Wednesday, March 20, 2013
Murray, "The Elephant in Hosanna-Tabor"
My former student, Brian Murray, has recently published an insightful paper on the Hosanna-Tabor case, "The Elephant in Hosanna-Tabor" (link) which explores the question -- which Hosanna-Tabor did not have to answer definitively -- of how to define, or identify, "religious" institutions. Check it out.
A powerful thought
This quote, from the Fifth General Conference of the Bishops of Latin America and the Caribbean (2007), appears at the front of George Weigel's new book, Evangelical Catholicism: Deep Reform in the 21st Century Church (which I recently read and enjoyed very much):
The Church is called to a deep and profound rethinking of its mission. . . . It
cannot retreat in response to those who see only confusion, dangers, and
threats. . . . What is required is confirming, renewing, and revitalizing the newness of the Gospel . . . out of a personal and community encounter with Jesus Christ that raises up disciples and missionaries. . . .
A Catholic faith reduced to mere baggage, to a collection of rules and
prohibitions, to fragmented devotional practices, to selective and partial
adherence to the truths of faith, to occasional participation in some
sacraments, to the repetition of doctrinal principles, to bland or nervous
moralizing, that does not convert the life of the baptized would not withstand
the trials of time. . . . We must all start again from Christ, recognizing [with
Pope Benedict XVI] that “being Christian is . . . the encounter with an event, a
person, which gives life a new horizon and a decisive direction.”
Tuesday, March 19, 2013
Garnett at U. Toledo: "Religious Freedom in America"
Thanks to my friend Prof. Lee Strang, I'll be giving the Stranahan Lecture at the University of Toledo School of Law next week (Tuesday, March 26, at noon). You can read more about the event here. If you are nearby, please come and cheer wildly.
Helfand: "What is a 'Church'"?"
For those of us -- and that should be all of us! -- who are interested in the religious-freedom-under-law issue, this new paper by Michael Helfand should be of interest. It's called "What is a 'Church'? Implied Consent and the Contraception Mandate." Here is the abstract:
This Article considers the “religious employer” exception to the “contraception mandate” – that is, the “preventative care” requirements announced by Department of Health and Human Services pursuant to the Patient Protection and Affordable Care Act. This exception has triggered significant litigation with a variety of employers claiming that they have been excluding from the “religious employer” classification in violation of both the First Amendment and the Religious Freedom Restoration Act. In considering these claims, this Article applies an “implied consent” framework to these cases, which grounds the authority of religious institutions in the presumed consent of their members. On such an account, consent can be assumed so long as members understood the unique religious objectives of the institution when they joined, thereby implicitly authorizing the institution to make rules related to accomplishing these uniquely religious objectives. Building on this implied consent framework, this Article argues that the First Amendment should protect institutions from the requirements of the contraception mandate so long as these institutions were both organized around a core religious mission and where that religious mission was open and obvious to employees. In such circumstances, courts should presume that employees recognized the unique religious objectives of their employer and thereby implicitly authorized their employer to make rules related to achieving these religious goals.
Important religious-freedom hearing next week
Next week, the U.S. Commission on Civil Rights is holding a public hearing on questions arising at the intersection of religious freedom and anti-discrimination laws. Read more here. (And, note that comments for the Commission may be submitted and are welcome.)
This is, in my view -- as I discuss in this book chapter -- an important set of questions. A number of excellent religious-freedom scholars, familiar I'm sure to MOJ readers, will be presenting, including John Inazu, Michael Helfand, and our own Marc DeGirolami.
Rienzi: "God and the Profits"
Over at Public Discourse, Prof. Mark Rienzi has posted a short essay, "God and the Profits: Religious Liberty for Money-Makers," that is based on his new article by the same name. Here is the abstract:
Is there a religious way to pump gas, sell groceries, or advertise for a craft store?
Litigation over the HHS contraceptive mandate has raised the question
whether a for-profit business and its owner can engage in religious exercise
under federal law. The federal government has argued, and some courts have
found, that the activities of a profit-making business are ineligible for
religious freedom protection.
This article offers a comprehensive look at the relationship between profit-making and
religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.
Many religions impose, and at least some businesses follow, religious
requirements for the conduct of profit-making businesses. Thus businesses can be
observed to engage in actions that are obviously motivated by religious beliefs:
from preparing food according to ancient Jewish religious laws, to seeking out
loans that comply with Islamic legal requirements, to encouraging people to
“know Jesus Christ as Lord and Savior.” These actions easily qualify as exercises of religion.
It is widely accepted that religious freedom laws protect non-profit organizations. The argument for
denying religious freedom in the for-profit context rests on a claimed categorical distinction between for-profit and non-profit entities. Yet a broad examination of how the law treats these
entities in various contexts severely undermines the claimed categorical
distinction. Viewed in this broader context, it is clear that denying religious
liberty rights for profit-makers would actually require singling out religion
for disfavored treatment in ways forbidden by the Free Exercise Clause and federal law.
St. Francis, Radical for Love
by Charled Reid, University of St. Thomas School of Law[
[Crossposted at ReligiousLeftLaw.]
In today's world, there is perhaps no more familiar or more comforting saint than the medieval mendicant St. Francis of Assisi. Catholics and non-Catholics alike hold him in reverence and awe. What is it about the actual, historical St. Francis that drives such an enthusiastic response eight centuries after his death? For surely there is not another saint in Christendom who commands such devotion.
In truth, few more radical individuals have ever walked the earth. St. Francis, like no one before or since, captured the essence of what it meant to follow the example of Jesus Christ. Jesus, of course, commanded the impossible. He ordered his followers to love one another without limit or precondition. Whatever stands in the way of our love must be removed. If there is a boundary or barrier to be overcome, we must overcome it. Sacrifice, always and everywhere, for the good of others. Sacrifice, offered in full rejoicing at the opportunity to expend ourselves totally for our neighbor's well-being. Jesus commanded and St. Francis, more than any other human being, attempted to fulfill this simple yet unachievable demand.
When St. Francis broke with his father, who had hoped he would enter the world of business and commerce, he stripped naked in the town square of Assisi, handing back his clothes to the befuddled older man. When Brother Ruffino, of noble descent and one of Francis's first followers, hesitated to preach, Francis commanded him to preach naked. Side-by-side before the assembled congregants, these two naked men denounced pride and pretense in the name of utter humility. When you stand naked before God and man, after all, you kill the old self, the self-important vainglorious self, and become totally transparent to the world.
Monday, March 18, 2013
The Papacy
The excitement and hope surrounding the election of Pope Francis make this an especially good time to renew our understanding of the papacy itself. One resource for doing so is this book, Pope or Church? It addresses many of the errors, which one reads almost everywhere as people speculate about where Pope Francis is going to "take the Church," concerning the Ordinary and Universal Magisterium of the Church. It's good to recall that Magisterium is a neuter noun.
Pope Francis and Slavery
The endless coverage regarding Pope Francis and the meaning of his selection has been interesting and exhilarating to observe. Many here at MOJ and elsewhere have attempted to draw predictions for the future from various events or actions in Pope Francis's history as a priest, bishop, and cardinal. As we all learn about Francis, many find encouragement (and others register concern) based on certain aspects of his previous actions.
I find myself encouraged by looking at Pope Francis's record on one of the most pressing issues of our generation. It is an issue the Church has labeled "a multidimensional problem and one of the most shameful phenomena of our era." This is the issue of human trafficking.
With conservative estimates of over two million people victimized by a $32 billion industry, this issue of modern day slavery can be seen as the moral issue of our time. With so many victims being served by Catholic affiliated organizations (often women religious), the Church has been actively working against human trafficking for decades. In the words of the Holy See, "trafficking in human beings is a dreadful offence against human dignity, which the social doctrine of the Catholic Church regards as the foundation of human rights."
According to the State Department, Argentina is a source, transit and destination country for men, women, and children subjected to both forced labor and sex trafficking. Therefore, I was eager to discover what, if any, attention Pope Francis has paid to the issue. I was encouraged to see it reported that "[o]rganizations working against labor and sexual exploitation in Buenos Aires counted him as an ally. He often visited victims of trafficking, was moved by their testimonies and denounced those responsible for these forms of slavery in his homilies." Even the New York Times reports that Pope Francis began an initiative to assist victims of human trafficking in 2008. This is significant because, at that time, Argentina was on the State Department's watch list of nations in need of improvement in their response to human trafficking.
While no one should be judged on one issue, it is encouraging that as human trafficking continues to grow and threaten human dignity throughout the world, the Holy See could play a strong role in combatting it.
Mercy!
Reflecting on yesterday's Gospel - the woman caught in adultery, - Pope Francis spoke of God's abundant mercy, which seems to be an emerging theme of his pontificate.
...Brothers and sisters, the face of God is that of a merciful father, an ever-patient one. Have you thought of God's patience, the patience that he has for each of us? That's his mercy. He's always patient, patient with us; he understands us, approaches us, he never tires of forgiving us if we know to turn to him with a contrite heart. "Great is the mercy of God," says the Psalmist. ...
the problem is that we get tired, we don't want to, we get tired of asking forgiveness. He never gets tired of forgiving, but we at times, we get tired of asking forgiveness. May we never tire, let us never tire of it! He's the loving Father who always forgives, who has a heart of mercy for all of us. And even we can learn to be merciful with others. Let us ask the intercession of Our Lady, who held in her arms the Mercy of God made man...
PHOTO: L'Osservatore Romano
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