Legal Spirits Episode 045: 303 Creative at SCOTUS Next Week

Next week, the Supreme Court will hear argument in 303 Creative LLC v. Elenis, an important case that pits free speech rights against anti-discrimination laws. A Christian web designer has challenged Colorado’s public accommodations law, arguing that the law will require her to design sites for same-sex weddings and convey messages with which she disagrees. In this episode, Marc and Mark explore several of the issues in the case, from concerns about ripeness and standing to matters of substance: free speech and compelled speech, same-sex marriage, antidiscrimination law, what distinguishes “messages” from “messengers,” and others. Listen in!

A New Book on Catholicism and Human Rights

From Cambridge University Press, here is a new book on the often forgotten contribution of Catholic thought to human rights law: Catholic Cosmopolitanism and Human Rights, by scholar Leonard Francis Taylor (National University of Ireland–Galway). The publisher’s description follows:

It is because Catholicism played such a formative role in the construction of Western legal culture that it is the focal point of this enquiry. The account of international law from its origin in the treaties of Westphalia, and located in the writing of the Grotian tradition, had lost contact with another cosmopolitan history of international law that reappeared with the growth of the early twentieth century human rights movement. The beginnings of the human rights movement, grounded in democratic sovereign power, returned to that moral vocabulary to promote the further growth of international order in the twentieth century. In recognising this technique of periodically returning to Western cosmopolitan legal culture, this book endeavours to provide a more complete account of the human rights project that factors in the contribution that cosmopolitan Catholicism made to a general theory of sovereignty, international law and human rights.

  • Provides an engaging narrative on the integration of democratic and human rights norms into Catholicism, which in turn promoted those values through Christianity’s global reach
  • A valuable historical survey of Catholicism as a cosmopolitan project from the medieval to the modern era
  • Undertakes to provide a critical narrative of the development and direction of international law as it was characterised by Catholic preoccupations from the medieval and early modern era

The Religion of Unpolluted Human Ignorance (or, You’re Perfect Just the Way You Are)

I recently read, for the first time, Jean-Jacques Rousseau’s “Discourse on the Arts and Sciences,” regularly referred to as the “First Discourse” to distinguish it from the more famous, second “Discourse on the Origins and the Foundations of Inequality Among Mankind.” The First Discourse is a short thing, not more than 20 pages or so, but extraordinary in its biting observations on the positive wickedness and pretension of hubristic aspiration to scientific and humanistic knowledge and improvement. “That opaque veil with which Wisdom cloaked her actions should have warned us that we were not destined for a vain quest for knowledge. Is there a single one of her lessons from which we have profited or which we have neglected with impunity? Let all nations once and for all realize that nature wanted to protect us from knowledge, just as a mother snatches a dangerous weapon from the hands of her child. Let them know that all the secrets she hides from us are so many ills from which she protects us and that the very difficulty they encounter in searching for knowledge is not the least of her kindnesses. Men are perverse; but they would be far worse if they had had the misfortune to be born learned.”

The First Discourse ought to be read by everyone who is part of the knowledge class, as a bit of cold water on the pretensions of the ostensibly learned. But quite apart from its incisive criticisms (and there are quite a few), the First Discourse contains several themes that run through Rousseau’s broader body of work–especially the natural, unadulterated, internal goodness of humanity, the depravity and corrupting influence of social conditions and culture, and the importance of resisting this cultural pressure in being true to what or who one “really” is, uncorrupted by social expectations, knowledge, learning, and so on. As it happens, these are themes that are also crucial for understanding the present moment in American social and cultural life.

A new book, Rousseau’s God: Theology, Religion, and the Natural Goodness of Man (University of Chicago Press), by John T. Scott, develops many of these themes across Rousseau’s writing.

John T. Scott offers a comprehensive interpretation of Rousseau’s theological and religious thought, both in its own right and in relation to Rousseau’s broader oeuvre. In chapters focused on different key writings, Scott reveals recurrent themes in Rousseau’s views on the subject and traces their evolution over time. He shows that two concepts—truth and utility—are integral to Rousseau’s writings on religion. Doing so helps to explain some of Rousseau’s disagreements with his contemporaries: their different views on religion and theology stem from different understandings of human nature and the proper role of science in human life. Rousseau emphasizes not just what is true, but also what is useful—psychologically, morally, and politically—for human beings. Comprehensive and nuanced, Rousseau’s God is vital to understanding key categories of Rousseau’s thought.

Around the Web

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

  • In Holston United Methodist Home for Children, Inc. v. Becerra, a Tennessee federal district court held that a religiously affiliated children’s home that places children for foster care or adoption lacks standing to challenge a 2016 anti-discrimination rule promulgated by the Department of Health and Human Services. 
  • In American College of Pediatricians v. Becerra, a Tennessee federal district court dismissed for lack of standing a challenge to a rule promulgated by the Department of Health and Human Services that barred discrimination on the basis of gender identity in the furnishing of health care. The court also concluded that the plaintiffs lack standing to challenge an HHS rule requiring grant recipients to recognize same-sex marriages. 
  • In Kim v. Board of Education of Howard County, a Maryland federal district court rejected both equal protection and free exercise challenges to the manner in which the student members of the eight-member Howard County School Board are selected. 
  • Suit was filed in an Ohio federal district court challenging a school district’s rule change that allows transgender students to use restrooms and locker rooms that conform to their gender identity. In Doe No. 1 v. Bethel Local School District Board of Education, Plaintiffs, who identify as Muslims and Christians, claim, among other things, that the new rules violate their free exercise and equal protection rights, their parental rights, and Title IX. 
  • Suit has been filed by the former head football coach for Washington State University, who was fired after refusing on religious grounds to comply with the state’s Covid vaccine mandate for state employees. The Athletic Department refused to grant him a religious accommodation, questioning the sincerity of his religious objections as well as the University’s ability to accommodate his objections. The complaint in Rolovich v. Washington State University alleges that the coach’s firing amounts to religious discrimination in violation of state and federal law and infringement of the plaintiff’s free exercise and due process rights. 
  • In In re Covid Related Restrictions on Religious Services, the Delaware Court of Chancery held that a challenge by religious leaders to now-lifted Covid-related restrictions on religious services should be brought in Superior Court, not in Delaware’s Chancery Court, which is limited to providing equitable relief. 

Aquinas on Aristotle (Jerusalem on Athens?)

One of the most enjoyable parts (for me, at least!) of my “Jurisprudence, Justice, and Politics” course last year was reading selections of Aristotle and St. Thomas with my students, and observing both continuities and crucial differences in their accounts of law, virtue, justice, the good life, and so many others. These similarities and contrasts go very much to the heart of the “law and religion” project that our Center has as its mission. Here is what looks like a wonderful and deeply erudite new book by the late Fr. Leo Elders, an eminent scholar of Aquinas, on these very subjects: Reading Aristotle With Thomas Aquinas: His Commentaries on Aristotle’s Major Works (CUA Press), released early next year.

Reading Aristotle with Thomas Aquinas: His Commentaries on Aristotle’s Major Works offers an original and decisive work for the understanding of the thought of Thomas Aquinas. For decades his commentaries on the major works of Aristotle have been the subject of lively discussions. Are his commentaries faithful and reliable expositions of the Stagirite’s thought or do they contain Thomas’s own philosophy and are they read through the lens of Thomas’s own Christian faith and in doing so possibly distorting Aristotle?

In order to be able to provide clarity and offer a nuanced response to this question a careful study of all the relevant texts is needed. This is precisely what the author sets out do to in this work.

Each chapter is devoted to one of the twelve commentaries Thomas wrote on major works of Aristotle including both his massive and influential commentaries on the Metaphysics, Physics and Nicomachean Ethics as well as lesser known commentaries. Elders places Thomas’s commentary in its historical context, reviews the Greek, Arabic and Latin translation and reception of Aristotle’s text as well as contemporary interpretations thereof and presents the reader with a thorough presentation and analysis of the content of the commentary, drawing attention to all the places where Thomas intervenes and makes special observations. In this way the reader can study Aristotle’s treatises with Thomas as guide.

The conclusion reached is that Thomas’s commentaries are a masterful and faithful presentation of Aristotle’s thought and of that of Thomas himself. Thomas’s Christian faith does not falsify Aristotle’s text, but gives occasionally an outlook at what lies behind philosophical thought.

Around the Web

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

  • In M.A. v. Rockland County Department of Health, the Second Circuit sent back to the trial court a free exercise challenge to Rockland County, New York’s, Emergency Declaration barring children who were not vaccinated against measles from places of public assembly. Children with medical exceptions were exempt from the ban. In remanding the case, the Second Circuit stated there were factual issues relevant to whether the Emergency Declaration was neutral and generally applicable and held the district court erred in granting summary judgment in favor of Defendants. 
  • In Barbee v. Collier, the Fifth Circuit vacated and remanded for further proceedings an injunction issued by a Texas federal district court that barred the execution of a convicted murderer, Stephen Barbee, until the Texas Department of Criminal Justice publishes a clear policy on inmates’ religious rights in the execution chamber. Barbee wants his spiritual advisor to pray aloud with him and hold his hand. 
  • In Horizon Christian School v. Brown, the Ninth Circuit held that the free exercise and parental rights challenges to Oregon’s previous Covid restrictions on in-person school classes are moot.
  • In Tucker v. Faith Bible Chapel International, the Tenth Circuit denied en banc review of a panel decision that held that interlocutory appeals from the denial of a ministerial exception defense are not permitted. In the case, a former high school teacher and administrator/chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school. 
  • In Eris Evolution, LLC v. Bradley, a New York federal district court rejected an Establishment Clause challenge to a provision in New York’s liquor laws that allows bars to apply for permits to stay open all night on New Year’s, except for when New Year’s falls on a Sunday. The court concluded that the U.S. Supreme Court’s 1961 decision in McGowan v. Maryland upholding Sunday closing laws forecloses Plaintiff’s claim. 
  • In Khan v. Station House Officer, a Pakistani appellate court held that Pakistan Criminal Code Sec. 295A, which prohibits deliberate and malicious insulting of religious beliefs, was not violated by the petitioner when he told the public that he could fly and that he saw Allah in his dreams. 
  • The U.S. Commission on International Religious Freedom issued a report titled Implications of Laws Promoting State-Favored Religions. The report identified seventy-eight countries with official or favored religions, fifty-seven of which maintain laws or policies that lead to religious discrimination or repression, or that have the potential to do so. 

“My Faith in the Constitution is Whole”

As recently as a generation ago, America’s civil religion centered on the Constitution. A good example can be found in the speeches of progressive Congresswoman Barbara Jordan, famous as a member of the Watergate committee, who often referred to her “faith” in the Constitution as the guiding principle of her public life. Times change; it’s hard to imagine progressive politicians referring to the Constitution in such an uncomplicatedly affirmative way today. Readers can decide for themselves why that is so. The book is “My Faith in the Constitution is Whole”: Barbara Jordan and the Politics of Scripture, by Robin L. Owens (Mount Saint Mary’s University in Los Angeles). The publisher is the Georgetown University Press. Here’s the publisher’s description:

US Congresswoman Barbara Jordan is well-known as an interpreter and defender of the Constitution, particularly through her landmark speech during Richard Nixon’s 1974 impeachment hearings. However, before she developed faith in the Constitution, Jordan had faith in Christianity. In “My Faith in the Constitution is Whole”: Barbara Jordan and the Politics of Scripture, Robin L. Owens shows how Jordan turned her religious faith and her faith in the Constitution into a powerful civil religious expression of her social activism.

Owens begins by examining the lives and work of the nineteenth-century Black female orator-activists Maria W. Stewart and Anna Julia Cooper. Stewart and Cooper fought for emancipation and women’s rights by “scripturalizing,” or using religious scriptures to engage in political debate. Owens then demonstrates how Jordan built upon this tradition by treating the Constitution as an American “scripture” to advocate for racial justice and gender equality. Case studies of key speeches throughout Jordan’s career show how she quoted the Constitution and other founding documents as sacred texts, used them as sociolinguistic resources, and employed a discursive rhetorical strategy of indirection known as “signifying on scriptures.”

Jordan’s particular use of the Constitution—deeply connected with her background and religious, racial, and gender identity—represents the agency and power reflected in her speeches. Jordan’s strategies also illustrate a broader phenomenon of scripturalization outside of institutional religion and its rhetorical and interpretive possibilities.

Panel on Traditionalism and Originalism at Georgetown Today

I’m down at Georgetown Law School today for a lunchtime presentation on “Dobbs and Bruen: History, Tradition, and Originalism,” hosted by the Georgetown Center for the Constitution. I’m looking forward to catching up with my old professors, Larry Solum and Randy Barnett, and to meeting and chatting with students about traditionalism and originalism at the Court.

Christianity’s Cultural Authority

In many of the accusations of “Christian nationalism” that one hears today, the true complaint seems to be that Christianity continues to wield an outsized, or, at least, an undesirably outsized (from the accuser’s point of view), political and (especially) cultural authority. Though one may debate the matter in today’s world, the accusation is, so far as it goes in this way, historically accurate. Christianity has, in fact, been the dominant religion of the Western political and cultural world. Indeed, some might even say that one may measure the success of any given religion, defined broadly, by the extent to which it can subsume the state and the culture into its rituals, practices, strictures, beliefs, and ways of life.

A new book traces this history of politico-cultural dominance in the early medieval period: Christendom: The Triumph of a Religion, AD 300-1300 (Penguin Press), by Peter Heather.

In the fourth century AD, a new faith exploded out of Palestine. Overwhelming the paganism of Rome, and converting the Emperor Constantine in the process, it resoundingly defeated a host of other rivals. Almost a thousand years later, all of Europe was controlled by Christian rulers, and the religion, ingrained within culture and society, exercised a monolithic hold over its population. But, as Peter Heather shows in this compelling history, there was nothing inevitable about Christendom’s rise to Europe-wide dominance.

In exploring how the Christian religion became such a defining feature of the European landscape, and how a small sect of isolated congregations was transformed into a mass movement centrally directed from Rome, Heather shows how Christendom constantly battled against both so-called ‘heresies’ and other forms of belief. From the crisis that followed the collapse of the Roman Empire, which left the religion teetering on the edge of extinction, to the astonishing revolution in which the Papacy emerged as the head of a vast international corporation, Heather traces Christendom’s chameleon-like capacity for self-reinvention and willingness to mobilize well-directed force.

Christendom’s achievement was not, or not only, to define official Christianity, but – from its scholars and its lawyers, to its provincial officials and missionaries in far-flung corners of the continent – to transform it into an institution that wielded effective religious authority across nearly all of the disparate peoples of medieval Europe. This is its extraordinary story.

Around the Web

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

  • The U.S. Supreme Court heard oral arguments in Haaland v. Brackeen. At issue is the constitutionality of the Indian Child Welfare Act of 1978, which attempts to prevent child welfare and adoption agencies from placing Native American children outside their tribe. Issues of religion and religious culture underlie the controversy in the four consolidated cases heard. 
  • An Emergency Application for an Injunction Pending Appellate Review was filed with the U.S. Supreme Court in New Yorkers for Religious Liberty v. City of New York. The petition seeks an injunction against enforcing New York City’s Covid vaccine mandate for city workers against those with religious objections to the vaccine. 
  • In Richardson v. Clarke, the Fourth Circuit held that a prison’s former policy requiring inmates to remove head coverings, including religious head coverings, in certain areas of the prison imposed a substantial burden on Plaintiff’s religious exercise. 
  • Suit was filed in a New York federal district court challenging the constitutionality of New York’s ban on carrying firearms in houses of worship. The complaint in His Tabernacle Family Church, Inc. v. Nigrelli alleges that the ban violates the Free Exercise Clause, Establishment Clause, Second Amendment, and the equal protection rights of a church and its pastor. 
  • In Dunbar v. Disney, a California federal district court dismissed an amended complaint filed by actor Rockmond Dunbar in his Title VII disparate-impact religious discrimination claim against Walt Disney Company. His disparate impact claim was initially rejected because Dunbar could not identify other Universal Wisdom Church members who were similarly impacted by a Covid vaccine mandate. 
  • In Loste v. France, the European Court of Human Rights, in a Chamber judgment, held that France’s child welfare service violated Article IX of the European Convention on Human Rights when it failed to assure that a Jehovah’s Witness foster family was respecting the Muslim beliefs of its foster child’s birth family.