Posted on by Mark Movsesian

Tradition and Strict Scrutiny

Over at the Volokh site, I have a post on last week’s decision in Ramirez v. Collier, in which the Supreme Court ruled in favor of a death-row inmate who argued that prison officials violated RLUIPA by refusing to allow him to have a clergy present at his execution. RLUIPA requires prison restrictions to meet strict scrutiny: the state must justify restrictions on religion by showing that it has chosen the least restrictive means of satisfying a compelling interest.

Strict scrutiny, which applies in many areas of constitutional law, in practice operates as a balancing test. Critics (including me) have pointed out that the test is inherently indeterminate, depending largely on the intuitions of the particular judges hearing a case. In a separate concurrence in Ramirez, Justice Kavanaugh argues that tradition can help make the test less subjective:

In Ramirez, for example, prison officials had concluded that the marginal benefit of excluding pastors from the execution chamber outweighed the burden on inmates’ RLUIPA rights. Chief Justice Roberts and the majority evidently disagreed. But how were they to know? “It is difficult for a court applying” strict scrutiny, Kavanaugh wrote, “to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear.” If the justices’ intuitive judgments are all that make the difference, that hardly seems legitimate.

Here, according to Kavanaugh, is where tradition can help. For centuries in American practice, clergy have been present at executions. And that practice continues today. The presence of clergy, in other words, is a living tradition. “Although the compelling interest and least restrictive means standards are necessarily imprecise,” Kavanaugh wrote, “history and state practice can at least help structure the inquiry and focus the Court’s assessment of the State’s arguments.” Kavanaugh wrote separately to emphasize this aspect of the Court’s reasoning.

Here’s a link to my post.

Posted on by Marc O. DeGirolami

The Australia School and Politico-Theological Inquiry: Joel Harrison Responds

[In response to some thoughts I had posted about interesting developments in law and religion in Australia, Professor Joel Harrison had these illuminating observations, which he has given me permission to post. MOD]

In his blog post, Professor DeGirolami raises a possible emerging ‘Australian School’ – Australian-based scholars who are interested in Christian theological concerns and justifying religious freedom in light of this. Professor DeGirolami’s post spurred a few initial thoughts in response; I’m grateful he invited me to share them here.

First, although developing a theological jurisprudence is certainly not something unique to scholars in one place, is there something about Australia that may allow this to grow? One possible angle for reflection is on a ‘trans-Atlantic’ difference, and its continuing relevance to Australia. 

The trans-Atlantic difference puts me in mind of the theologians Stanley Hauerwas and John Milbank. Hauerwas the American is anti-Constantinian and sees the violence of the State as the primary thing to resist. Separation is necessary to maintain a prophetic difference – or even just survival of the Church as the Church. Although much indebted to Hauerwas, Milbank the Brit understands Christendom and Christianity as coterminous – Christianity means (complexly) instantiating a political-spiritual project. More broadly, and as generalisation, the boundaries of church and State discourse or what is a matter for theology and what is a matter for law are more blurred on one side of the Atlantic.       

Of course, Australia is not either country. It is a former colony and still part of the Commonwealth, but it also has a strong United States-flavour. Constitutionally it is sometimes described as having a ‘Washminster’ system, with its blending of federalism and responsible government. Culturally and politically, it can swing between looking to one country or the other.  

That said, I wonder whether it is still possible to have more of a ‘British’ sensibility in Australia and talk about cooperative arrangements between church and State, or even develop public debate in theological terms. We can add to this an ongoing relationship to First Peoples, who are partly recognised at State and federal level as maintaining a spiritual or metaphysical connection with the land, as judges of the High Court of Australia recently stated. Although Australia was not permitted to have an established church, this requirement was not opposed to a religiously infused culture and politics. That is not entirely dissimilar from the United States, but Australia perhaps historically went further – maintaining something of that British inheritance in a colonial context. To this day, for example, despite some voices in Australia saying otherwise, it is very difficult to claim a ‘Rawlsian consensus’ of public reason or even that this is something of significant debate.  

Second, this growth in theological concern takes place against an emerging culture war dynamic. Recent years in Australia have seen a remarkable shift. Matters that were previously uncontroversial – like a Catholic, Jewish, or Muslim school’s liberty to hire only members of the religious tradition – are now challenged. It is not difficult to find outright hostility to religious groups or at least non-comprehension. (In one example, an Australian rights group argued the State needed to protect nuns from the Catholic Church, which was infringing their right to private and family life.) This takes place against the backdrop of numerous parliamentary inquiries into religious liberty. Different lobby groups on both sides have sprung-up. With each new inquiry they have escalated their rhetoric, stating the opposing side poses an existential threat that demands immediate action (and presumably more funding and support). In this context, the turn to theological frames (often a version of postliberalism) can reflect an interest in finding resources beyond the culture war. 

It serves a critical function and a productive function. 

Critically, the turn to theology helps to unmask any continuing claims to neutrality. Most notably in the context of religious liberty debates, it helps us to understand how the appeal to autonomy as promoted within liberal frames is not divorced from a theological view – what it means to be free and how this understanding came to be, what the role of civil authority is in relation to this. A theological turn offers insight into our current context: different groups engaging in an agonistic discourse of incommensurable claims to liberty. 

Productively then, the turn to theology looks for an alternative. Thus, we see language of the common good, duty, virtue, solidarity, peace, and charity developed in aid of asking what the shape of a complex, good society should be. 

This raises a final important point that I think should shape any apparent ‘school’ interested in theological jurisprudence. Often religious liberty claims are framed as simply protecting a particular community’s own backyard: my liberty, my autonomy, my freedom from x. However, this turn to theology aims at something more – contemplating the future of our shared life. This is not a question simply for Australian-based scholars, of course.  But I’m certainly glad we splendidly named ‘young upstarts’ can make a contribution (and await criticism).

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • The U.S. Supreme Court denied review in Seattle’s Union Gospel Mission v. Woods, a case involving whether religious groups are exempt from state non-discrimination employment laws.
  • In Ramirez v. Collier, the U.S. Supreme Court held that a death row prisoner was likely to succeed on his Religious Land Use and Institutionalized Persons Act (“RLUIPA”) lawsuit challenging limits on his pastor’s activities in the execution chamber. The Court held that petitioner is entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the prisoner and audibly pray with him.
  • In Canaan Christian Church v. Montgomery County Maryland, the Fourth Circuit Court of Appeals held that Montgomery County did not violate a church’s rights under RLUIPA or the First Amendment when it refused to extend public sewer lines to properties on which the church proposed to construct new buildings.
  • In Catholic Charities West Michigan v. Michigan Department of Health and Human Services, a Michigan federal district court approved a settlement agreement after the Michigan Department of Health and Human Services conceded it would violate the First Amendment to take any adverse action against Catholic Charities because the ministry prioritizes placing foster and adoptive children in homes with a married mother and father.
  • In United States v. City of Troy, a Michigan federal district court held the city of Troy, Michigan had violated the “equal terms” provisions of RLUIPA and enjoined the city from enforcing its zoning ordinance that imposes stricter standards on places of worship than it does on non-religious uses in the same zoning district.
  • In Kariye v. Mayorkas, suit was filed by three Muslim Americans who claim U.S. Customs and Border Protection agents asked them religiously intrusive questions upon their return from international travel.
Posted on by Marc O. DeGirolami

The Australia School

I’m back from a superb conference orchestrated by Professor Helen Alvaré at the Liberty & Law Center at George Mason Law School on some of the current and future challenges and prospects in law and religion. I’ll have more to say about my paper, “The New Disestablishments,” by and by, but for the present I will note that I was grateful for improving and insightful criticisms from the group, including those of Professor Fred Gedicks, who was my commenter.

One of the things that occurred to me at the conference was that it seems a new school of thought about religious liberty is emerging in some young upstart scholars, in Australia. I’m only just coming to learn of The Australia School, and so I am going to miss what are new and interesting scholars in it. Indeed, calling it The Australia School assumes some kind of unity of thought, and I am certainly not suggesting there is such unity. But at the very least, The Australia School will include scholars like Professor Joel Harrison and his Post-Liberal Religious Liberty: Forming Communities of Charity; Professor Alex Deagon (who presented at the conference) and his From Violence to Peace: Theology, Law and Community; and Professor Neil Foster, who has written about when it is and is not appropriate for courts to decide matters that impinge on religious doctrine. I am missing many, I’m sure (and apologize preemptively to those I have not discussed). I don’t want to overgeneralize, but this is a blog post, and it would be boring not to offer at least some thematic observations about The Australia School. So are there any discernible themes? 

Both Harrison and Deagon are deeply interested in Christian theological concerns, and both offer justifications for religious freedom rooted in theological considerations. Both rely on the work of John Milbank–not identically, but substantially. Indeed, I have a review over here of Harrison’s book, trying in summary form to describe the way Harrison reimagines religious freedom and devises justifications for it that are new and represent a different direction (with words of praise, though there was a criticism or two also!). Foster also is interested in the issue of the relationship of religious doctrine to civil power. And Deagon emphasizes issues of the unity of peaceful co-existence, also through a theological lens. Both the influence of Milbank on these scholars and their theological orientation are notable; I can discern only very few similarly oriented projects over in our corner of the world. One question I’ve been thinking about is just why. 

As I say, I’m just learning about The Australia School and there are likely many differences and disagreements already emerging within it. But it’s a fresh and interesting development in the law and religion world.

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • The Supreme Court has relisted two cases involving religious exercise claims, Seattle’s Union Gospel Mission v. Woods and Hedican v. Walmart Stores East, L.P., for its upcoming conference.
  • A Kansas teacher filed suit against her school district superintendent, board members, and principal after being suspended for refusing to use a student’s preferred name due to her religious beliefs.
  • In Heras v. Diocese of Corpus Christie, a Texas appellate court affirmed the dismissal of two priests’ defamation suits on ecclesiastical abstention grounds.
  • Ohio Governor signed into law Senate Bill 181, which allows students to wear religious apparel while competing in athletic competitions or extracurricular activities.
  • In Resham v. State of Karnataka, a 3-judge panel of the High Court of the Indian state of Karnataka upheld a ban on hijabs in schools and colleges. The Court stated that the “wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.”
  • Quebec’s new Bill 21 bans Canadians working as teachers, lawyers, police officers, and more from wearing religious symbols such as crosses, hijabs, turbans and yarmulkes.
  • Israel’s Chief Ashkenazi Rabbi David Lau, in a letter to Israel’s attorney general, has proposed setting up a special religious court to assist the expected 30,000 plus Ukrainian refugees.
Posted on by Mark Movsesian

Tosato on Biblical Interpretation

Here is an interesting new book from the Pontifical Gregorian University’s press, The Catholic Statute of Biblical Interpretation by Fr. Angelo Tosato, newly translated into English by our friend and frequent academic collaborator, Prof. Monica Lugato of LUMSA. Fr. Tosato, who died in 1999, was a professor at the Lateran and the Gregorian Universities, specializing in Biblical interpretation. But the book is accessible to non-experts as well. Among the topics it covers are the concept of the Bible as a set of divinely inspired texts mediated through human authorship, and the distinction between what Tosato calls “the bishops’ judicial interpretation” of the Bible, which may be authoritative for Catholics at any given time, and the “authentic” interpretation, which is known fully only to God. Because a space inevitably exists between the judicial and authentic interpretation, Tosato argues, the former is always subject to rethinking–guided, of course, by Holy Tradition.

Here is the description of the book from the publisher:

A «rigorous and exhaustive study on the official Catholic doctrine in the realm of Biblical interpretation», this work is «defended by heavily equipped garrisons of quotations in Latin, Greek, and Hebrew, and fortified by walls of Church documents» and based upon a «a profound knowledge of juridical questions and problems». The Author begins by clarifying the definition of the Bible for the Catholic faith, then explores its nature, origin, purpose and functions in relation to its different addressees, finally analysing the prerequisites, criteria, and forms of accurate biblical interpretation. «One detail may draw the reader’s attention. Angelo Tosato asserts, with solid reasons, that the juridical authority of the Magisterium is limited to the actualised interpretation of biblical texts for our world, and has not to deal with the proper exegetical and scientific task of recovering the original meaning of these texts. The Magisterium’s decisions, moreover, can be modified, corrected, and rectified, as every human decision». But this is just one of the many components of the Catholic Statute of biblical interpretation, a Statute that seeks to reveal «the vast and gorgeous panoramas of a truthful interpretation of our Scriptures».

Posted on by Marc O. DeGirolami

Announcing the Sixth Biennial Colloquium in Law & Religion (Fall 2022)

The Center for Law and Religion is delighted to announce the lineup for the sixth biennial Colloquium in Law and Religion, scheduled for Fall 2022. The Colloquium brings outside scholars and jurists to St. John’s to teach a seminar for selected students. Speakers present drafts on law and religion; students are graded on the basis of response papers and class participation.

This year’s Colloquium speakers are Judge Richard J. Sullivan of the U.S. Court of Appeals for the Second Circuit and Professors J. Joel Alicea (Catholic University School of Law), Nathan Chapman (University of Georgia School of Law), Nicole Stelle Garnett & Fr. Pat Reidy (Notre Dame Law School and Yale Law School student), Anna Su (University of Toronto Faculty of Law), and Nelson Tebbe (Cornell Law School).

For more information about the Colloquium, please contact Center Co-Directors Mark Movsesian and Marc DeGirolami.

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • On Monday, the Biden Administration filed an emergency application with Justice Alito after the 5th Circuit upheld a preliminary injunction which protects Navy service members from facing consequences for their faith-based opposition to COVID-19 vaccines.
  • In Byrne v. Bowser, suit was filed in the D.C. federal district court by a nun who is a surgeon and family physician after she was denied a religious exemption from the District’s vaccine requirement for health care professionals.
  • In Dugan v. Bowser, suit was filed in the D.C. federal district court by parents of Catholic school students alleging that imposing the mask mandate on Catholic schools violates the Religious Freedom Restoration Act and the First Amendment.
  • In Temple of 1001 Buddhas v. City of Fremont, a California federal district court dismissed a suit by a religious adherent who lives on property owned by the Temple of 1001 Buddhas. The claimant challenged the city’s enforcement of the state’s building, electrical, and plumbing codes as a violation of RLUIPA.
  • In Ferrelli v. State of New York Unified Court System, a New York federal district court upheld the system for determining whether employees are entitled to religious exemptions from the COVID vaccine mandate imposed on all judges and employees of the New York State court system. The court concluded that the exemption process was neutral and generally applicable.
  • Virginia senators block a bill that would have prevented the governor from using an executive order to impose restrictions on the exercise of religion and would have prevented any such rule, regulation, or order from any governmental entity.
  • The EEOC has provided employers with updated guidance regarding religious objections to COVID-19 vaccinations.
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • The U.S. Supreme Court denied review in Gordon College v. DeWeese-Boyd, in which the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by a professor at a private Christian college who alleges her promotion was denied because of her public criticism of the school’s policies on LGBTQ students.
  • In U.S. Navy Seals 1-26 v. Biden, the Fifth Circuit refused to grant the Navy a partial stay of an injunction protecting a group of personnel who refuse to comply with the military’s COVID-19 vaccine mandate for religious reasons.
  • In Miller v. Acosta, the Ninth Circuit held that the district court properly found that the defendant was entitled to qualified immunity on an inmate’s free exercise claim.
  • In Poffenbarger v. Kendall, an Ohio federal district court issued a preliminary injunction barring the Air Force from penalizing an Air Force reservist who refuses to comply with COVID-19 vaccine mandates due to religious objections.
  • In Sandoval v. Madison Equal Opportunities Commission, a Wisconsin state appellate court upheld the finding that Capitoland Christian Center Church did not engage in employment discrimination after an employee left her job over a policy barring unmarried employees from cohabitating.
  • Assemblywoman Buffy Wicks, a Democrat in Oakland, introduced a piece of legislation that would reduce residential parking requirements for newly built religious institutions to allow for the construction of housing.
Posted on by Marc O. DeGirolami

Conference: “Beyond ‘Defensive Crouch’ Religious Freedom”

I’m happy to be participating in this conference hosted by the Liberty & Law Center at George Mason Law School. I’ll present a paper called “Traditionalist Disestablishments,” a first step in combining my research interests in traditionalist constitutional interpretation with some of the developments occurring in law and religion at the moment. More soon on that. Here is the conference description:

In the United States today, religious individuals and institutions increasingly find themselves seeking exemptions from a wide array of laws and regulations burdening their free exercise. In this environment, it is important to ask about religion’s positive contributions to individuals and to society.  The Liberty & Law Center is therefore hosting a two-day conference on March 24 & 25, 2022 at the Antonin Scalia Law School in order to explore several urgent questions: what goods and values does religious exercise further, including institutional exercise; how religious exercise can not only serve but sometimes better promote the values of equality, dignity, and freedom valorized by the state; and how religious institutions might better understand and communicate the social worth of religion and religious freedom.

Findings will be presented in four panels over the course of two days. To view the agenda and detailed list of speakers, click here. For questions about the event, please email liberty@gmu.edu. We hope you’ll join us!