On Friday, I'm giving a lecture (thanks to the University of Arizona and the Notre Dame Alumni Association) in Tucson on "Law, Religion, and Politics: Understanding the Separation of Church and State." More info here. In a nutshell: "Healthy secularity" is way to understand "the separation of church and state" and this understanding is good for religious freedom.
Monday, September 15, 2014
An upcoming lecture in Tucson
Friday, September 12, 2014
"Arc of the Universe": A new blog from the Center for Civil and Human Rights
Check it out. Here's a bit about the project:
Beliefs about justice typically lurk just beneath headlines from around the world, whether they deal with separatist movements in Ukraine, Kurdistan, or Sri Lanka; Islamic rebellions in Syrian and Iraq; U.S. policy in Iraq and Afghanistan; war between Israel and Palestine; global development policy; women’s rights; economic justice; the drug wars in Latin America; the one-child policy in China; and religious freedom. Usually, these beliefs go unexamined. The same is often true even in the academy. In American political science, for instance, justice is sharply separated from the scientific study of politics. Arc of the Universe is devoted to resurfacing justice – examining the day’s headlines from the deep commitments of ethical traditions. Arc of the Universe is also distinctive in bringing religion into the picture. Some posts will appeal to religion while others will be rendered in secular terms. Arc of the Universe is a place where secular and religious meet in conversation about global justice.
So come follow Arc of the Universe!
"Under Caesar's Sword: A Christian Response to Persecution"
On September 18, the Center for Civil and Human Rights at the Notre Dame Law School (which is directed by my friend and colleague, Dan Phipott), is hosting an important and interesting-looking conference, "Under Caesar's Sword: A Christian Response to Persecution." More info here. This is the beginning of an exciting, ongoing interdisciplinary research project. Stay tuned.
"Under Caesar's Sword" . . . aims to document and understand the ways in which Christian communities deal with the violent suppression of their rights. Recently awarded a $1.1 million grant from the Templeton Religion Trust, CCHR and RFP will host a panel of experts on religious freedom at Notre Dame Law School. These experts, along with many others, will set out across the globe in the next year to investigate the varied methods by which Christian communities respond to repression, from complex diplomacy to simple flight.
Thinking more clearly about "discrimination"
Here's a nice piece, called "Discrimination, or Intellectual-Lite?", at God, People, Place. The author, Charlie Peacock, says (among other things):
. . . I am committed to discriminate thinking, that is the intellectual ability to differentiate and separate – to tell the difference between one thing and another. What education I do have encouraged the promotion of discriminate thinking and the cultivation of the ability to evaluate, make comparisons, and categorize.
Yet, there is a disturbing trend among our American institutions of higher learning. In the interest of anti-discrimination, the keepers of our intellectual future have forgotten how to think discriminately – to tell the difference between one thing and another. . . .
For reasons I tried to set out here ("Confusion about Discrimination") and here ("Religious Freedom and the Antidiscrimination Norm"), I agree!
A symposium on Dworkin's "Religion Without God"
The Boston University Law Review has posted a number of excellent contributions to a symposium on Ronald Dworkin's Religion Without God. Talk about an abundance of riches! There are pieces by James Fleming, Jeremy Waldron, Stephen Carter, Paul Horwitz, Andy Koppelman, Cecile Laborde, Linda McClain, Micah Schwartzman, and Steven Smith. Wow!
Monday, September 8, 2014
A fascinating "what if?" about colonial America
What if the first American colonists had been Catholics seeking refuge from Elizabethan persecution? A new book from Oxford ("God's Traitors: Terror and Faith in Elizabethan England") tells the story:
Over the summer of 1582 a group of English Catholic gentlemen met to hammer out their plans for a colony in North America — not Roanoke Island, Sir Walter Raleigh’s settlement of 1585, but Norumbega in present-day New England.
The scheme was promoted by two knights of the realm, Sir George Peckham and Sir Thomas Gerard, and it attracted several wealthy backers, including a gentleman from the midlands called Sir William Catesby. In the list of articles drafted in June 1582, Catesby agreed to be an Associate. In return for putting up £100 and ten men for the first voyage (forty for the next), he was promised a seignory of 10,000 acres and election to one of “the chief offices in government”. Special privileges would be extended to “encourage women to go on the voyage” and according to Bernardino de Mendoza, the Spanish ambassador in London, the settlers would “live in those parts with freedom of conscience.”
Religious liberty was important for these English Catholics because they didn’t have it at home. The Mass was banned, their priests were outlawed and, since 1571, even the possession of personal devotional items, like rosaries, was considered suspect. . . .
Sir William Catesby did not sail the seas or have a role in the plantation of what — had it succeeded — would have been the first English colony in North America. He remained in England and continued to strive for a peaceful solution. “Suffer us not to be the only outcasts and refuse of the world,” he and his friends begged Elizabeth I in 1585, just before an act was passed making it a capital offense to be, or even to harbor, a seminary priest in England. Three years later, as the Spanish Armada beat menacingly towards England’s shore, Sir William and other prominent Catholics were clapped up as suspected fifth columnists. In 1593 those Catholics who refused to go to church were forbidden by law from traveling beyond five miles of their homes without a license. And so it went on until William’s death in 1598.
Seven years later, in the reign of the next monarch James I (James VI of Scotland), William’s son Robert became what we would today call a terrorist. Frustrated, angry and “beside himself with mindless fanaticism,” he contrived to blow up the king and the House of Lords at the state opening of Parliament on 5 November 1605.
"Moral and Factual Claims in Burwell v. Hobby Lobby: A Response to Prof. Colb"
[A reader, Christian E. O'Connell, sent in the following, and asked if I would be willing to post it at MOJ. I am happy to do so.]
Moral and Factual Claims in Burwell v. Hobby Lobby: A Response to Professor Colb
Christian E. O’Connell [*]
In her recent essay at Justia’s Verdict, titled “What Counts as an Abortion, and Does It Matter?,” Cornell law professor Sherry Colb waxes philosophical about the normative and empirical claims she perceives to be at work in Burwell v. Hobby Lobby Stores, Inc., the Religious Freedom Restoration Act (“RFRA”) controversy recently decided by the U.S. Supreme Court.
Professor Colb laments as “underdeveloped” the factual issues raised by the Hobby Lobby plaintiffs’ claims about the so-called “morning-after” pills and intra-uterine devices to which they object, while acknowledging strong arguments in favor of judicial deference to such claims. (I’ll refer here to the RFRA claimants in the consolidated litigation as, collectively, the “plaintiffs.”) Yet, Colb argues, the plaintiffs’ premise that human life begins at conception suggests a standard for assessing whether participation in a given birth control method violates a RFRA claimant’s religious commitments. She submits that, by that standard—even if the embryo’s humanity and the drug’s implantation-inhibiting potential are conceded—it’s doubtful whether the morning-after pill “is an abortifacient that literally kills embryonic life,” and accordingly whether there is any corresponding violation of religious beliefs.
Nevertheless, the formal distinctions on which Colb’s thesis relies are suspect in this context, and it’s far from clear in any event that they support her conclusion.
Notre Dame crushes Michigan . . . and there was much rejoicing
As this post discusses in more detail, the media hype about a "storied rivalry" (etc.) between the Fighting Irish and the Skunk Bears has manage to inflate a relatively recent and not-THAT-long series into something it's not. Of course, it could have been a "storied rivalry" (etc.) had Michigan officials (like many others in the Big 10 and elsewhere) in the first half of the 20th century not based decisions regarding the University of Notre Dame on fears and prejudices regarding Catholicism. In Catholic Heaven, I suspect this was the reaction.
A misguided ministerial-exception decision in Indiana
I've been following closely -- and maybe some of you have been, too -- this story, here in Indiana. My home diocese of Ft. Wayne-South Bend chose not to renew the contract of a teacher at a parochial (K-8) school after she underwent in vitro fertilization. (The article describes this in one place as "treatment[] for infertility", which seems to misstate the diocese's position).
A local federal trial judge is allowing Emily Herx's Title VII sex-discrimination claim to go forward (but not her ADA claim). According to the judge, Title VII's accommodation for religious employers does not apply because this accommodation does not give "freedom to make discriminatory decisions on the basis of race, sex, or national origin." (This is true, but it is a mistake, in my view, to characterize what the Diocese did as being "discrimination" on the basis of sex as opposed to a religious-mission-related staffing decision.) Also, the judge rejected the Diocese's ministerial-exception argument because, according to the news story, "nothing so far suggested Herx fit the definition of a 'minister' of the church." In my view, a teacher at a K-8 parochial school is, presumptively, within the coverage of the ministerial exception.
Stay tuned. (And . . . expect more of this.)
Lynn school punish Gordon College students for College president's letter
Here is the story, in the Boston Globe. Because "school president D. Michael Lindsay signed a letter to the White House last month seeking an exemption from President Obama’s executive order barring federal contractors from discriminating" -- a letter that was signed by a diverse and bipartisan group of academics, scholars, religious leaders -- the local school board is now refusing to allow "small groups of volunteers" from the College "in Lynn’s schools for student teaching or other positions to fulfill requirements toward degrees in education and social work."
Expect more and more of this kind of thing.
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