Posted on by Marc O. DeGirolami

My Remarks on Prof. Robert George’s “Making Men Moral” at 30 Years

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.

Posted on by Mark Movsesian

Legal Thought in Eastern Orthodox Christianity

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.

Posted on by Marc O. DeGirolami

A Tome of Essays on Christianity and the Law

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.

Posted on by L&R Forum

Around the Web

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.
Posted on by Mark Movsesian · 1 Comment

The Best Thanksgiving Film

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. 

You can read the whole essay here.

Posted on by Marc O. DeGirolami

George Washington’s Political Writing

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.

Posted on by L&R Forum

Around the Web

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.
  • The White House issued a Fact Sheet: Biden-⁠Harris Administration Takes Action to Address Alarming Rise of Reported Antisemitic and Islamophobic Events at Schools and on College Campuses.The Fact Sheet discusses recent initiatives taken by the Department of Justice, the Department of Education, the Department of Agriculture, and the Department of Homeland Security to prevent further antisemitic and Islamophobic incidents which have been taking place at schools and colleges since the October 7 Hamas terrorist attacks in Israel.
  • 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.
Posted on by Mark Movsesian

Criminal Law in the Acts of the Apostles

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.

I’m sure this episode appears in a new book from Cambridge University Press, Criminalization in Acts of the Apostles: Race, Rhetoric, and the Prosecution of an Early Christian Movement, by New Testament scholar Jeremy Williams (Texas Christian University). Here’s the publisher’s description:

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.

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Around the Web

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

  • In Hile v. State of Michigan, the 6th Circuit Court of Appeals ruled that a Michigan constitutional amendment prohibiting public funds from aiding private or religious schools does not violate the equal protection rights of parents. The amendment restricts the use of the Michigan Educational Savings Program from sending children to religious schools. Plaintiffs argued the amendment was motivated by anti-Catholic bias and restricted their political process rights. The court, however, expressed doubts about the political process doctrine’s applicability to religious discrimination.
  • In Snyder v. Chicago Transit Authority, an Illinois federal district court permitted a plaintiff to proceed with claims under Title VII and the Illinois Religious Freedom Restoration Act. The plaintiff was denied a religious exemption from his former employer’s COVID vaccine mandate.
  • In Kelley v. Gupta, a New York state trial court resolved a dispute within the Hare Krishna movement over a Freeport, New York temple. The court recognized the Governing Body Commission of the International Society for Krishna Consciousness (GBC) as the highest ecclesiastical authority, validating GBC’s expulsion of a defendant for practicing ritvikism, deemed by GBC a “dangerous philosophical deviation.” The court ruled in favor of GBC’s ecclesiastical authority and decisions, including the entitlement of GBC’s trustees to immediate possession of the temple and associated properties.
  • In State of Louisiana v. Neveaux, a Louisiana state appeals court dismissed a free exercise challenge alleging that a provision of a criminal procedure code allowed capital case juror dismissal for anti-capital punishment views. The court found the provision neutral and generally applicable, as it does not target specific religions and applies to anyone regardless of their stance on the death penalty.
  • In Craver v. Faith Lutheran Church, a Texas state appeals court ruled that the ecclesiastical abstention doctrine necessitated dismissal of a pastor’s lawsuit against his former church employer. The pastor’s breach of contract and fraudulent inducement claims were found to be deeply intertwined with church governance issues, making them unsuitable for secular court adjudication.
  • In response to increased antisemitic incidents in educational institutions following the October 7 Hamas attack on Israel, the U.S. Department of Education’s Assistant Secretary for Civil Rights issued a “Dear Colleague” letter. The letter reminds schools and colleges receiving federal aid of their legal obligations under Title VI of the Civil Rights Act of 1964. It emphasizes the requirement to create a discrimination-free environment for students “perceived as Jewish, Israeli, Muslim, Arab, or Palestinian,” outlining specific scenarios where discrimination must be addressed.
Posted on by Marc O. DeGirolami · 2 Comments

“Anchors Aweigh” (reviewing Hadley Arkes, “Mere Natural Law”)

I have review with that title that is both appreciative and critical of Professor Hadley Arkes’ book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, in this month’s issue of First Things. A bit:

C.S. Lewis’s Mere Christianity famously begins with vignettes of ordinary experience. People of all ages and levels of education, Lewis observes, often say things like: “How’d you like it if anyone did the same to you?” “That’s my seat, I was there first,” “Leave him alone, he isn’t doing you any harm,” “Why should you shove in first?” “Give me a bit of your orange, I gave you a bit of mine,” “Come on, you promised.” This was how Lewis introduced his readers to the natural law. Our shared moral responses in cases like these, he argued, are shaped by a universal standard of right behavior. Nobody, or almost nobody, says, “To hell with your standard”; they instead try to show that their behavior in fact conforms to it. Thus did Lewis guide his audience up the Christian mountain by the gradual path of concrete common life before ascending to more difficult theological heights.

In Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, Hadley Arkes adapts Lewis’s title and method to the natural law constitutionalism that he has developed over a lifetime of scholarship and erudition. The thread running through works such as First Things (1986, four years before the founding of this journal), Beyond the Constitution (1990), The Return of George Sutherland (1994), Natural Rights and the Right to Choose (2004), Constitutional Illusions and Anchoring Truths (2006), and others, is that the Constitution cannot be understood apart from the moral principles of the natural law that grounds it. The founding generation, Arkes has consistently argued, grasped the truths of the natural law and believed that these truths lay at the root of American constitutional government. Today, he says, we must do likewise: see beyond the constitutional text to the eternal principles of natural law antecedent to the Constitution’s ratification. What constitutional law needs is more moral argument about the natural law…

Arkes seems to be looking at our moral fractures through the wrong end of the telescope. He writes: “There has been no more common distraction over ‘rights’ than the tendency to fixate on rights to particular things, such as jobs or housing, while blocking from sight these underlying principles that mark the rightful and wrongful claims to these goods.” This is wrong, and its wrongness is illustrative of the way the book misfires. The last thing we need is more constitutional debate about high principle—about what dignity or equality or freedom or autonomy or even justice, in the abstract and divorced from ordinary life, requires of our constitutional law. In a society increasingly riven by disagreement over fundamental commitments, it is the world of the concrete, of practices, particulars, customs, habits, and traditions, that assumes ever greater importance. Or, to put it in a natural law register, we need a greater focus in constitutional law on ius—on the objects of constitutional justice—to clarify what our principles demand from our law. From the bottom up.

What we need, in a word, is a constitutionalism of things and the practices that attend them. That is what our Constitution and its law concern: voting procedures, religious observances and symbols, speech practices, families, homes, businesses, firearms, countless varieties of human relationships, schools, property and contractual arrangements, wills, government policies and programs of many kinds, and innumerable other cultural and political practices. The constitutionalism we need must shore up these practices of the past against the ruin of the present. This is why Lewis began as he did, with baby steps and quotidian cases rather than abstract principles. Seventy years after Mere Christianity, we need that approach more, not less, acutely. We are not ready—indeed, we are less ready than we have ever been—to be confronted with the empyrean of high natural law principle, which Arkes illustrates in this book with his usual verve and panache. The truths of the sky are real enough, but anchoring truths are found in the earth.