Saturday, June 27, 2020
There is an astonishing amount of bullying going on right now—in academia and elsewhere—and it is imperative that people stand up to those who seek to intimidate them into either silence or, more appallingly still, the affirmation of beliefs they actually do not hold.
At the same time, we need to remember that the spirit of truth-seeking is a self-critical spirit, so we must avoid the temptation to insulate our beliefs from criticism by portraying and dismissing our legitimate critics as “bullies.”
To me, the distinction between a critic and a bully is not hard to draw, and actually I’m not personally familiar with many “gray” or “borderline” cases (though I can manufacture them as thought experiments of the sort I present to my students on exams).
A critic—even a forceful one—does business in the proper currency of intellectual discourse: presenting evidence, providing reasons, making arguments; a bully questions people’s motives and calls them names.
A critic wants to discuss an issue—to try to persuade you to change your mind or see things in a different light; a bully wants to shut down discussion.
A critic appeals to reason—your mind and conscience; a bully tries to induce fear--resorting to threats and shaming to frighten you into submission.
A critic permits you to make your case in the terms you believe appropriate, and doesn't try to win arguments by dictating the language of the discussion in ways that beg the question; a bully does precisely the opposite.
A critic wants to disabuse you of an error; a bully wants to deprive you of your livelihood—both as a punishment for wrongthink and pour encourager les autres.
A critic is willing to be challenged as well as to challenge; a bully regards any questioning of his or her beliefs as a personal assault—for example, a “bigoted” attack on his or her “identity.”
A critic recognizes that you are entitled to your opinion, even if, in his or her judgment, it is erroneous; a bully insists that “error has no rights” and that those in error must be “re-educated” (via such things as ideologically inflected “training” in “cultural competency,” or “diversity,” or “unconscious bias awareness") or cancelled.
A bully believes that dissent from his or her opinions is evidence of either stupidity (perhaps even mental illness) or malice (“bigotry”).
One thing, it seems to me, that cannot be relied on to distinguish bullying from legitimate advocacy (collective or otherwise) is the virtue of the cause. There are certainly good and bad causes. Good causes—even the best of causes—can be, and have been, advanced by people deploying bad means, including bullying.
The fight against communism—including Soviet tyranny and expansionism—was waged in a very good cause, namely, the cause of democracy and liberty. Some, however, sought to advance that cause by bullying. Senator Joseph McCarthy is, of course, the most notorious example, but not the only one. They brought shame upon, and in some circles discredited, a noble cause. Then, as now, the bullies sought to get—and too often succeeded in getting—people (including many academics) dismissed or disciplined for dissenting from beliefs that, in the passions of the moment, many people felt every decent person just had to affirm.
Listen to critics and engage them in civil, genuinely truth-seeking discussion; defy bullies and call them out.
Friday, June 26, 2020
Mark Movsesian’s recent essay in Law & Liberty is quite interesting. Of note, the religious demographics within the legal academy:
Northwestern Law Professor James Lindgren has published a survey revealing that religious commitments are comparatively rare on American law faculties. “Even compared to other professors,” he writes, “law professors are much less religious.” About 40 percent of law professors, according to Lindgren’s survey, are atheists or agnostics. (The percentage of atheists and agnostics may be even higher among elite law professors). Among Americans with graduate or professional degrees, by contrast, the percentage of atheists and agnostics is substantially lower, only 15 percent. Law professors are also “less likely to attend religious services than their non-professorial counterparts,” Lindgren writes.
Lindgren writes that Christians, specifically, are “underrepresented” on law faculties, compared to the general population. About 75 percent of Americans are Christians of some kind; less than 40 percent of law professors are. By contrast, Nones are highly “overrepresented.” About 20% of Americans say they have no religious identity; among law professors, the percentage is almost double that, about 37 percent. Non-Christian religions—Buddhism, Hinduism, Islam, Judaism, etc.—are also “overrepresented” in the legal academy, he says, compared to their numbers in the general population.
Thursday, June 25, 2020
As many readers know, Title VII's provision requiring employers to make "reasonable accommodation" of their employees' religious practices, when they conflict with the employer's workplace rules, suffered a major blow early on from the Supreme Court's 1977 decision in TWA v. Hardison. There the Court indicated that an employer can show "undue hardship," the statutory phrase that allows denial of accommodation, merely by showing that the accommodation would cause it something more than a "de minimis" burden. Although the statement in Hardison was dicta strictly speaking on the statute's interpretation, lower courts have followed it for more than 40 years. As a matter of ordinary language, "anything more than de minimis" is an indefensible reading of the phrase "undue hardship." And Hardison, as so interpreted, has undermined protection for employees' religious practices, at the very least in cases involving conflicts between work rules and Sabbath observance--the precise conflict that prompted enactment of the accommodation language in 1972. Attempts to correct Hardison by new legislation have failed.
Recently, however, several justices have shown interest in revisiting Hardison. Earlier this year, when the Court denied certiorari in Patterson v. Walgreen Co., Justice Alito, joined by Thomas and Gorsuch, wrote in support of reconsidering the "de minimis" rule in a case cleanly presenting the issue. The Solicitor General had also supported reconsidering the de minimis rule in Patterson itself. Finally, the simple textualist point against Hardison--that "undue hardship" is quite different in meaning from "anything more than de minimis"--has taken on new force because the Court resolved the Title VII issues in the LGBT-rights cases, Bostock etc., on simple textualist grounds.
So the issue is teed up for two new petitions filed in recent days, which present solely the "de minimis" rule uncomplicated by any other interpretive matters. Small v. Memphis Light, Gas & Water involves a Jehovah's Witness elder whose employer's rigid mandatory-overtime rule prevented him from attending both Sunday services and Wednesday meetings. Dalberiste v. GLE Associates involves a Seventh-Day Adventist employee whose offer of employment was rescinded when the company found he could not work throughout the weekends; the petition recounts that the employer gave no consideration to any of several alternatives for staffing.
Among their arguments, both petitions emphasize how minority religious faiths raise accommodation claims far out of the proportion to their share of the population and thus suffer the most from an anemic standard. Both petitions cite a statistical analysis that my St. Thomas Religious Liberty Clinic students and I presented in our amicus brief in Patterson (filed for the Christian Legal Society and other Christian and Muslim groups). From that brief (pp. 23-25):
These disproportionate effects appear, for example, in the cases listed in the appendix to the petition: reported religious accommodation cases decided on summary judgment motions concerning “undue hardship” from 2000 to the present....
Muslims, a classic religious minority, constitute 18.6 percent of this large set of accommodation decisions (19 of 102), even though, according to a comprehensive 2014 study, they constitute only 0.9 percent of the population. [Citing Pew Research Center, America’s Changing Religious Landscape (2015).] Overall, claims by members of non-Christian faiths (Muslims, idiosyncratic faiths, Jews, Hebrew Israelites, Rastafarians, Sikhs, and African religions) make up 34.3 percent of the accommodation cases (35 of 102), even though non-Christian faiths made up only 5.9 percent of the population in 2014 (and significantly less than that in earlier years). The percentage of cases in the appendix involving religious minorities climbs to 62 percent when one combines the various non-Christians (34.3 percent of the cases) with sects that follow the minority practice of Saturday Sabbath observance: Seventh-day Adventists (22 of 102, or 21.6 percent of 25 the cases) and other small Saturday-observing sects (6 of 102, or 5.9 percent of the cases).
Steffen Johnson and Michael McConnell at Wilson Sonsini and Jim Sonne at the Stanford Religious Liberty Clinic represent Mr. Small; Gene Schaerr and Schaerr Jaffe, Mark Rienzi and the Becket Fund, and Todd McFarland of the Seventh-Day Adventists represent Mr. Dalberiste.
Wednesday, June 24, 2020
For any interested MOJ readers, my Note entitled “A Different Kind of Prisoner’s Dilemma: The Right to the Free Exercise of Religion for Incarcerated Persons” was recently published in the Notre Dame Law Review and can be found here. An abbreviated abstract is pasted below.
How should one understand the right to the free exercise of religion for incarcerated persons? Scholars typically analyze the right to freedom of religion in two distinct ways—either as a constitutional right or as a fundamental human right. And yet, the former should be understood as a positivized protection of the latter. This Note analyzes a prisoner’s right to the free exercise of religion in the context of a prisoner’s right to a preacher and a place to worship. In doing so, it separately analyzes the constitutionally protected right in the United States and the internationally protected human right in the context of the European Court of Human Rights. However, in concluding, it demonstrates that the constitutional right and the international human right are fundamentally one and the same. And, of even greater importance, it shows that the underlying protections owed to incarcerated persons are the same, regardless of the analytical framework.
In sum, this Note argues that international courts, U.S. courts, and well-positioned political and legislative bodies should continue to advance the proper understanding of the right to the free exercise of religion and faithfully apply it to one of the world’s most vulnerable populations—prisoners.
Monday, June 22, 2020
For those still following the story at Saint Anselm College, there are some recent developments noted in the New Hampshire Union Leader:
A weakened board of trustees will be squaring of with Saint Anselm College monks starting in the fall, after a judge ruled this week that veteran trustees -- including all four board officers -- will have to depart the board when their terms expire in October.
The ruling comes in the high profile case brought by the Benedictine monks of Saint Anselm College, who last year sued trustees over control of the 2,000-student Catholic liberal arts college in Goffstown.
In a 10-page ruling issued Monday, Hillsborough County Superior Court Judge William Delker blocked a bid by trustees to extend the terms of nine trustees. They faced removal in October because they had served the maximum of three 3-year terms.
Monks, who relinquished most of the day-to-day operation of the 131-year-old college in 2009, have said they need control of the bylaws to ensure the college adheres to its Catholic and Benedictine roots.
Friday, June 19, 2020
Angela Carmella (Seton Hall Law School), known to many here at MOJ, has posted the above-titled article on SSRN (forthcoming in the Kansas Law Review). Angela is always thoughtful, and I appreciate her subject matter here for its challenge to the assumption that religious-exemption claims are a thing for conservatives to assert and progressives to oppose. Part of the abstract:
This article highlights the fact that there is an increasing visibility of progressive religious causes. On political issues with profound moral dimensions, such as immigration and refugees, poverty and homelessness, and care for the environment, many religious liberals have long been, and continue to be, involved in grass roots organizing, education, service, and — with greater frequency — litigation to seek religious exemptions. The visible participation of religious progressives challenges the dueling and entrenched narratives of conservatives and liberals and will likely contribute to an ever-evolving political and juridical compromise among multiple religious freedom narratives.
The article categorizes claims into predominantly conservative refusal claims and predominantly liberal “affirmative” claims. Affirmative claimants seek to exercise religion without legal restraint. Affirmative acts are broader and more indeterminate than the acts involved in refusal claims, since refusal claims are generated by what the law requires while affirmative claims are guided by what a religion teaches. Cognizant of these differences, the article uncovers possible doctrinal obstacles and inequities in the way courts might address affirmative claims, particularly in connection with meeting the “substantial burden” requirement under statutes like the federal Religious Freedom Restoration Act and similar laws.
Catholic bishops in Costa Rica, with the backing of the Evangelical Alliance, are against a proposed reform of the constitution removing Catholicism as the official state religion.
Christian leaders in the Central American country argue that the move is fueled by anti-Catholic bias and would actually erode the religious freedom currently enjoyed nationwide.
According to the latest census, over 70 percent of the population of five million describe themselves as Christian, with Catholics representing just over 50 percent of the country’s total population.
Full article at Crux.
Wednesday, June 17, 2020
Religious liberty is the first freedom articulated in the U.S. Bill of Rights, and Pope Francis has said it “remains one of America’s most precious possessions,” adding that “all are called to be vigilant … to preserve and defend that freedom from everything that would threaten or compromise it.”
With the receipt of a transformational gift from Matt and Lindsay Moroun and family, Notre Dame Law School will put its rich tradition of religious liberty scholarship into practice by creating the Notre Dame Religious Liberty Clinic.
The Law School also has appointed Stephanie Barclay as an associate professor to teach and generate scholarship related to the initiative as well as help launch the groundbreaking clinic that will train future Notre Dame lawyers to defend religious freedom by pursuing claims in trial courts as well as appeals up to and including the U.S. Supreme Court.
Training Notre Dame lawyers how to protect religious liberty is central to the missions of both the law school and broader University.
“The freedom of people of faith and religious institutions from government intervention is one of the founding pillars of our nation, and that freedom has helped create a more compassionate society and a vibrant democracy,” said Rev. John I. Jenkins, C.S.C., Notre Dame’s president. “Notre Dame, a leading university that proudly maintains its founding mission as a Catholic university, must be the leader in the national dialogue to reaffirm our country’s historic respect for and commitment to freedom of conscience and the defense of religious liberty.”
The clinic will be the cornerstone of the broader Religious Liberty Initiative advanced by G. Marcus Cole, the Joseph A. Matson Dean of the Law School.
“Without freedom of conscience — to believe, and then to live our lives as our beliefs require us — nothing else matters,” Cole said. “This is why the Religious Liberty Clinic is so vital to me. I am deeply grateful to the incredibly generous donors who have enabled Notre Dame Law School to be — as it should be — at the forefront of defending religious freedom for all.”
Barclay joins the law school from the faculty of Brigham Young University’s J. Reuben Clark Law School. She is also of counsel for the Becket Fund for Religious Liberty. A First Amendment scholar, she researches and writes about the role different democratic institutions play in protecting minority rights, particularly at the intersection of free speech and religious exercise.
“I am absolutely thrilled for Stephanie Barclay to join our faculty and launch our Religious Liberty Initiative,” Cole said. “She is an exceptional scholar and teacher, and one of the nation’s leading advocates for religious freedom, and as such, ideal to lead this effort.”
Prior to joining BYU’s law faculty, Barclay clerked for Judge N. Randy Smith on the U.S. Court of Appeals for the 9th Circuit, was an associate in the Washington, D.C., firm Covington & Burling and was legal counsel for Becket. She twice has been named a Rising Star by the Super Lawyers ratings service.
“Joining Notre Dame Law School’s remarkable community of scholars is a tremendous honor,” Barclay said. “I am also profoundly grateful for the opportunity to participate in an initiative focused on equipping the next generation of lawyers to defend the vital right that is religious liberty.”
Following the 2020-21 academic year, Barclay will take a one-year leave to clerk for U.S. Supreme Court Justice Neil Gorsuch.
Story by Dennis Brown at Notre Dame News.
