In a TV interview last month, House Speaker Mike Johnson raised eyebrows by asserting that Framers welcomed religion in public life and that the Establishment Clause protects religion from the encroachment of government, not the other way around. In this podcast, we show how Johnson was both right and wrong. Many Framers shared his view, but others did not. The controversy over Johnson’s comments is just the latest episode in a continuing debate over the meaning of religious liberty. When we argue about the past, we are really arguing about what our country should be, today. Listen in!
My essay, Establishment as Tradition, has just come out in the Yale Law Journal Forum, together with very worthwhile pieces by Professor Michael Stokes Paulsen and Professor Stephanie Barclay. These are together collected under the title, “The Religion Clauses Post-Kennedy.”
My piece is another sketch in an ongoing series of illustrations of traditionalism as an independent constitutional theory, addressing specific issues about its relationship to religion and establishment. Delighted to see traditionalism come to the YLJ.
I was delighted and honored to participate in a two-day conference marking the 30th anniversary of Professor Robert George’s deeply important book, Making Men Moral: Civil Liberties and Public Morality, organized by the Project on Constitutional Originalism and the Catholic Intellectual Tradition at The Catholic University of America, Columbus School of Law, Pepperdine University’s School of Public Policy, and the American Enterprise Institute.
I was joined by my friends, Professors Joel Alicea and Steven Smith, with Judge Thomas Griffith moderating, on the final panel concerning constitutional theory. The recording, which I’ve posted below, begins at 6:49:29 and my own presentation starts at 7:06:35. But I highly recommend all of the panel presentations and discussions.
Orthodox Christianity doesn’t receive too much attention in the Western Christian world, including the law-and-religion academy. Mostly, I think, that’s a matter of demography. The numbers of Orthodox Christians in the West are comparatively small, and, consequently, Orthodox Christianity doesn’t figure in many legal debates. But that situation seem to be changing. Earlier this fall, I posted about a new monograph on Orthodox canon law. And here is a new collection of essays from Routledge: Legal Thought and Eastern Orthodox Christianity: The Addresses of Ecumenical Patriarch Bartholomew I. The editors are Norman Doe (Cardiff) and Aetios Nikiforos (Ecumenical Patriarchate), and contributors include Center friends like John Witte, Andrea Pin, Frank Cranmer, Mark Hill, and Christy Green. Looks very interesting. Here’s the publisher’s description:
Ecumenical Patriarch Bartholomew I, the spiritual leader of Eastern Orthodox Christians worldwide, has thought profoundly about the role of law as it applies to the church, to civic life in Europe, to human rights, to religious freedom, and to the environment. In this book, leading scholars across the world reflect critically on the significance of his legal thought for human flourishing, for Christian social teaching, and for Christian unity. His legal thought is summed up in five key public addresses that he has delivered around the world in recent years, on: church law as an ecumenical instrument; the role of religion in a changing Europe; Orthodoxy and human rights; religion and freedom; and climate change, ecumenical imperatives. The collection presents critical reflections on the legal thought in these five important, distinct, and topical fields of human life. Its ten chapters, with two chapters devoted to each of his five addresses, are written by leading scholars across the world from different Christian traditions with expertise in the fields studied. They provide an analysis of the legal thought of the Patriarch, explain its significance legally, theologically, and politically, and propose its unifying value for the whole of global Christianity today. The book will be essential reading for academics and researchers working in the areas of law and religion, legal philosophy, comparative canon law, theology, and ecumenical studies.
In our most recent podcast, Mark and I spoke with Professors Julia Mahoney and Steven Smith about the prospects for a revival of classical law in America. That retrieval would depend, at least in part, upon the systematic reintroduction of Christian concepts and categories. Our guests had mixed views on the matter, reflecting different feelings about what the future might hold.
Here is a new volume of essays that seems to support Professor Mahoney’s sense of things (and to which Professor Smith contributed a chapter!): The Oxford Handbook of Christianity and Law, co-edited by our friend and law-and-religion titan, Professor John Witte, Jr., and Professor Rafael Domingo. The book is massive, and I don’t see a single chapter I am not interested to read. A must-have to usher in the season of Advent.
This volume tells the story of the interaction between Christianity and law—historically and today, in the traditional heartlands of Christianity and around the globe. Sixty new chapters by leading scholars provide authoritative but accessible accounts of foundational Christian teachings on law and legal thought over the past two millennia as well as the current interaction and contestation of law and Christianity on all continents. Several chapters explore the ways in which Christianity shaped and was shaped by core public, private, penal, and procedural laws. Other chapters analyze various old and new forms of Christian canon law, natural law theory, and religious freedom norms as well as Christian teachings on fundamental principles of law, politics, and legal order. A final cluster of chapters probe Christian contributions to controversial and cutting legal issues of migration, biotechnology, environmentalism, and racial justice. Together, the chapters make clear that Christianity and law have had a perennial and permanent influence on each other over time and across cultures, albeit with varying levels of intensity and effectiveness.
Here are some important law-and-religion news stories from around the web:
In Wiggins v. Griffin, the 2nd Circuit reversed a dismissal by a district court and allowed a Baptist inmate’s lawsuit against prison officials to proceed. The inmate claimed his religious rights were violated when he couldn’t attend religious services for over five months due to a delay in updating the list of prisoners allowed to attend services.
In Schneider v. City of Chicago, an Illinois federal district court dismissed a couple’s lawsuit alleging that the city had violated Illinois’s RFRA by requiring COVID vaccinations for large gatherings, including the couple’s wedding. The court ruled that the couple hadn’t shown the city’s health order substantially burdened their religious beliefs.
The White House announced nominations for federal circuit and district courts, including Adeel A. Mangi for the U.S. 3rd Circuit Court of Appeals. If confirmed by the Senate, Mangi would become the first Muslim American to serve on a federal appeals court.
In C.P. v. Governing Body of Jehovah’s Witnesses, a New Jersey appellate court allowed a lawsuit against Jehovah’s Witnesses congregations for negligence after a woman was abused by her grandfather, who was also a church elder. Changes in state laws allowed her to sue the congregations, alleging they knew about the abuse but failed to take proper action to provide a safe environment for children.
In Cyriaque v. Director, Ohio Department of Job and Family Services, an Ohio appellate court upheld the denial of unemployment benefits to a clinical trainer who was terminated for refusing a COVID-19 vaccine despite seeking a religious exemption. The court determined that the denial was justified as the trainer’s initial exemption request did not align with her later testimony, indicating her opposition was not based on sincere religious beliefs.
A Christian school in Vermont has filed a lawsuit in federal court challenging state rules that prevent it from participating in educational programs and athletic competitions due to regulations prohibiting discrimination based on sexual orientation or gender identity. The lawsuit claims that these rules conflict with the school’s religious beliefs regarding sexuality and gender.
A Jewish doctor is suing NYU Langone after being terminated as director of its cancer research center due to his social media posts about the Israel-Hamas conflict. Dr. Neel alleges religious discrimination as his posts were linked to his Jewish identity, while NYU Langone defends its decision, citing breaches of its Code of Conduct and Social Media Policy.
Happy Thanksgiving, everybody! It’s not the usual Forum fare, but over at First Things, I’ve written a little essay on one of my favorite films, Woody Allen’s “Broadway Danny Rose”:
Thanksgiving doesn’t inspire many movies. Yet it has a central role in one of the best movies ever made, about Thanksgiving or any other holiday: Woody Allen’s Broadway Danny Rose (1984). I make a point of watching it every November—and so should you.
True, the film trades in broad, ethnic stereotypes: It features a fast-talking, nebbishy Jewish talent agent and a crass Italian mob widow with big sunglasses. Not everyone will appreciate its Runyonesque sentimentality about New York in the early ’80s. But Broadway Danny Rose manages to be both funny and sweet. Americans nowadays don’t think of Thanksgiving as a religious holiday, but Allen foregrounds religious themes, including the need to show gratitude to God by reaching out to others. For a film by a self-consciously Jewish atheist who famously rejects religion, its meditations on God, humility, guilt, and forgiveness make Broadway Danny Rose one of the most Christian films I know.
Thanksgiving is the holiday that most perfectly reflects the political theology of America. Its distinctive blend of religious politics, and political religion. And there are few better representatives of this fusion than George Washington. Listen to the music of his political theology in this, the beginning of his famous Thanksgiving Day proclamation of 1789:
Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor– and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.
Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be– That we may then all unite in rendering unto him our sincere and humble thanks–for his kind care and protection of the People of this Country previous to their becoming a Nation–for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war–for the great degree of tranquility, union, and plenty, which we have since enjoyed–for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted–for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.
As it happens, an excellent edited collection has just been published by Carson Holloway and our dear friend and outgoing executive director of the James Madison program at Princeton, Bradford P. Wilson: The Political Writings of George Washington (Cambridge University Press). I’m told a paperback edition is in the offing as well, but this one looks well worth a holiday splurge.
The Political Writings of George Washington includes Washington’s enduring writings on politics, prudence, and statesmanship in two volumes. It is the only complete collection of his political thought, which historically, has received less attention than the writings of other leading founders such as Thomas Jefferson, James Madison, John Adams, and Alexander Hamilton. Covering his life of public service—from his young manhood, when he fought in the French and Indian Wars, through his time as commander-in-chief of the revolutionary army; his two terms as America’s first president, and his brief periods of retirement, during which he followed and commented on American politics astutely—the volumes also include first-hand accounts of Washington’s death and reflections on his legacy by those who knew or reflected deeply on his significance. The result is a more thorough understanding of Washington’s political thought and the American founding.
Here are some important law-and-religion news stories from around the web:
In Walker v. Dismas Charities, Inc., the U.S. 11th Circuit Court of Appeals rejected a Free Exercise Bivens claim by an inmate serving part of his sentence in home confinement. The inmate sued individual employees of a government contractor that contracted with the government to supervise federal prisoners serving home sentences, alleging that his sentence violated his right to free exercise of religion under the First Amendment
In Bates v. Pakseresht, the plaintiff was denied certification to adopt children through the Oregon Department of Human Services because she would not agree to use a child’s preferred pronouns and undertake other required acts that the state claims “affirm a child’s gender identity” because of her Christian beliefs. The court rejected plaintiff’s free exercise and free speech claims because she was not seeking certification to become a full parent, but instead sought certification “to house and care for a child under the state’s umbrella of protection.”
In Tosone v. Way, suit was filed in the District of New Jersey in early October challenging the New Jersey requirement that candidates filing to run for public office sign an Oath of Allegiance that ends with “so help me God.” The Acting Director of the New Jersey Division of Elections recently issued a Memo to County Clerks stating that candidates for public office now have the option of a solemn affirmation or declaration in lieu of an oath, and the phrase “so help me God” will be omitted. Counsel for plaintiffs then filed to voluntarily dismiss the suit.
in Grace Community Church- The Woodlands, Inc. v. Southern Montgomery County Municipal Utility District, Grace Community Church filed a complaint challenging a utility district’s requirement that the church pay a capital recovery fee of $83,780 rather than the actual cost of $24,900 to connect its new office building and auditorium to the district’s water system. The church alleges the fee is an unlawful tax on an otherwise tax-exempt organization, and it further violates Texas’ version of RFRA and the First Amendment’s free exercise clause.
A New York Court of Claims judge serving as an active Supreme Court Justice is being investigated and no longer handling criminal cases after the justice asked a Muslim criminal defendant to remove her niqab–a religious garment that covers most of the face–at a plea hearing on October 24.
Just the other day in my seminar, I told students one of my favorite episodes of legal process in the New Testament: Paul’s insistence that the magistrates who had illegally ordered him beaten and imprisoned without a trial–for Roman law prohibited treating Roman citizens that way–come to the prison to apologize and publicly exonerate him. And, according to the account in Acts, that’s just what the magistrates did: “The police reported [Paul’s] words to the magistrates, and they were afraid when they heard that they were Romans, so they came and apologized to them. And they took them out and asked them to leave the city.” Which goes to show that the early Christians knew how to use legal process to their advantage, at least occasionally.
In this study, Jeremy L. Williams interrogates the Book of Acts in an effort to understand how early Christian texts provide glimpses of the legal processes by which Roman officials and militarized police criminalized, prosecuted, and incarcerated people in the first and second centuries CE. Williams investigates how individuals and groups have been, and still are, prosecuted for specious reasons – because of stories and myths written against them, perceptions of alterity that render them subhuman or nonhuman, the collision of officials, and financial incentives that foster injustices, among them. Through analysis of criminalization in Acts, he demonstrates how Critical Race Theory, Black studies, and feminist rhetorical scholarship enables a reconstruction of ancient understandings of crime, judicial institutions, militarized police, punishment, and socio-political processes that criminalize. Williams’ study highlights how the criminalization of Jesus followers as depicted in Acts enables connections with contemporary movements. It also presents the ancient text as a critique against the shortcomings of some contemporary understandings of justice and human rights.
