Legal Spirits Episode 015: SCOTUS Grants Cert in the Louisiana Abortion Case

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In this podcast, we discuss the Supreme Court’s decision to grant cert in June Medical Services v. Gee, a constitutional challenge to a Louisiana law regulating abortion. We explore what the decision to hear the case suggests about the Court’s changing dynamics and ask whether the standing issue the case presents offers the Court’s conservatives, especially Chief Justice Roberts, a way to cut back on the right to abortion without actually overruling Roe and Casey. Listen in!

Laicite in Quebec

Je Me Souviens?

When profoundly Catholic societies go off religion, they really go off religion. Religion doesn’t become simply a matter of indifference; people seem to feel they must uproot religion entirely from public life, in order to compensate for and distance themselves from the benighted ways of the past.

Societies need some common identity to bind them, though, and when shared religion is no longer an option, they substitute other things. In a First Things essay this week (“Canada Divided Against Itself”), David Koyzis observes this dynamic at work in Quebec. Once a famously Catholic place, he says, since the Quiet Revolution of the 1960s, Quebec has become an overwhelmingly secular society. (Strangely, they have kept a very Catholic-looking flag (above)). The province’s motto may be “Je me souviens,” but the Quebecois are trying to forget all about their religious tradition. What unites the province today, he says, is not Catholicism, but Quebecois national identity:

Ironically, despite the secularizing impact of the Quiet Revolution, Québec has not abandoned religious faith; it has simply redirected that faith toward a state-centered nationalism, around which the province’s main parties are largely united. What was once a French Canadian nationalism bent on defending a Catholic society whose traditions harked back to pre-revolutionary France has become Québec nationalism, which looks to the state to protect the province’s linguistic majority in a sea of English-speaking jurisdictions. If protecting this majority comes at the expense of minority interests within the province, then so be it.

As evidence, Koyzis adduces a new law that prohibits public employees from wearing religious symbols–crucifixes, kippas, hijabs–while on the job. The idea, he says, is to encourage the Quebecois to think of themselves, not as members of distinct religious communities, but simply as Quebecois. This is the same reasoning behind the ban on burkas in public places, and the ban on “conspicuous” religious symbols in public schools, in France.

Koyzis says that the forceful laicite of Quebec is in tension with the multiculturalism that animates Canadian public life outside the province. I don’t know enough about Canada to evaluate that argument. But his point about nationalism as a substitute for religion seems sound. You can read the whole piece here.

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

Is American Christianity in Decline?

In his column in last week’s Times, the always interesting Ross Douthat sifts through recent data on the decline of Christianity in the United States. It’s true, he writes, that the percentage of people declaring themselves Christian is declining, and that the percentage of Americans who tell pollsters they have “no religion” is increasing. But that doesn’t indicate an across-the board decline in Christian belief and practice. Seriously committed Christians remain so. It’s the nominal, weakly committed Christians who are leaving the churches:

The relative stability of the Gallup data fits with analysis offered by the sociologists Landon Schnabel and Sean Bock in a 2017 paper, “The Persistent and Exceptional Intensity of American Religion.” Drawing on the General Social Survey, they argued that the recent decline of institutional religion is entirely a function of the formerly weakly affiliated ceasing to identify with religious bodies entirely; for the strongly affiliated (just over a third of the American population), the trend between 1990 and the present is a flat line, their numbers neither growing nor collapsing but holding steady across an era of supposedly dramatic religious change.

That resilience should not be entirely comforting for Christian churches, since both their everyday work and their cultural influence depends on reaching beyond their core adherents, and inspiring a mix of sympathy and interest among people who aren’t at worship every week. Indeed, combining an enduring core of belief with a general falling-away could make the Christian position permanently embattled, tempting the pious to paranoia and misguided alliances while the wider culture becomes more anticlerical, more like 19th-century secular liberalism in its desire to batter down the redoubts of traditional belief.

But for now that resilience also puts some limits on how successfully anti-Christian policies can be pursued, how easily religious conservatism can be marginalized within the conservative coalition (not easily) and how completely the liberal coalition can be secularized — not completely at all, so long as its base remains heavily African-American and Hispanic. (The tragic racial polarization of American Christianity, in this sense, may have one positive effect: preventing a complete polarization of our politics between Christian and post-Christian coalitions.)

Douthat is right about this. As I’ve written elsewhere, the real story in American religion is its increasing polarization. The middle is dropping out in favor of extremes on either end: the Nones and the Traditionally Religious. Whether the departure of the Laodecians from America’s churches will be on the whole a good thing, for the churches and the society at large, remains to be seen.

The Standing Argument in the New Abortion Case

In our latest Legal Spirits podcast, Mark and I discuss June Medical Services v. Gee, the latest case about abortion picked up by the Supreme Court. This is a 5th Circuit case reviewing a Louisiana law requiring doctors to obtain admitting privileges at area hospitals in order to continue performing abortions at clinics. The 5th Circuit upheld the law, distinguishing a facially similar law in Texas that the Supreme Court struck down three years ago by a vote of 5-3 in Whole Woman’s Health v. Hellerstedt. In the podcast, Mark and chat about the lower court opinion, the petition, and the cross-petition.

I want to say just a little more in this post about the cross-petition, which advances an argument about standing–the constitutional requirement that a claimant allege a concrete and particularized injury that was caused by the defendant and can be redressed by the Court. One widely recognized rule of standing–a “prudential” rule rather than a constitutionally compelled rule (meaning that Congress could, if it wished, legislate around the prudential doctrine)–is that one cannot assert claims on behalf of other parties; that is, so-called “third party standing” or jus tertii is generally impermissible. There are exceptions to the rule. For example, a parent may assert a claim on behalf of a child. But in the main, third party standing has been rejected by the Court as adequate.

One of the exceptions to the third party standing prohibition was carved out by the Court in 1976, after Roe v. Wade, in a case called Singleton v. Wulff. In Wulff, the Court held that two Missouri physicians had standing to challenge a law excluding abortions that were not “medically indicated” for purposes of Medicaid coverage. A majority of the Court found adequate standing for the doctors themselves because of the financial consequences they might face in the absence of Medicaid coverage. But a plurality of the Court went further: in an opinion by Justice Blackmun, it held that physicians have the right to assert third party standing on behalf of women whose rights may be affected by a particular law because it thought that the interests of physicians and their patients in the abortion context are “inextricably bound up” and thus there exists a “close relationship” between them, that doctors are “effective advocates” for their patients, and that women may not be effective advocates of their own rights in this area.

The Gee cross-petition takes aim at this plurality holding in Wulff. Citing Justice Thomas’s dissenting opinion in Whole Woman’s Health (which only he signed), it argues that the Court should revisit the third party standing rule of Wulff and that the interests of women and physicians are actually adverse in this case (it claims that many of the doctors simply do not want to obtain admitting privileges, which would enhance patient safety). It also argues that because the issue of prudential third party standing was not explicitly raised below, the physicians have waived that standing, while the physicians say that it is the state that has waived its right to object to third party standing.

As we discuss in the podcast, there is also an amicus brief in the case submitted by Senator Josh Hawley of Missouri, a former clerk of Chief Justice John Roberts. It argues that the effect of this third party standing rule is to give physicians a heightened standard of review that they would not ordinarily get if they were asserting their own injuries. On their own, the law would be reviewed for a rational basis, but through third party standing, it is now reviewed under the higher undue burden standard of Planned Parenthood v. Casey. And it also argues that even if the physicians are granted third party standing, they cannot satisfy the undue burden standard as fleshed out by Casey and WWH because they cannot show that the statute affects a “large fraction of women,” which is the language used in the cases.

The Court could certainly use this case as a chance either to rethink or to rein in the Wulff rule. Option A: it could revisit the rule altogether and reject the plurality portion of the Wulff rule. Option B: it could narrow the Wulff rule to situations in which there is evidence that a “large fraction of women” might be affected by the legislation in question, and that there is insufficient evidence in Gee. Note that rejecting the third party standing rule altogether would abrogate that part of Whole Woman’s Health concerning standing (doctors brought the challenge there too), while the remainder of the “law” of WWH would remain in effect. Probably there are other possibilities. But resolving the case on the basis of third party standing doctrine might give the Court a way to chip away at existing abortion law without going directly after the likes of Casey. “They’ve narrowed Singleton v. Wulff!!” just doesn’t have the same sky-is-falling quality for abortion rights supporters that a more direct attack might. Going in this direction would also track some of the skepticism with which some members of the Court view its broader standing doctrines (see, for example, Justice Gorsuch’s views on standing in the Bladensburg Cross opinion).

It will be interesting to see just what the Court does with the standing claim. Stay tuned. And for more on the case generally (including some speculation about the standing claim), have a listen to our podcast!

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The Religion of Prison Abolition

A stirp of liberation theology, as it were. A new book discussing religious features or religious phenomena attending the movement from the far left to abolish all prisons. The book is Break Every Yoke: Religion, Justice, and the Abolition of Prisons (Oxford), by “activist-scholars” Joshua Dubler and Vincent Lloyd.

“Changes in the American religious landscape enabled the rise of mass incarceration. Religious ideas and practices also offer a key for ending mass incarceration. These are the bold claims advanced by Break Every Yoke, the joint work of two activist-scholars of American religion. Once, in an era not too long past, Americans, both incarcerated and free, spoke a language of social liberation animated by religion. In the era of mass incarceration, we have largely forgotten how to dream-and organize-this way. To end mass incarceration we must reclaim this lost tradition. Properly conceived, the movement we need must demand not prison reform but prison abolition.

Break Every Yoke weaves religion into the stories about race, politics, and economics that conventionally account for America’s grotesque prison expansion of the last half century, and in so doing it sheds new light on one of our era’s biggest human catastrophes. By foregrounding the role of religion in the way political elites, religious institutions, and incarcerated activists talk about incarceration, Break Every Yoke is an effort to stretch the American moral imagination and contribute resources toward envisioning alternative ways of doing justice. By looking back to nineteenth century abolitionism, and by turning to today’s grassroots activists, it argues for reclaiming the abolition “spirit.””

International Moot Court Competition in Law & Religion: Rome, March 2020

International Moot Court Competition in Law & Religion: Rome, March 2020

Law students: mark your calendars this spring for a remarkable opportunity in the Eternal City.

The European Academy of Religion is hosting the third International Moot Court Competition in Law and Religion. The competition will take place in Rome from March 5th to March 7th, 2020 and is open to law students in both American and European schools.

Student teams will argue a hypothetical case before two courts, the European Court of Human Rights and the U.S. Supreme Court. Scholars and actual judges from both jurisdictions will serve as judges. After a verdict, a roundtable discussion will debate the varying argumentative skills used and highlight the different cultural points of view of the two Courts.

The program is a wonderful chance for students to build advocacy skills, learn about international legal systems, and engage in legal analysis at the intersection of law and religion. The competition case this year involves a state hospital policy prohibiting employees from wearing visible religious signs in public, and the question of what appropriate accommodations are required by statute.

For more details, as well as entry information, please click here.

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A Defense of Religious Freedom from the Human Rights Perspective

At our 2014 conference in Rome with LUMSA on international religious freedom and the global clash of values, we were delighted to meet Professor Heiner Bielefeldt, then the United Nation’s Special Rapporteur on Freedom of Religion or Belief. He gave an impassioned talk at the conference.

Professor Bielefeldt, who teaches at the University of Erlangen-Nuremberg, has a new co-authored book: Religious Freedom Under Scrutiny (University of Pennsylvania Press), together with Michael Wiener.

“Freedom of religion or belief is deeply entrenched in international human rights conventions and constitutional traditions around the world. Article 18 of the Universal Declaration of Human Rights enshrines the right to freedom of thought, conscience, and religion as does the International Covenant on Civil and Political Rights, which the United Nations General Assembly adopted in 1966. A rich jurisprudence on freedom of religion or belief is based on the European Convention on Human Rights, drafted in 1950 by the Council of Europe. Similar regional guarantees exist in the framework of the Organization of American States as well as within the African Union. Freedom of religion or belief has found recognition in numerous national constitutions, and some governments have shown a particularly strong commitment to the international promotion of this right.

As Heiner Bielefeldt and Michael Wiener observe, however, freedom of religion or belief remains a source of political conflict, legal controversy, and intellectual debate. In Religious Freedom Under Scrutiny, Bielefeldt and Wiener explore various critiques leveled at this right. For example, does freedom of religion contribute to the spread of Western neoliberal values to the detriment of religious and cultural diversity? Can religious freedom serve as the entry point for antifeminist agendas within the human rights framework? Drawing on their considerable experience in the field, Bielefeldt and Wiener provide a typological overview and analysis of violations around the world that illustrate the underlying principles as well as the relationship between freedom of religion or belief and other human rights.

Religious Freedom Under Scrutiny argues that without freedom of religion or belief, human rights cannot fully address our complex needs, yearnings, and vulnerabilities as human beings. Furthermore, ignoring or marginalizing freedom of religion or belief would weaken the plausibility, attractiveness, and legitimacy of the entire system of human rights.”

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