Monday, November 20, 2017
Just a brief post to collect some of my recent work on liberalism and Catholicism, in various venues and in reverse chronological order of publication.
The University Bookman: “The Ark of Tradition”
“A Christian Strategy” (or, as I also think of it, “The Esther Option”), First Things
“The Catholic Constitution”, First Things
“Liturgy of Liberalism”, First Things
Kyriarchy and Constitutionalism - Mirror of JusticeTypePad › mirrorofjustice › 2016/11 › k...
I'm looking forward to this event -- a discussion about the Trinity Lutheran case and its implications, with my friend Prof. Andrew Koppelman -- in Chicago today. CLE credit is available. If you're around, stop by!
Friday, November 17, 2017
Two attorneys at the Becket Fund for Religious Liberty — Luke Goodrich and Rachel Busick — have just posted one of the first empirical studies of federal religious freedom cases since Hobby Lobby.
Some critics of Hobby Lobby predicted that the decision would open the floodgates to a host of novel claims, transforming religious freedom from a shield for protecting religious minorities into a sword for imposing majoritarian values. But this study finds those dire predictions to be unsupported. Instead, it finds that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. The study also highlights several interesting doctrinal developments in recent litigation over RFRA, Trump’s travel ban, and the Establishment Clause.
The most intriguing empirical research tells us something new, such as that the conventional wisdom is mistaken or overstated. That is true here, as Goodrich and Busick reach this conclusion:
[Hobby Lobby] has not prompted a flood of new litigation by Christians or for-profit corporations. If anything, its main effect has been to provide more protection for religious minorities like the Native Americans who won the right to use eagle feathers in McAllen, or the Muslim prisoner who won the right to grow a beard in Holt. These religious minorities were the main religious liberty claimants before Hobby Lobby, and they remain the main religious liberty claimants afterwards. Ironically, then, the main beneficiaries of the win for Christian claimants in Hobby Lobby may be non-Christian religious minorities.
You can find the full article here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3067053. I highly recommend it! I’m see that it has already drawn more than 150 downloads. Add to the statistics by downloading it yourself today.
Wednesday, November 15, 2017
There is now online a podcast conversation on religious freedom that I recently did with the Rev. Leith Anderson. Leith is the president of the National Association of Evangelicals, a wonderful and prolific writer on Christian living, and the former senior pastor of Wooddale Church in the Twin Cities. He has been interested in religious-freedom issues, and commenting thoughtfully on them, for some time. It was great fun to have this conversation with him. A sample comment of mine, in response to Leith's question "Why should Christians work on protecting people of other faiths in the U.S.?":
Two kinds of reasons. One is a matter of principle: Christians know that a commitment of faith, a relationship with the Divine, is a matter of the heart; it can’t be real and valid if it’s coerced by government. Human dignity means that the soul should be free to seek and respond to God, even if its response is mistaken. The second reason is pragmatic: If Christians want to preserve freedom for their own religious exercise, they have to recognize it for others. You won’t get sympathy for your plight if you don’t show it for others.
That's the title of a new book by Cathy Kaveny. The subtitle: Christian Moralists and American Legal Thought. The book, published by Oxford University Press, "proposes new methodological approaches to Christian ethics-using law as a source and conversation partner; shows how religion can move beyond treating law as a locus of the culture wars to seeing it as a source of moral knowledge and wisdom; and demonstrates how examples from secular law can help us integrate special ethics, like medical ethics, with broader questions of social justice." You can read about the book--and about Cathy--here. Highly recommended:
"Cathleen Kaveny's new work brilliantly demonstrates not only that law can be a fruitful conversation partner for theological ethics, but that it is a necessary one. Her mastery of the fields of law, ethics, and theology is marshaled throughout as she probes perennially vexing problems and explores new questions. Highly original, sometimes provocative, always illuminating, Ethics at the Edges of Law is a tour de force." --Linda Hogan, Professor of Ecumenics and former Vice-Provost of Trinity College Dublin
"Ethics at the Edges of Law is one of the most important recent books at the intersection of law and theology. Kaveny's thoughtful and at times unconventional engagement with some of the major twentieth-century figures in these two disciplines offers glimmers of both tragedy and hope-and a reminder that our lived experiences unfold in the shadow of both."--John D. Inazu, Sally D. Danforth Distinguished Professor of Law and Religion, Washington University in St. Louis
"Cathleen Kaveny is one of the most important scholars in the interdisciplinary field of law and religion since the field began to flourish about forty years ago. Ethics at the Edges of Law is a superb book. In it, Kaveny succeeds in doing precisely what she set out to do, namely, 'jump start . . . a complementary interdisciplinary conversation . . . centered in religious studies and theology and reaching out to the legal field.'"--Michael J. Perry, Robert W. Woodruff Professor of Law, Emory University
Tuesday, November 14, 2017
[The Siege of Lisbon, by Roque Gameiro (1917)]
David Brooks has published an insightful warning of the mutually repelling characteristics of the true believers on both extremes of the political spectrum today. In today’s New York Times (here), Brooks calls this behavior the “Siege Mentality,” which “starts with a sense of collective victimhood” that feeds “a deep sense of pessimism” and “floats on apocalyptic fear.”
This approach is seductive, offering a kind of a false high that, like other misguided addictions, proves self-destruction: “The odd thing is that the siege mentality feels kind of good to the people who grab on to it. It gives its proponents a straightforward way to interpret the world — the noble us versus the powerful them.” But, in the end, “[g]roups smitten with the siege mentality filter out discordant facts and become more extreme versions of themselves, leading to further marginalization.”
Worst of all, those who surrender to the Siege Mentality lose their own souls, becoming the opposite of what they sincerely believed themselves to be at the beginning. “Evangelical Christians, for example, had a humane model for leadership — servant leadership — but, feeling besieged, they swapped it for Donald Trump, for gladiator pagan leadership.”
As Catholics, we need to remember that faithfully standing by what we think is right need not fall into a hateful disregard for those who disagree or a willingness to compromise our principles by temporary political alignments with those whose past conduct and present behavior display contempt for those very principles.
A bracing, sobering read, here, about the state of Catholic higher education and some of the forces that are shaping it. I share many of the author's concerns about many of the particulars mentioned, though I think it sweeps a bit too broadly in places and also neglects the good things that are happening -- and, in many respects, the Catholic-identity improvements that have happened in recent years -- at my own University of Notre Dame. The author writes:
Still, despite all the evidence that most Catholic colleges and universities have lost their way, cause for hope exists in the flourishing of Catholic colleges—Christendom, Franciscan, Ave Maria, the University of Dallas, Wyoming Catholic, John Paul the Great, St. Thomas More College in New Hampshire, California’s Thomas Aquinas, and others—that remain committed to a Catholic identity.
I share this admiration for much of what's happening at these newer, smaller, intentional Catholic colleges. At the same time, "cause for hope exists in the flourishing" of, e.g., the McGrath Institute for Church Life, ND Vision, Echo, the Alliance for Catholic Education, the Program on Church, State & Society, the Center for Ethics & Culture, the Tocqueville Program, etc. As I've said before, if one cares about Catholic higher education (and, in my view, we all should), then one should care about, and pray for, Notre Dame (and not just the Fighting Irish!).
Monday, November 13, 2017
Touro Law Center is pleased to announce the Fifth Annual National Moot Court Competition in Law and Religion. More info is available here.
I've recently posted on SSRN my forthcoming article, "A Putative Right in Search of a Constitutional Justification: Understanding Planned Parenthood v Casey's Equality Rationale and How it Undermines Women's Equality." In the article, I argue that women's equality is the key interpretative lens through which to understand Casey's controversial reaffirmation of Roe but one that has not been understood adequately by those most critical of Casey. The article aims to fill the void - and specifically critiques the "reliance" arguments made in Casey. It could be understood as a companion to my 2011 HJLPP article, "Embodied Equality."
The Federalist Society at Harvard and Yale law schools have had me to campus to speak on the article in recent months. I'll be out at Stanford in February doing the same.
Also, happy to announce I am beginning a year-long fellowship at Harvard Law School in February as a Visiting Scholar, under the faculty direction of Mary Ann Glendon. I am working to complete a book on women's rights that most prominently features her work.
Friday, November 10, 2017
Two days ago, Rick offered reflections on the successful confirmation process of Amy Barrett to the 7th Circuit. This morning in the New York Times, former federal judge Shira Scheindlin (now on the board of the Lawyers Committee for Civil Rights under Law) serves notice that the false assertions against Barrett will continue long after her swearing-in. Scheindlin's op-ed attacks several of Trump's lower-court nominees and appointments, including, sadly but I guess inevitably, Barrett.
There's the same old, willfully misleading claim that "[i]n a 1998 article, [Barrett] criticized the Supreme Court justice William Brennan for saying that his oath to uphold the law trumped any obligation to his Roman Catholic faith." For the umpteenth time, what Barrett and her co-author criticized (in a very indirect, gentle way) was Brennan's apparent suggestion that he would stay on a case and rule in a way that violated his faith. Barrett wrote then, and said this fall, that in case of an unavoidable conflict, the Catholic judge should follow her faith--and the law--by using the option of recusal that the law itself offers. That is the exact opposite of that Scheindlin and the other critics imply: that Barrett advocated ruling based on one's faith rather than the law. A former federal judge, more than anyone, knows better.
There's other wrong or distorted stuff in there, too, about Barrett's views on precedent. The same stuff that's been rebutted before.
So far as I can tell (and I haven't looked at it closely), Trump's nominees include a few strange and dubiously qualified names. (As well as some very strong ones, including David Stras, whose nomination to the 8th Circuit remains tied up.) Barrett is plainly among the very strong ones. But some of the critics will keep trying to stick her in the dubious group, not because of what she would actually do on the court of appeals, but because of their fears that (1) she is a dangerous symbol of a highly qualified woman who takes her Catholic faith (including the controversial parts) seriously and (2) she might get on a short list for the next step up.
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