoxies" conference on academic freedom at Notre Dame
Friday, May 29, 2015
Robin Wilson on SSM, religious freedom, and Bob Jones
Here, in USA Today, is my friend Robin Fretwell Wilson, following up on the mentioning in the same-sex-marriage arguments last month of the possibility that religious institutions that reject same-sex marriage will get "Bob Jones-ed" (i.e., lose tax exemptions):
If the Supreme Court finds a constitutional right to same-sex marriage, it can, and should, leave room for states to accommodate those who adhere to a traditional view of marriage. And if the Supreme Court allows the states to debate and decide the marriage issue themselves, then states will continue to have the freedom to accommodate both gay couples and religious dissenters. Every state that has legalized same-sex marriage to date has done this, and while some of their solutions are imperfect, all of them would be a huge improvement over a winner-take-all approach that secures rights for some at the expense of others.
The reality is that same-sex marriage and religious dissent can coexist in this country, but it will require hard work and a lot of good will from all sides.
The "culprit" in the current threats to religious liberty
At Distinctly Catholic, Michael Sean Winters has a post called "Remember, Scalia is the culprit", in which he (among other things) responds to the concerns expressed (appropriately, in my view) by a friend of his about Judge Posner's opinions in the ongoing Notre Dame litigation. (On those opinions, read -- for starters -- Kevin Walsh.)
Winters notes that the federal RFRA, which Posner interpreted and applied (incorrectly, in my view), was a response to the Court's Smith opinion, which was authored by Justice Scalia. (I would add that, in my view, it makes more sense to read Smith as acknowledging what the Court had really been doing for the previous three decades -- except in Yoder -- than as dramatically departing from longstanding precedent or understanding.) He concludes with this:
I do not expect, and I would not applaud, bishops denouncing Justice Scalia from the pulpit. But, when an advocate for religious freedom, bishop or otherwise, denounces Obama and leaves Scalia unscathed, you know that there is an agenda at work and it does not have to do with protecting religious freedom. It is a political and legal agenda. That may be fine for the Becket Fund. It may be fine for GOP presidential aspirants. It should not be fine for the Church.
I respectfully disagree. It matters, a lot, when evaluating what actors do, what those actors' roles empower and authorize them to do. Justice Scalia (and the other justices who joined his opinion) believed that the First Amendment's Free Exercise Clause is given, not made, and that it does not authorize courts to create exemptions from generally applicable laws that burden -- so long as they don't target -- religiously motivated practice. This belief is not accepted by all experts, to be sure, but it is accepted by some and is, at the very least, plausibly rooted in history and practice. (For more, see this short paper of mine.)
In contrast, President Obama (or any other President, or any other elected or appointed official who is exercising the discretion that they in fact possess to accommodate -- generously, stingily, or not at all) should be seen as making a choice -- he could accommodate religion more, and better, but has decided that so much accommodation, but not more, is appropriate -- and not as limited in his choice by the given-not-made meaning of the Constitution. (There are some First Amendment limits on accommodation, but they are not, in my view, implicated in the HHS mandate debate.)
"The Church" has no expertise in constitutional law and so -- while she certainly can criticize, on moral grounds, the rule that Justice Scalia believes our Constitution sets down -- it seems appropriate not only for (the great folks at) the Becket Fund but also for bishops, etc., to distinguish between judges who interpret the positive law and officials who could accommodate religious believers and respect religious freedom but choose not to.
Now, all that said, I think Winters is correct to remind his friend, and his readers, that the business of accommodating religious objectors to general laws necessarily involves making decisions -- debatable judgment calls -- about what to "count" or recognize as a "substantial burden" or what to credit as a "compelling" government interest. Laws like RFRA do not, and could not plausibly, give to religious objectors an automatic trump or veto. Their claims have to be evaluated and assessed, and this process will not be neat and mechanical. The problem with Posner's opinion is not, as I see it, that he set about determining what, in fact, the law requires Notre Dame to do, but that he did so in a way that is not consistent with the precedent (Hobby Lobby) that the Court told him to apply.
Thursday, May 28, 2015
Heise reviews Garnett & Brinig, "Lost Classroom, Lost Community"
Check it out. Here is the abstract of the review:
The central themes in Brinig and Garnett’s Lost Classroom, Lost Community: Catholic Schools’ Importance in Urban America distill as easily as they haunt. Well-understood is that the United States needs to improve the quality of education as well as its equitable distribution across various sub-classes of students. Paradoxically, students most in need of high-quality education services — including minority students, particularly those from low-income households in urban areas, are more likely assigned to under-performing public schools. Historically, the nation’s Catholic schools provided urban students, including many minority students from low-income households, with more efficacious yet less expensive educational services than their urban public school counterparts. Brinig and Garnett’s book identifies and discusses an especially lethal interaction of an array of key trends: While the need for high-quality, low-cost education services continues its ascent, Catholic school closures accelerate and, in so doing, threaten efforts to help improve the urban education landscape. To make matters even worse, as Brinig and Garnett also argue, the consequences of Catholic school closures extend beyond the education realm and degrade the stability of urban communities. Brinig and Garnett’s work on this topic is important as the policy issues remain timely and novel as they enlist data and empirical methods into their analyses. As a result, Brinig and Garnett’s book is not only important for what it says, but also how it says it.
Wednesday, May 27, 2015
"Should Washington Try to Change Religious Beliefs?"
Here is a short piece I did for USA Today, which returns to the question raised in this earlier post. A bit:
. . . The idea that public authorities and officials should take editorial aim at certain religious beliefs and revise them to better serve the government's needs should make Americans uneasy. It seems to conflict with foundational and constitutional commitments, with James Madison's famous assertion that religion is "wholly exempt" from the "cognizance" of "civil society," and with Thomas Jefferson's insistence that the "legitimate powers of government" don't extend to religious views because "it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket," he quipped, "nor breaks my leg."
In fact, though, governments do care — even if they do not always admit it — about what religious people believe and what religious leaders teach. . . .
Religious freedom under law is an accomplishment, one that is both relatively new and always vulnerable. It is vulnerable precisely because it is often inconvenient to political authorities and officials. The constitutional rules that governments are supposed to keep out of religious disputes and stay away from religious questions are good ones, but it is important to remember that they cut strongly against what they have always done and probably always will try to do. And so, if we value religious liberty and freedom of conscience, we will be on guard not only against overt change-campaigns like China's but also against nudges, temptations, and bribes from our own leaders.
Tuesday, May 26, 2015
Mark Rienzi on SSM, substantive due process, and religious liberty
At the Stanford Law Review, Mark Rienzi has clear and short paper ("Substantive Due Process as a Two-Way Street") in which he suggests an approach to the pending same-sex-marriage cases that, he suggests, will reduce the conflict and tension that the Court's Equal Protection / "animus" approach risks causing. He writes, among other things, "There is no inherent conflict between same-sex marriage and religious diversity. As with most other issues, our society remains capable of adopting a live-and-let-live approach in which same-sex marriage is recognized as a constitutional right, but religious dissenters are neither punished for their beliefs nor forced to violate them."
Thursday, May 21, 2015
Movsesian on the Pew Survey and the "nones"
Over at First Things, Mark Movsesian has posted some as-per-usual insightful thoughts on the recent Pew survey that, among other things, found that the number of Americans who identify as Christian, or with specific Christian denominations and traditions, is declining. He writes:
[I]t’s hard to see how the rise of the Nones is good for religious freedom. As people check out of organized religion, they are less likely to view it as important and worthy of protection. People with even marginal affiliations may still understand and endorse the importance of religious commitment. The fact that they affiliate at all shows that religion makes up at least some part of their identity. Once people cut their ties completely, however, they are much less likely to be sympathetic to religious communities. If the future of religious freedom depends on the ability of believers to persuade our fellow citizens that faith commitments deserve respect and protection, that task may well become more difficult in the years ahead.
May 17, 1924: The Battle of South Bend (Notre Dame v. the Klan)
A few days ago was the anniversary of the day in 1924 that Notre Dame students disrupted a Klan rally. The incident was part of a longer-running clash between the Klan and the Irish. Read more here.
Saturday, May 16, 2015
Alan Hurst on marriage, compromise, and changing minds
With Alan's permission, I am posting a version of a thoughtful comment he shared with the Law and Religion listserv:
“You shouldn’t worry about gay marriage and religious freedom,” I’ve occasionally been told. “In thirty years, pretty much nobody’s going to be religiously opposed to gay marriage, so gay marriage won’t interfere with anybody’s religion.”
The people who’ve told me this generally meant well, but I think their willingness to think this sort of thing—and to imagine that believers concerned about religious freedom would find it comforting—is a testament to the ignorance about religion that pervades certain parts of our society.
To begin with, few believers could possibly be comforted by someone saying, “You shouldn't worry about the long run because your religions will just change their minds on this issue anyway.” That statement suggests at least one of the following two ideas:
- that religious beliefs are entirely a product of time and culture, with no basis in any transcendent truth and no capacity to resist broader cultural movements.
- that religious beliefs opposing gay marriage are purely an irrational bias and, like religious opposition to interracial marriage, will gradually vanish as gay marriage becomes commonplace and believers' aversion to gay relationships is worn down by familiarity.
These ideas are too big for me to try to refute here, and certainly there are people who believe them. But if you’re among those people, I hope you’ll consider for a moment how they sound to believers who disagree with you. In essence, when you say, “Your religion will change on this issue,” you’re saying either, “The beliefs you've built your life on have no basis in reality” or “Your bigotry has led you to misunderstand your own religion.” True or false, these two thoughts are quite the opposite of comforting to a concerned believer; indeed, they’re likely to convince some believers that you really don’t understand religion and that you really are out to get them.
But there’s a more practical reason not to tell believers that their religions will soon abandon traditional Christian sexual ethics: if you do, there’s a good chance you’ll be wrong.
Partially I say this because the analogy between religious racism and religious heteronormativity is at most superficially accurate. Traditional Christian teachings about sex just have a much different place in the church than American Christians’ teachings about race ever did—theologically, practically, socially, historically, etc. These things are simply not the same. Ross Douthat wrote briefly (but I think accurately) about this here.
And partially I say this because religion has always been international in nature, and like everything else it's getting to be more so. The heart of Christianity is moving from Europe and North America to Latin America, Africa, and Asia. Within a few decades, China may be home to more Christians than any other country. American Catholicism has never been especially important to the Catholic church, and even we Mormons now have more members outside the U.S. than inside.
Although the gay rights movement is likewise an international phenomenon, it’s not likely to play out everywhere the same way it has here. There are some places where gay marriage will not be legal for the foreseeable future; there are others where legalization will not lead to the sort of pressure on traditionalists that has begun to be exerted here. So long as such places exist, their Christians are going to give some ballast to American Christian opposition to gay marriage. Indeed, to some extent it’s already happening—witness, for example, the ties springing up between conservative American Episcopalians and African Anglicans.
My prediction? I think religious opposition to gay marriage is going to be like religious opposition to premarital sex. The polls will move more rapidly than anyone used to think possible, and in a decade or two only 20% of Americans will think gay marriage is immoral. And then the graph will bottom out, and 20% of Americans will still be thinking that for a long time.
So, the upshot of all this: don’t proclaim too loudly that the present controversies are temporary because we’re all going to agree about all of this very soon. It’s rude: it tells believers you don’t take their beliefs seriously. It’s counterproductive: it will only heighten the fears of people who see gay marriage as a threat to their way of life. And there’s a good chance that it will prove to be wrong, and that we’re stuck for the foreseeable future with the hard work of drawing distinctions and making compromises. The sooner we all commit to it, the better.
Thursday, May 14, 2015
"Pope Benedict XVI's Legal Thought"
What a treat -- I received in the mail today my copy of Pope Benedict XVI's Legal Thought, edited by my friends Andrea Simoncini and Marta Cartabia, and published through John Witte's Cambridge Law and Christianity Series. Learn more about (and buy) the book here. The description:
Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. The speeches he delivered in these contexts reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along with the commentary from a number of distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they nevertheless are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a “public teaching” on the topic of justice and law.
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