Around the Web

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

  •  In Lowe v. Mills, the 1st Circuit reversed in part a Maine district court’s dismissal of a suit byhealth care facility workers who were denied religious exemptions from the state’s COVID vaccine mandate. The court affirmed dismissal of the Title VII claims, but allowed plaintiffs’ Free Exercise and Equal Protection claims to go forward.
  • In Ratlliff v. Wycliffe Associates, Inc., the Middle District of Florida refused to dismiss a Title VII employment discrimination suit brought by a software developer who was fired from a Bible translation company after the company learned that he had entered a same-sex marriage. The court rejected the company’s RFRA and ministerial exception defenses.
  • In Tatel v. Mt. Lebanon School District (II)the Western District of Pennsylvania held that parents of first-grade students asserted plausible claims that their due process and free exercise rights were violated by a teacher who discussed gender identity with young students. The court found that the teacher’s discussion “conflicts with [the Plaintiffs’] sincerely held religious and moral beliefs.”
  • In Rolovich v. Washington State University, the Eastern District of Washington refused to dismiss a Title VII failure-to-accommodate claim by the head football coach of Washington State University. The coach was terminated after he refused to comply with the state’s Covid vaccine mandate on religious grounds, and the court found that he had done enough at the pleading stage to show a sincerely held religious belief.
  • The EEOC announced that it has filed a Title VII suit against Triple Canopy, Inc., for failing to reasonably accommodate an employee’s religious beliefs. The employee maintained that he “did not belong to a formal religious denomination but nonetheless held a Christian belief that men must wear beards.” The employer discharged him because he could not obtain a supporting statement from a religious leader.
  • The Becket Fund for Religious Liberty filed suit in the United States District Court for the District of Minnesota challenging a Minnesota law that excludes religious universities from a program that allows high school students to obtain no-cost college credit. 

Loathing Ourselves

An interesting feature of a society built on the intellectual and cultural cornerstone of a progressive philosophy of history–the view that a society advances linearly toward a more universally just, rational, and equal world–is that it tends to excite hatred of the customs and practices of its past, imperfect self. The phenomenon is particularly acute for more mature, materially and socially successful societies, because it is these societies that can afford a well-to-do, highly educated, elite social stratum, which separates itself from those self-same customs and practices. The seeds of self-loathing are therefore contained within the successful society and a cyclical marker of its decline.

Something like this seems to be the thesis of an interesting new book: Western Self-Contempt: Oikophobia in the Decline of Civilizations (Cornell University Press) by Benedict Beckeld.

Western Self-Contempt travels through civilizations since antiquity, examining major political events and the literature of ancient Greece, Rome, France, Britain, and the United States, to study evidence of cultural self-hatred and its cyclical recurrence. Benedict Beckeld explores oikophobia, described by its coiner Sir Roger Scruton as “the felt need to denigrate the customs, culture and institutions that are identifiably ‘ours,'” in its political and philosophical applications. Beckeld analyzes the theories behind oikophobia along with their historical sources, revealing why oikophobia is best described as a cultural malaise that befalls civilizations during their declining days.

Beckeld gives a framework for why today’s society is so fragmented and self-critical. He demonstrates that oikophobia is the antithesis of xenophobia. By this definition, the riots and civil unrest in the summer of 2020 were an expression of oikophobia. Excessive political correctness that attacks tradition and history is an expression of oikophobia. Beckeld argues that if we are to understand these behaviors and attitudes, we must understand oikophobia as a sociohistorical phenomenon.

Western Self-Contempt is a systematic analysis of oikophobia, combining political philosophy and history to examine how Western civilizations and cultures evolve from naïve and self-promoting beginnings to states of self-loathing and decline. Concluding with a philosophical portrait of an increasingly interconnected Western civilization, Beckeld reveals how past events and ideologies, both in the US and in Europe, have led to a modern culture of self-questioning and self-rejection.

On Why the West Should Not Abandon Armenia

In First Things today, I have an essay on the continuing crisis in Karabakh, where 120,000 Armenians face a real threat of ethnic cleansing by the Aliyev regime in Baku. I argue that Baku has so far played a double game, cozying up to Moscow while avoiding sanctions by hinting at potential benefits to the West. It’s time for that to stop. The West needs to do more to encourage Baku to negotiate about resolving the Karabakh crisis in good faith. Here’s a sample:

But without sanctions or other serious action, Aliyev will continue to treat Armenian concessions as invitations to engage in further aggression. For example, in negotiations in Brussels last month, both Armenia and Azerbaijan agreed to recognize each other’s territorial integrity and discussed reopening railway connections based on mutual reciprocity. Pashinyan subsequently confirmed that Armenia was ready to recognize Azeri sovereignty over Karabakh (provided arrangements could be made to guarantee Armenians’ security there)—a painful public concession, apparently made at the urging of the U.S., which caused anger in Karabakh itself.

How did Aliyev respond? After Pashinyan’s statement, Aliyev again threatened Karabakh Armenians with ethnic cleansing and, for good measure, threatened Armenia as well. Armenia would have to agree to Azerbaijan’s demands with respect to border demarcation, he announced, or face further aggression. “The border will pass where we say,” Aliyev crowed. “They know that we can do it. No one will help them.” A bewildered Pashinyan asked whether Aliyev was already abandoning the position he had taken in Brussels and demanded clarification. The U.S. has not yet responded.

Since Russia invaded Ukraine, American and European leaders have spoken of the need to defend democracy and self-determination against authoritarian aggression. That is precisely what is needed in the South Caucasus now. At the very least, Western sanctions against the Aliyev regime should be on the table. Even in realist terms, it would not be in the West’s interest to abandon Armenia, which is looking to reorient itself and which can serve, in time, as an important bridge between the West, the South Caucasus, and beyond. Unless the West creates greater incentives for Azerbaijan to negotiate in good faith, however, a humanitarian crisis looks about to unfold.

Law and Religion in Judaism and Christianity

Jews and Christians–or, more correctly, Judaism and Christianity–have been contesting the place and purpose of law for two thousand years. It’s a debate that never exhausts itself, because each religion has defined itself largely as against the other, and law has been one of the central points of controversy. This month, the British publisher, James Clarke & Co., releases an addition to the debate, Law and Religion: Essays on the Place of the Law in Israel and Early Christianity, edited by the late Biblical scholar Barnabas Lindars of the University of Manchester. The book’s introduction indicates that most of the papers date from decades ago, so I’m not sure why the collection is appearing only now. Anyway, the table of contents looks very interesting. Here’s the publisher’s description:

The place of the Law and its relationship to religious observance and faith is a contested topic in the study of both the Old and New Testament. In Law and Religion, members of the Erhardt Seminar group provide an insight into the debate, probing key topics and offering new contributions to the subject. Their essays are grouped into three sections, focusing in turn on the Law’s place in Israelite religion, in the Jesus tradition, and in Paul and the Apostolic tradition.

Thus, the foundation of the connection between law and religion in ancient Israel is explored, along with the decisive influence of the Deuteronomic reform and the radical new understanding now emerging of the later development in Judaism of the New Testament Period. So, also, the contemporary challenge to the conventional picture of Jesus and the Law is addressed, the attitude of Paul is shown in new light, and post-Pauline developments are examined. Readers will find in this symposium a refreshing breadth of opinion on a debate that spans the gamut of disciplines within Biblical studies.

Scruton & Manent on Politics & Religion

I’m now reading Daniel J. Mahoney’s short book on the political thought of the late Sir Roger Scruton (whom Mark and I had the honor of hosting for the second leg of the Tradition Project–see below for his talk) and Pierre Manent. Dan argues that these philosophers share a common project to “recover the meaning of politics, civilization, and the soul” from the depredations of various “late modern dogmas.” He is aware of their differences but he focuses in these essays on their many affinities, including their similar views of secularism and the modern state (in my office, I have a signed copy of Scruton’s The Soul of the World, where he takes on some of these matters with great sensitivity and depth). Dan’s book is Recovering Politics, Civilization, and the Soul: Essays on Pierre Manent and Roger Scruton (St. Augustine Press).

The Western inheritance is under sustained theoretical and practical assault. Legitimate self-criticism has given way to nihilistic self-loathing and cultural, moral, and political repudiation is the order of the day. Yet, as Daniel J. Mahoney shows in this learned, eloquent, and provocative set of essays, two contemporary philosophic thinkers, Roger Scruton and Pierre Manent, have––separately and together––traced a path for the renewal of politics and practical reason, our civilized inheritance, the natural moral law, and the soul as the enduring site of self-conscious reflection, moral and civic agency, and mutual accountability.

Both Scruton and Manent have repudiated the fashionable nihilism associated with the “thought of 1968” and the “Parisian nonsense machine,” and have shown that gratitude is the proper response of the human person to the “givenness of things.” Both defend the self-governing nation against reckless nationalism and the even more reckless temptation of supranational governance and post-political  democracy, what Manent suggestively calls a “kratos” without a “demos.” Both defend the secular state while taking aim at a radical secularism that rejects “the Christian mark” that is at the heart of our inheritance and that sustains the rich and necessary interpenetration of truth and liberty. Scruton’s more “cultural” perspective is indebted to Burke and Kant; Manent’s more political perspective draws on Aristotle, St. Thomas, Tocqueville, and Raymond Aron, among others. By highlighting their affinities, and reflecting on their instructive differences, Mahoney shows how, together, the English man of letters Scruton, and the French political philosopher Manent, guide us to the recovery of a horizon of thought and action animated by practical reason and the wellsprings of the human soul. They show us the humanizing path forward, but first we must make the necessary spiritual decision to repudiate repudiation once and for all.

Around the Web

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

  • In White v. Goforth, the Sixth Circuit ruled that Sheriff’s Deputy Jacob Goforth had qualified immunity in a suit accusing him of failing to intervene in a coerced baptism by Officer Daniel Wilkey. The court explained that while Wilkey’s actions might have violated the Establishment Clause of the First Amendment, there was no evidence that Goforth knew of the improper quid pro quo. The court further clarified that even if there had been perceived government endorsement of religion, it would not have been clearly established that Goforth had a duty to intervene.
  • In Sangervasi v. City of San Jose, a California federal court dismissed police officer William Sangervasi’s lawsuit challenging the San Jose Police Department’s refusal to adopt his proposed patch and flag designs, some featuring religious themes. The court rejected Sangervasi’s claims of free exercise, free speech, and equal protection, stating, “the City has not created a public forum in which Mr. Sangervasi has a right to express any views” and “the SJPD’s patch designs amount to government speech and do not burden Mr. Sangervasi’s religious practice.”
  • In Caekaert v. Watchtower Bible and Tract Society of New York, a Montana federal district court addressed the clergy-penitent privilege regarding documents withheld by the Jehovah’s Witnesses parent body concerning reports of known child molesters. The court stated that while it recognizes deference to religious groups in organizing their internal affairs, this doesn’t grant the religious organization the right to define what is privileged solely based on its doctrine. The court also noted that the privilege extends to non-penitential statements made during the church’s disciplinary process.
  • Muslim and Christian parents filed suit against the Montgomery County School Board in Maryland, objecting to the introduction of “Pride Storybooks” in pre-K and elementary school education. They allege the policy violates their rights to free exercise and free speech, and their right to control their children’s education, claiming that it “discourages a biological understanding of human sexuality” and “precludes religious viewpoints on the topics of sexual orientation and gender identity,” which they argue is unconstitutional.
  • The Texas legislature passed SB763, permitting public schools to employ or accept volunteer chaplains to support students, without needing teacher certification. Proposed amendments requiring chaplain accreditation similar to prison or military standards, parent consent for chaplain interaction, and requirements to provide chaplains from any faith requested, were all defeated. The bill stipulates that chaplains undergo a criminal history review and not have been convicted of specific sex-related offenses.
  • The White House has released “The U.S. National Strategy to Counter Antisemitism,” a 60-page strategy with four pillars aimed at addressing antisemitism in America. The document provides over 100 planned actions to increase awareness of antisemitism and improve safety for Jewish communities. The strategy also defines antisemitism as “a pernicious conspiracy theory that often features myths about Jewish power and control” and endorses the 2016 International Holocaust Remembrance Alliance’s working definition of antisemitism.

A New Study of Fatwas in Islamic Law

Even people who know little about Islamic law have heard of the fatwa: an opinion, issued by a qualified scholar, or mufti, on a question of Islamic law. In classical thought, a fatwa is not binding in itself; its authority is persuasive and dependent largely on the learning and reputation of the mufti who issues it. The relationship in Islamic law between fatwas and court judgments, which are binding, is a fascinating one and worthy of sustained study.

A new book from Cambridge, Fatwa and the Making and Renewal of Islamic Law
From the Classical Period to the Present
, explores the history of the practice. The author is Omer Awass (American Islamic College). Here’s the publisher’s description:

In this book, Omer Awass examines the formation, history, and transformation of the Islamic legal discourse and institutions through the lens of a particular legal practice: the issuance of fatwas (legal opinions). Tracing the growth of Islamic law over a vast geographical expanse -from Andalusia to India – and a long temporal span – from the 7th to the 21st century, he conceptualizes fatwas as the ‘atomic units’ of Islamic law. Awass argues that they have been a crucial element in the establishment of an Islamic legal tradition. He also provides numerous case studies that touch on economic, social, political, and religious topics. Written in an accessible style, this volume is the first to offer a comprehensive investigation of fatwas within such a broad spatio-temporal scope. It demonstrates how instrumental fatwas have been to the formation of Islamic legal traditions and institutions, as well as their unique forms of reasoning.

Legal Spirits 051: The Biden Administration’s Guidance on Prayer in Public Schools

In this episode, Marc and Mark offer some thoughts about the Biden Administration Department of Education’s guidance issued earlier this month (the first since 2020) on prayer and religious expression in public schools. The new guidance largely avoids much discussion of the newest Supreme Court decision on the matter, Kennedy v. Bremerton School District, and does not mention the Court’s new text and tradition test at all. Marc and Mark offer some explanations (and entertain a few gentlemanly disagreements!) about just why that might be. Listen in!

Around the Web

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

  • In United States v. Hari, the 8th Circuit upheld the constitutionality of 18 USC §247, which prohibits the damaging of religious real property because of the religious character of the property. The case involved an attack on the Dar al-Farooq Islamic Center in Bloomington, Minnesota.
  • In Keene v. City and County of San Francisco, the 9th Circuit reversed and remanded a ruling that denied preliminary relief to city and county employees who were denied religious exemptions from San Francisco’s COVID vaccine mandate. 
  • In Williams v. Board of Education of the City of Chicago, the Northern District of Illinois denied summary judgment on an Establishment Clause challenge to a high school’s elective instruction in Transcendental Meditation .
  • In The Satanic Temple, Inc. v. City of Chicago, the Satanic Temple filed suit in the Northern District of Illinois alleging that the city’s exclusion of its clergy from delivering an invocation before Chicago City Council violated the First Amendment’s Establishment Clause.
  • The EEOC announced that it filed a Title VII religious discrimination suit in a North Carolina federal district court against a Charlotte IHOP restaurant for failing to reasonably accommodate an employee’s religious exercise. The restaurant allegedly fired an employee who refused to work on Sundays.
  • The U.S. Department of Education issued an updated Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools that states in part that “The Constitution does not . . . prohibit school employees themselves from engaging in private prayer during the workday where they are not acting in their official capacities and where their prayer does not result in any coercion of students.” However, “teachers, school administrators, and other school employees may not encourage or discourage private prayer or other religious activity.”

The Catholic (or catholic?) and the Common Law traditions

Taking a break from the regular book posts to flag a very interesting article by Professor Samuel Bray (Notre Dame Law School). The piece is The Influence of the Catholic Tradition on the Common Law, and it discusses three ways in which Catholic thought shaped the common law tradition. One of the difficulties in such a project, Sam says, is that the common law tradition is largely a post-16th century English phenomenon, when the role of Catholicism was, shall we say, diminished. Here is the abstract of the piece, followed by a few little reflections:

This essay considers the influence of the Catholic intellectual tradition on the common law. As a preliminary matter, the essay notes that the term “Catholic intellectual tradition” is of recent vintage, though its referent is much older. It identifies three mechanisms of influence: inheriting, conversing, and generating. For inheriting, the essay notes that some common law doctrines, such as the Chancellor’s conscience, were inherited from the Catholic intellectual tradition. For conversing, the essay notes the conversation across confessional boundaries in early modern Europe, which was facilitated by the use of Latin and scholastic curricula well after the Reformation. This point, while familiar to early modern intellectual historians because of revisionist work over the last quarter century, may be surprising to legal scholars. Finally, for generating, this essay shows that the common law judges, by their own lights, were participants in the Catholic intellectual tradition. This is demonstrated, for example, by analysis of Chief Justice Vaughan’s opinion in Thomas v. Sorrell (1673/4). When this intellectual tradition is viewed without anachronistic narrowness, its influence on the common law is substantial.

The piece is short, sweet, and full of great learning and insight. I highly recommend it. One rapid thought on the “anachronistic narrowness” point quoted above in the abstract. On what he calls the “generative” influence of Catholic thought on the common law, Sam argues very interestingly that the division of Catholic Intellectual Tradition from Protestant thought is likely of relatively recent vintage (say, the 19th century or so, especially in the resistance of the Church to modernity during that period), and that the common lawyers of the early period of the common law did think of themselves as working from (and perhaps even within) the Catholic Intellectual Tradition. One might call it instead the catholic intellectual tradition that is, Sam suggests, the tradition that had influence on the early common law–the Western Christian or Christian apostolic tradition unbound by today’s anachronistic divisions.

There are some comparatively small questions I had about some of Sam’s more specific claims. He says, for example, that each “side”–“Roman” and “non-Roman”–argued in “Newmanesque” fashion that “whoever did not change or augment the deposit of faith was the truly catholic side.” But is this really a full description of the disagreements that were themselves generated in and just after the period Sam surveys? There are not too many people in this world who would like more to believe that everybody is actually, deep down, a traditionalist. But disagreements about tradition and development (a/k/a change), it seems to me, eventually led to Cardinal Newman’s own position, decisions, and intellectual contribution. I wonder whether they materialized quite as late as Sam suggests.

Nevertheless, in highlighting one of Sam’s perhaps more controversial points above, I want to emphasize that Sam seems to me quite correct on all three influences with respect to the thought of learned commentators such as Coke, Hale, St. German, and others (perhaps even as late as Mansfield and Blackstone, for example), as well as judges such as the one who wrote the lead opinion in cases like Thomas v. Sorrell (1673/4). “[G]iven the cross-confessional argument and pollination in the early modern period across the republic of letters,” Sam contends, “it is plausible to think that sharply demarcated “Catholic” and “Protestant” intellectual traditions are from a later time.” As I say, just when that “later time” began is difficult to determine, as Sam properly acknowledges (the 19th century seems quite late, indeed), but at least as to the earlier common law writers, his view seems (to this admitted non-expert in English legal history) persuasive.

At any rate, check out this very fine piece.